Judgment Title: M.A.B. -v- Refugee Applications Commissioner & ors
Neutral Citation:  IEHC 64
High Court Record Number: 2010 168 JR
Date of Delivery: 13/01/2014
Court: High Court
Composition of Court:
Judgment by: O'Malley J.
Status of Judgment: Approved
Neutral Citation:  IEHC 64
THE HIGH COURT
Record No. 2010/168JR
THE REFUGEE APPLICATIONS COMMISSIONER, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL.
Judgment of Ms. Justice Iseult O'Malley delivered the 13th January, 2014
2. The applicant contends for the right to seek judicial review, in preference to pursuing in first instance his right to appeal to the third named respondent, on the grounds that certain errors committed by the first named respondent were of so fundamental a nature as to deprive him of jurisdiction. In particular, he alleges that that respondent applied the wrong test by requiring the applicant to show that he, as an individual, would be a target for persecution; failed to make a finding on the key question as to whether the applicant was indeed a member of the Zaghawa tribe; erred in law in finding that "where an applicant's claim lacks credibility, the UNHCR [at paragraph 37 of the Handbook} advises us that it can be inferred that a well-founded fear of persecution has not been established by the applicant"; was unreasonable in finding that an attack on the applicant's village in which members of his family were killed was "due to the general unrest within Darfur" and therefore not relevant to the question of future risk of persecution and failed to address the question of "future risk".
3. The respondents plead that the correct test was applied; that a finding was in fact made that the applicant had not established membership of the tribe and that the respondent was entitled to make the findings he did on credibility. It is further contended that all of the applicant's complaints are in fact matters more appropriately dealt with in an appeal.
4. An issue was also raised in written submissions (although not pleaded as such in the Statement of Opposition) as to the required extension of time within which to seek leave in circumstances where the decision of the first named respondent was communicated to the applicant by letter dated the 14th January, 2010 but the Notice of Motion was not filed until the 17th February, 2010. The applicant and his solicitor have averred that the former contacted the latter on the 18th January, that it was not possible by reason of the workload of the solicitor's office to have a consultation until the 28th January and that an appeal to the third named respondent was lodged on the 4th February. On the Friday 12th February Counsel's opinion was obtained to the effect that there were grounds for review. The applicant's instructions were given on Monday the 15th and, pleadings having been drafted, the proceedings were filed on the 17th.
5. On behalf of the respondents Ms. Sinead McGrath BL submits that this situation may not come within the grounds set out in the Act but, rightly in my view, does not press the point. There does not appear to have been any delay attributable to the applicant personally and his solicitor is a practitioner of experience in these matters, who cannot be said to have delayed unduly in taking the appropriate steps.
7. It appears that the applicant sought asylum in Malta in June of2005 and was granted temporary humanitarian protection. The court has been told by counsel for the respondents that this is a discretionary status arising purely under domestic Maltese law. Documentation indicates that the latest extension of that status was to expire in May 2008. However, in 2007 the applicant travelled to the Netherlands and applied for asylum there. His application was refused and he was returned to Malta.
8. It further appears that the applicant came to Ireland from Malta in June, 2007, using a travel document issued to him by the Maltese authorities. An application for refugee status was not however made in this State until the 9th October, 2007. The applicant's explanation for the delay was that he was sick and needed medical treatment. He claimed to have been in Beaumont Hospital for the period in question but no medical evidence was submitted by him to either the respondents or to the court. It is noted that, accordinto the respondents, the applicant was questioned by a Garda on the 8th October, 2007 and told to report to the Garda National Immigration Bureau on the 12th of that month. The applicant denies this and said that he went to the Office of the Refugee Applications Commissioner before the encounter with the Garda.
9. The applicant was interviewed on two dates in 2008 and received a negative decision, which was subsequently set aside by consent in the High Court. The matter was remitted for further consideration.
10. The applicant was again interviewed on behalf of the first named respondent on the 28th April, 2009. He said that he had left Malta because he had been detained in a camp or prison for over a year.
11. Questioned about events in Sudan, the applicant described the attack on his village. He said that he and others from his family went to a refugee camp. He left this camp after 10 days because of the lack of security, although his family remained there. He went to another area for some months but left the country in May, 2005.
12. In this interview, as in the previous ones, the applicant was asked why he had claimed in his application to be married and have children. His explanation was that his married brother had died and that he was supposed to take responsibility for his children.
13. The report pursuant to s.13(1) of the Refugee Act, 1996 (as amended) notes the relevant Country of Origin information and accepts that the Zaghawa tribe was among the groups targeted by Sudanese government militia forces. It also accepts that the applicant is from Sudan.
14. The authorised officer then sets out the applicant's claim as follows:
• He is a member of the Zaghawa tribe and he has lived in Garach, ten minutes from Zalingi in Darfur from birth until 2004. There was an attack on his village by the Janjaweed in March of that year, his father and brother were killed, the village was burned and the family fled the area and went to AI Hasahasa camp.
