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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Ninga MBI -v- Minister for Justice and Equality & Ors [2012] IEHC 125 (23 March 2012) URL: http://www.bailii.org/ie/cases/IEHC/2012/H125.html Cite as: [2012] IEHC 125 |
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Judgment Title: Ninga MBI -v- Minister for Justice and Equality & Ors Neutral Citation: [2012] IEHC 125 High Court Record Number: 2011 766JR Date of Delivery: 23/03/2012 Court: High Court Composition of Court: Judgment by: Cross J. Status of Judgment: Approved |
Neutral Citation Number [2012] IEHC 125 THE HIGH COURT JUDICIAL REVIEW [2011 No. 766 J.R.] BETWEEN OLIVER NINGA MBI APPLICANT AND
MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS JUDGMENT of Mr. Justice Kevin Cross delivered the 23rd day of March, 2012 1. In the above proceedings, the applicant is applying for leave for judicial review by way of certiorari and other reliefs concerning first of all the decision of the first named respondent to refuse to grant the applicant subsidiary protection and secondly, to the deportation order issued in respect of the applicant. 2. It is accepted that in the case of the application for leave for judicial review in respect of the subsidiary protection decision that the standard applicable is arguable grounds and in the case of the deportation order, it is substantial grounds. It is also accepted that if the application for judicial review in respect of the subsidiary protection decision is granted that the application in respect of the deportation order must follow. The applicant requires an extension of time in respect of the deportation order application which was brought some two weeks outside the time stipulated by law (fourteen days). The applicant has sought leave and been granted leave to file a supplementary affidavit explaining the reasons for the delay indicating that he immediately consulted his then solicitors (the Legal Aid Board) and they advised that they could not be of assistance and that one week later he contacted his present solicitors to arranged to meet him and he furnished instructions on 5th August, 2011, to challenge the deportation order and subsidiary protection order and counsel was briefed and a meeting was held on 24th August, 2011, which was the date of the motion. 3. In the circumstances, I will grant the applicant the extension of time required to challenge the deportation order. History 5. The applicant alleges that on 22nd March, 2007, he was summonsed to the MLC headquarters to deal with a situation where the power supply had been cut (he is a trained electrical engineer) and while he was there, gunshots were heard and he found himself in the middle of a gunfight between the MLC followers and government forces who were seeking to disarm the MLC members. 6. The applicant alleges that while trying to escape he was arrested by government troops and taken to a police station and that he was tortured, deprived of food and water and threatened with execution. In particular, he was asked to reveal the location of the leader of the MLC, Mr. Benba. 7. The applicant says that he was blindfolded, stabbed in the back and hit over the head with the butt of a gun which caused him to bleed and fall unconscious and his head was bandaged and he escaped on payment of US$2,000 thanks to the intervention of a nurse and eventually fetched up within the State. 8. On 17th February, 2008, the applicant completed an application for refugee status and the Refugee Legal Service (RLS) submitted documentation in support of his application on 20th May, 2008 and requested that no interviews took place until a medico legal report from SPIRASI was available. On 4th June, 2008, ORAC replied to the request from the RLS stating that no undertaken could be given to delay the process and the applicant was duly interviewed on 18th June, 2008, and a report was furnished recommending that the applicant should not be declared a refugee which was notified to the applicant. 9. On 5th August, 2008, the RLS lodged an appeal with the Refugee Appeals Tribunal (RAT) and the RLS submitted a medico legal report in support of the applicant's application and furnished further documentation. 10. On 2nd April, 2009, an oral hearing was heard in respect of the applicant's appeal and the RAT recommended that the ORAC recommendation be affirmed and the applicant should not be declared a refugee. This decision was notified to the applicant on 31st March, 2010. 11. On 14th May, 2010, the Minister refused the applicant's application for refugee status which was notified on 17th May, 2010, the applicant was duly informed that the first named respondent proposed to make a deportation order. 12. On 4th June, 2010, the applicant's solicitors, the RLS, submitted an application for subsidiary protection pursuant to the 2006 Regulations and an application for permission to remain under s. 3 of the Immigration Act 1999. 