In AW v Minister for Justice (No.2) the applicant was a failed asylum seeker from Democratic Republic of Congo who challenged the Minister’s refusal to revoke a deportation order against her. The applicant claimed that she would be at risk of torture, inhuman and degrading treatment if she was deported to DRC and that her deportation was therefore in breach of the principle of non-refoulement. The applicant relied on country of origin information which supported the proposition that many or even all DRC returnees who are failed asylum seekers are detained for a short period on arrival.
The High Court noted that a deportation decision must comply with section 5 of the Refugee Act 1996 which prohibits refoulement. Humphreys J. commented in relation to refoulement that what article 33 of the Refugee Convention, article 3 of the Convention Against Torture and article 3 of the European Convention on Human Rights have in common is the setting, expressly or by implication, of a threshold for the severity of treatment likely to be visited upon the person returned. Putting section 5 of the 1996 Act in the context of these international instruments, Humphreys J. held that it was not the intention of the Oireachtas to provide that any detention however short, likely to be visited upon a deportee, would constitute a bar to return pursuant to the section. Humphreys J. noted that there was strong support in the country of origin information for the proposition that only certain categories of deportees to the DRC would be likely to have been subjected to treatment of the appropriate severity, for example, dissidents or convicted criminals. It was held that it was open to the Minister to hold that refoulement did not arise if this applicant did not personally come within those categories, and that even if a routine practice of relatively short detention of most or all deportees was in place, this practice did not reach the appropriate threshold of severity in order to engage s.5. Humphreys J. refused to grant a certificate of leave to appeal in AW v Minister for Justice and Law Reform (No.3)  IEHC 422.
Challenge to refusal to revoke deportation order dismissed.