The High Court has granted leave for a Congolese man to challenge the refusal of his subsidiary protection application and a deportation order, finding an arguable case that the Minister’s assessment of state protection in the Democratic Republic of Congo was irrational.
Mr Justice Kevin Cross delivered the judgment on 27 March 2012. The applicant, Sambu Samuel Lukombo, had sought judicial review of the subsidiary protection refusal and deportation order. The court’s decision was at the leave stage: it did not determine whether the Minister’s conclusions were ultimately irrational or whether the applicant qualified for protection.
The judgment says the applicant arrived in Ireland in October 2009 and applied for asylum. The Refugee Appeals Tribunal refused his asylum claim in May 2010. He later applied for subsidiary protection and leave to remain. The Minister refused subsidiary protection in May 2011 and made a deportation order in August 2011.
The applicant’s protection claim included an alleged risk of execution, torture or inhuman treatment, and a serious individual threat because of indiscriminate violence in armed conflict. He also cited HIV and Hepatitis B and argued that life-saving treatment was unavailable in the DRC.
The court rejected leave on several grounds. It refused the argument that the absence of an appeal from the Minister’s subsidiary protection decision meant judicial review was not an effective remedy. It also refused leave on the applicant’s medical-condition argument and would not allow him to add that ground out of time. The judgment says his medical condition had been considered in the separate decision on leave to remain. The court also said the applicant could not use this challenge to reopen credibility findings made by the Refugee Appeals Tribunal, which had not been challenged.
On the country information, the court considered the Minister’s assessments of risks of execution, ill-treatment and conflict in the Kinshasa region unimpeachable at the leave stage. But it found it arguable that the Minister’s conclusion on state protection did not rationally follow from the material considered. The judgment pointed to country reports describing corruption, abuses by security forces and impunity, alongside the Minister’s conclusion that a functioning police system and rule of law existed in Kinshasa.
The court said it was not deciding the ultimate rationality of that conclusion. It granted the relief sought in paragraphs 1, 2 and 15 of the notice of motion on the grounds set out in paragraph 8 of the applicant’s grounds. The judgment states that the deportation decision was also subject to relief. Costs were reserved for the hearing of the application.