The High Court has granted W. A. [DRC] leave to seek judicial review of the refusal of his subsidiary protection application and a related deportation order. The ruling does not decide whether either decision was unlawful; it permits a challenge on three specified grounds.
The applicant, a national of the Democratic Republic of Congo who arrived in Ireland in November 2009, claimed asylum. The Refugee Applications Commissioner recommended refusal, citing credibility concerns, and the Refugee Appeals Tribunal affirmed that recommendation on 30 June 2010. The applicant said he had been involved with the MLC and a 2007 demonstration, then arrested, detained and tortured for nearly two years before escaping. The Tribunal found that account lacked credibility.
The Minister refused subsidiary protection on 1 April 2011, and a deportation order followed on 15 July 2011. The applicant sought leave to challenge both decisions. The court rejected or found insufficiently particularised several of his grounds, including arguments about the subsidiary protection procedure and the deportation decision. It also held that the deportation challenge had no independent substantial ground for leave, but said its validity depended on the prior definitive rejection of the protection application.
Two arguable issues concerned the subsidiary protection determination. First, the court questioned whether it had coherently assessed the applicant’s claim that he had previously suffered serious harm at the hands of Congolese state authorities. The determination referred to the alleged imprisonment and torture, but then reasoned that non-state actors could not be treated as actors of serious harm because state protection had not been shown to be unavailable. The court said the connection between that reasoning and the claim of harm by state agents was unclear. It noted that the issue might not ultimately invalidate the decision when considered as a whole; at this stage, the question was whether an arguable case existed.
Second, the court found an arguable case that the determination did not address a distinct claim that failed asylum seekers returned to the DRC faced a risk of detention, interrogation and torture. The applicant had supported that claim with country information, including newspaper reports about two deported asylum seekers. The court said the decision might contain an answer when read as a whole, but the specific claim did not appear to be directly addressed.
The court granted leave to seek certiorari concerning both the 1 April 2011 refusal and the 15 July 2011 deportation order, limited to those two protection-related grounds and the ground that the deportation order lacked a valid prior protection decision. It did not grant the further declaratory relief sought. The substantive legality of the decisions remains for later determination.