13. It is in respect of the refusal of these applications that the within proceedings were initiated. 14. The applicant in these proceedings relies on a total of sixteen grounds. A number of these grounds have been decided previously against the applicant in a number of cases. 15. Mr. Paul O'Shea of counsel is to be commended that he accepted the indication of this Court in Jayeola v. Minister for Justice and Equality [2011] 656 J.R. (3rd February, 2012) in which case I indicated that the appropriate procedure in such matters was to formally raise these points that had previously been decided, should they be required in any further hearing of the matter and then to proceed to argue the substantive grounds of the case. 16. In this regard, Mr. O'Shea formally submitted, inter alia, that Article 4.1 of the Qualification Directive had not been properly transposed into domestic law by means of S.I. No. 518 of 2006 by any other means as the Article stated:-
18. Secondly, the applicant formally also submitted that there was a lack of effective remedy in Irish law by means, inter alia, of the inability of the applicant to produce new material and further, there was a breach of the principle of equivalence as it was alleged that there was no mechanism whereby an applicant could appeal from their refusal of subsidiary protection. 19. These points have also been decided against the applicant in a large number of cases e.g. Efe v. Minister for Justice, Equality and Law Reform (2) [2011] IEHC 214, P.I & E.I. v. Minister for Justice, Equality and Law Reform (Unreported, High Court, Hogan J. 11th January, 2011); ISOF v. MJELR (No.2) [2010] IEHC 455, Cooke J. and indeed by myself in Jayeola (above), these points also are in the view of the court unsustainable and I will refuse leave on those grounds. Substantive Grounds 21. Where subsidiary protection applicants put forward the same set of facts, the Minister is entitled to and must have regard to the asylum decisions and in particular the credibility decisions during the process and he is not obliged to reopen or reinvestigate the asylum decision- see N.F. v. Minister for Justice, Equality and Law Reform (Unreported, High Court, Charleton J.) 22. In Obuseh v. Minister for Justice, Equality and Law Reform [2010] 1 IEHC 93, Clark J. stated:-
If therefore the applicant has been rejected on credibility grounds for refugee status and he wishes to obtain subsidiary protection, he faces the unenviable task of establishing substantial grounds for believing that he will face a risk of serious harm from the death penalty or execution or torture or inhuman or degrading treatment on his return to his country of origin within the meaning of Article 15(a) or (b) of the Qualification Directive." 24. There has been no challenge to the decisions of the ORAC or the RAT by way of judicial review and indeed in the application for subsidiary protection, there was no submission in the application that the decisions in relation to credibility or the country of origin decisions were arrived at on a legally erroneous basis. 25. Counsel on behalf of the applicant urges that the applicant was at the time was represented by the RLS who he alleges do not generally challenge decisions by way of judicial review possibly due to resources problems. Be that as it may, the RLS who have great experience in handling claims on behalf of persons seeking refugee status etc. did not in their application for subsidiary protection raise any objection to the basis upon which the earlier decisions had been arrived upon. 26. The applicant has referred me to the decision of Hogan J. in H.M v. MJELR [2011] IEHC 16 when he said:-
It would also, in the view of the court, lead to the inherently contradictory result that in a case where an asylum claim based on past persecution for a specific Convention reason (race, religion, political opinion etc.) has been rejected on grounds of lack of credibility as to the events or facts relied upon, a challenge to those findings made in an application for subsidiary protection would require the Minister to decide not whether the applicant was eligible for that protection but whether the applicant was a refugee. It is a precondition of the admissibility of an application for subsidiary protection that the applicant is not a refugee (see definition of 'person eligible for subsidiary protection' in Article 2 of the Qualifications Directive (2004/83/EC) and Regulation 2(1) of the 2006 Regulations."
Accordingly insofar as the determination is based on the rejection in paragraph 8 of the applicant's entitlement to the benefit of the doubt based upon the findings made in the s. 13 Report, no arguable case for the grant of leave based upon Ground O. of the amended statement of grounds is made out. The application for subsidiary protection did not allege that the s. 13 Report was in any sense mistaken or erroneous in its understanding of the factual basis of the claim made..."
31. Officious scrutiny, or indeed anxious scrutiny forms no part of Irish law as was reaffirmed in Meadows. It affords far too great retrospective power to judges who have not been tasked with the decision making in the first place. Whatever in theory might be said of it, such scrutiny invariably invades not the decision making process but the merits of the decision itself and this in the view of the court is ultimately a breach of the separation of powers. Proportionality is not a stand alone right but rather the method by which the court will examine the process when constitutional or ECtHR rights are engaged. 32. What was being stated by Hogan J. in H.M. is that if, for example, an applicant is from the DRC and the RAT deals with country of origin information from the Republic of Congo (Brazzaville) then the Minister is not entitled to utilise such erroneous country of origin information in his subsidiary protection decision or, as in H.M. (above) the fact that an applicant's credibility as a convert to Christianity had been rejected does not necessarily deal with the issue of how an Afghan religious judge would be likely to treat the applicant' apparent apostasy. The Subsidiary Protection Decision
(b) whether there is substantial grounds for believing that the applicant would face a real risk and serious and individual treat to his life by indiscriminate violence in situations of international or internal armed conflict in his country of origin; and (c) whether the applicant could avail of State protection against such threats. 35. In effect, the applicant is here making an argument based upon legitimate expectation. I do not see any merit in this argument. The applicant is not entitled to prevent the Minister for making his decision and has not demonstrated any information that he might have furnished had he been told the Minister was going to proceed to make his determination. 36. The decision maker in the subsidiary protection decision proceeded as he was entitled and indeed obliged to do to assess the application in accordance with Regulation 5 detailing the country of origin information and which analysed a number of reports on the DRC to answer the question whether there are substantial grounds in believing the applicant would face a real risk of torture or inhuman or degrading treatment in his country of origin. 37. The decision maker concluded:-
41. The subsidiary protection decision then goes on to address the issues to whether there are substantial grounds to believe that the applicant would face a real risk of serious and individual (my emphasis) threat to his life by reason of indiscriminate violence in situations of international or internal arm conflict in his country of origin. The decision maker examined some country of origin information indicating that "the security situation in the eastern region of the Democratic Republic of Congo remains a serious concern". The decision maker goes on to analyse further information which concludes:-
While it is accepted that the situations of violence may from time to time to exist in certain regions of the Democratic Republic of Congo, it is not accepted that this situation in the Democratic Republic of Congo itself amounts to a situation of international or internal armed conflict as defined in Common Article 3 of the 1949 Geneva Convention and the 1977 Additional Protocols I and II concerning armed conflicts of an international or non-international character. Therefore, it is not accepted that the applicant runs a real risk of serious and individual threat by reasons of indiscriminate violence in situations of armed conflict." 44. It should be pointed out that it is only at this stage of the decision (more than half way through it) that the decision maker for the first time refers to the credibility findings of ORAC and the RAT which he details further in his decision and which he says indicate that the applicant should not be given the benefit of the doubt. 45. The decision maker then states he has given cognizance to all the matters referred to in the application for subsidiary protection including all documents submitted by the applicant on his behalf as part of his application for asylum. Counsel criticised this as being a formulaic paragraph. However, in the absence of any indication that this paragraph is untrue (and there is no such indication) then the court must accept that the decision maker did indeed do as he stated. 46. The decision maker then goes on to analyse the personal circumstances of the applicant and repeats the conclusions in relation to credibility of the Tribunal Member. 47. The Tribunal Member summarised a significant number of ways in which he felt the applicant lacked credibility and went on to state:-
The cumulative effect of the foregoing observations in relation to the applicant's credibility materially and detrimentally effect the veracity of what he purports to state and the substantive trust of his claim. Having considered para. 204 of the UNHCR Handbook in relation to the applicant's general credibility, I cannot afford the applicant the benefit of the doubt. He has contrived a story for the Tribunal, which I reject, and his failure to tell the truth during his appeal has been exposed in cross examination. In assessing the credibility of the applicant, I have had the opportunity of hearing and observing the manner in which the evidence was given and his demeanour. I found his (sic) to be evasive and contradictory in his evidence as to its contents and presentation and I found his story to be inconsistent, contradictory, implausible and wholly lacking credibility. I found the applicant to be deliberately evasive and vague." 49. The delay indeed was substantial and indeed inordinate and Mr. O'Shea referred me to the decision of Charleton J. in Blogun v. Refugee Appeals Tribunal (Unreported, High Court, 29th January, 2008) [2005] 1301 J.R., which granted leave for judicial review on the grounds of delay between the hearing and the decision. It was emphasised by counsel for the respondent that, in the instant case, the credibility decisions by the Tribunal were not based upon demeanour. It is the view of the Court that even where decisions are based on demeanour, a decision maker acting fairly who intends or is minded to make an adverse decision based upon demeanour will invariably have taken notes and his decision will not and must not arise out of a process that tends to recall demeanour after an extensive lapse of time. 50. This having been said, however, in the instant case the credibility decisions of the Tribunal were not primarily based upon demeanour (though demeanour was a part) but were based upon a rational analysis of various inconsistencies in the evidence of the applicant before the RAT. 51. Furthermore, as has been indicated there has been no challenge to the decision of the RAT and there was no suggestion in the subsidiary application decision that the RAT erred at law. Had the RAT decision been challenged on the basis of the inordinate delay, a court would have had the benefit of an affidavit of the Tribunal Member to explain why his decision was delayed and the court could have assessed that issue including on the issue of proportionality. In this case, however, the same solicitor who witnessed the applicant's alleged inconsistencies as they were found raised no objection to any of the findings of the RAT on the basis that they were irrational, unreasonable or lacking in proportionality. The decision the applicant now seeks to attack is the Minister's decision and he cannot in these proceedings collaterally attack the decision of the RAT which was unchallenged on this basis either by way of judicial review or submission. 52. From the foregoing, I am not of the view that the applicant has shown any arguable grounds for the contention that the delay (regrettable and inordinate though it was) between the hearing by the RAT and its decision render the Minister's reliance upon it when no challenge had been made to it, irrational or unreasonable. The Medical Challenge 54. The RAT member had indicated that he had read the report submitted by Dr. Sabrina Vessia of SPIRASl. SPIRASI are highly respected doctors who had an expertise in reporting and examining, inter alia, asylum seekers to ascertain their injuries and if possible to indicate the cause therefore. 55. The decision maker indicated that he did not accept the conclusions of the SPIRASI reports as being corroborating the applicant's evidence. The decision maker stated that he came to that conclusion "for the reasons set out at A and B above". 56. In point of fact, paras. "A. and B. above" do not come to any conclusions and I accept that the probability is that the decision maker meant that he came his conclusions based on the credibility reasons set out at A. to F. above. In any event, the error in relation to "A. and B." is a small one and is not material. 57. The applicant's main challenge to the medical evidence and its treatment by the decision is that no proper consideration was given to the medical report in the context of his s. 3 and subsidiary protection applications. 58. The RAT examined the SPIRASI report and did not accept the report as corroborating the applicant's evidence. It did so following the reasoning of the Court of Appeal in S. v. Secretary of State for the Home Department [2007] Imm AR 1 which adopted the reasoning of the Tribunal presided over by Ouseley J. in H.E. (DRC CG) [2004] UK IAT 00321:-
60. In this regard, the decision of Hogan J. in H.M. (above) may indeed be relevant. If the decision maker's use of medical evidence did not flow from the facts or was defective in reasoning then the fact that the decision maker relied upon the same conclusion as the RAT will not save his decision from being struck down in this Court. What this Court will not do is to go behind the decisions of the decision maker in accepting the RAT's findings in relation to credibility. If the RAT was legally wrong in relation to its use of the medical evidence and if the Minister was similarly wrong then the Minister's decision can be and should be open to judicial review. It is in this sense that the court holds that there is no essential contradiction between the decision of Hogan J. in H.M. (above) and the decision of Cooke J. in Dbisi (above). 61. Counsel for the applicant relies upon the decision of the ECtHR in R.C. v. Sweden (41827/07) (9th March, 2010). This case stated:-
64. The court went on to state that it was evident from the information available on Iran that the authorities frequently detain and ill-treat persons who participate in peaceful demonstrations in the country. In R.C., the injuries found by the expert commissioned by the ECtHR included scars observed on his body which had the appearance and localisation which corresponded well with his statements of how they had marks on his ankle could have appeared as a consequence of having been suspended upside-down by his ankles as suggested and pigmentation on his neck corresponded well with a burn injury. 65. In that case, the expert noted that alternative causes for the origins of the scars could not be completely excluded but that experience showed that self-inflicted injuries, in injuries resulting of an accident normally had different distribution to those shown by the applicant and the findings in the R.C. case, favoured the conclusion that the injuries had been inflicted on the applicant completely or to a large extent by other persons in the manner claimed by him. Thus, "the findings strongly indicated that the applicant had been tortured". 66. In the instant case, there is much to differentiate the situation from that found by the ECtHR in R.C. (above). In the first instance, the applicant's credibility has not been found by any decision maker to be in anyway credible. In the second instance, the expert obtained in support of the applicant, in effect, an expert in injuries that may have been inflicted by torture unlike the general practitioner in the R.C. case and it is not the view of the court that any further expert was required. 67. Of most importance, however, the nature of the injuries and the conclusion of the medical expert in this case differentiates it from the R.C. case. In particular, the scars left by burns in the R.C. case are not replicated. The expert apparently discovered scarring consistent with the applicant's evidence that he had been stabbed with a knife but here the similarities ended. 68. In the case of Mibanga v. Secretary State for Home Development [2005] EWCA Civ 367, the Court of Appeal quashed a decision by the adjudicator who had disregarded two expert reports in concluding that the appellant's case had lacked credibility and in that case, the injuries described were extraordinary in their severity and their nature being of massive scars of different kinds all over Mr. Mibanga's body which were described in detail consistent with beatings with a belt, bites of leeches and the application of electrodes to the applicant's genitals. 69. It is the view of this Court that the reasoning of the Court of Appeal in Mibanga was similar to that of the ECtHR in R.C. v. Sweden. In both cases, there was a finding of a defective reasoning by the decision maker in relation to credibility and ignoring of powerful medical reports which overwhelmingly supported what the applicant had said. In both the R.C. and the Mibanga cases the scarring and physical marks found on the applicant were highly unusual and related to specific details of the torture claimed by the applicant (scalding burns in one case and marks including bites of leeches in Mibanga). 70. The case of Mibanga was discussed in S. v. Secretary of State for Home Department (above) which distinguished the facts in that case from Mibanga stating:-
72. There is nothing in this case that would suggest that the nature of the findings by the medical expert offered by the applicant did anything other than have the effect of not negating the applicant's claim. Secondly, the nature of the injuries sustained by the applicant in this case, as in the case of S. v. Secretary of State for Home Department were clearly different from the injuries in R.C. v. Sweden or in Mibanga. 73. For these reasons, the court does not accept that the applicant is entitled to leave for judicial review on the above grounds. The Deportation Decision 75. In the deportation decision, the decision maker again considered the medical report furnished by the applicant and specifically dealt with the provisions of s. 3(6) of the Immigration Act 1999 and s. 5 of the Refugee Act 1996, s. 4 of the Criminal Justice (U.N. Convention Against Torture) Act 2000 and Article 8 of the European Convention on Human Rights. The conclusion of the decision maker was that refoulement was not found to be an issue in the case and that no issue arose under s. 4 of the Act of 2000 and that no issue arose in relation to private and family rights under Article 8. 76. The court does not hold that any ground has been made whereby leave should be granted in relation to the deportation decision. Conclusion |