• He moved from the camp after 10 days, due to the lack of security there. He went to stay in Ambrow for a few months, however due to the daily attacks by the Janjaweed in the area, he made arrangements to leave Sudan in May 2005.
• He has no political affiliations and has no involvement in any group i.e. rebels which are in direct conflict with the Sudanese Government.
• He did not experience any personal discrimination or problems in Sudan. He did not sustain any physical torture in Darfur but he was affected by the death of his father according to his F 1 interview.
• Although he was given temporary humanitarian protection in Malta, he was kept in prison, he became sick there and he is looking for a cure for his ailment.
• According to the applicant's s.8 interview in Malta he was detained without a solicitor, given no provisions and was unable to pursue his studies."
2. The applicant had given contradictory accounts of aspects of his personal history such as his marital status. He had failed to explain these discrepancies satisfactorily.
3. No medical evidence had been submitted regarding his claim to have been admitted to Beaumont despite the fact that the applicant had been given an opportunity to do so.
4. The officer did not accept that illness had prevented the applicant from claiming asylum earlier. She considered that he had only made the application when his presence in the country had been detected by the Gardaí. She therefore considered that s. 11B(d) of the Act was applicable. She also stated that it was not unreasonable to infer that the applicant's real reason for coming to Ireland was to seek work or to avail of medical treatment, since he already had protection in Malta.
5. In a statement relied upon heavily in this application the writer said:
"The applicant has not provided any convincing reason as to why he, as an individual, would be a target for persecution by anyone in Sudan if he were to return there now. The alleged attack on his village appears to be due to the general unrest within Darfur. "
20. The decision of the first name respondent was made on the 11th December, 2009.
Submissions on the appropriateness of judicial review
22. It is further accepted that the application for asylum may not have been made until after the applicant was arrested; that no medical evidence had been submitted and that contradictory accounts had been given as to whether or not the applicant had a wife and children.
23. The debate in the hearing therefore concentrated on the issues listed in paragraph 2 above. The fundamental errors claimed to have been committed are that there was no finding as to whether or not the applicant was a member of the Zaghawa tribe (since if he is, that would, it is contended, rebut the presumption against him set out in s.11); the implied placing of an onus on the applicant to show that "he as an individual" would suffer persecution and the failure to consider the question of future risk.
24. On the assumption that the applicant succeeds in demonstrating that the first named respondent did err in the manner claimed, it is contended that the applicant is entitled to seek judicial review rather than pursuing his appeal. It is accepted that the courts have in a number of cases stressed that a grant of certiorari of a first instance decision, where there is a statutory right of appeal, should be the exception rather than the rule. It is noted that in the case of BNN v MJELR  1 IR 719, Hedigan J. said at p. 733
27. Counsel submits that this last observation is capable of being construed too narrowly, in circumstances where the appeal in this case would be a full de novo hearing, and urges the court to adopt the formulation set out in O(F) v RAC  IEHC 300. In that case Cooke J. held that the court should intervene
30. On behalf of the respondents Ms. McGrath referred to A.D. v MJELR  IEHC 77, also a decision of Cooke J. Having reviewed the authorities on the issue (including judgments dealing with non-asylum related issues such as State (Abenglen Properties Ltd) v Dublin Corporation  I.R. 381) he set out the following summary of the principles arising therefrom:
B. The fact that an appeal against the impugned decision or measure is available to an applicant is not of itself a bar to the issue of certiorari by the High Court.
C. The Court should not exercise its discretion to refuse certiorari to quash a bad decision if its continued existence may produce damaging legal effects.
D. For the High Court to intervene in a statutory two-stage procedure such as is involved in planning and asylum matters, it is not sufficient to point to an error within jurisdiction on the part of the decision-maker at first instance. Some extra flaw in the decision must be shown such as to indicate that the decision-maker has acted out of jurisdiction and in disregard of one of the principles of natural or constitutional justice.
E. The essential question is whether the available remedy by appeal is the more appropriate remedy.
F. A variety of factors fall to be considered in assessing the appropriateness of the remedies including: the nature and scope of the appeal and the stage in the statutory scheme at which it arises; whether it [includes] an oral hearing; the type of error sought to be challenged in the decision and whether it can be remedied on appeal.
G. The fact that the appeal does not provide for an oral hearing, while relevant, is not itself a ground for granting relief. An oral hearing is not always an essential ingredient of a fair appeal.
34. Counsel argues that the issues raised in these proceedings are identical to those included in the notice of appeal against the decision of the first named respondent and that none of them are more appropriate to judicial review than to the appeal.
The issue of tribal membership
38. That case concerned an applicant who claimed to be a practising Buddhist in Malaysia and at risk of persecution from the majority Islamic community there. For a number of reasons the Refugee Appeals Commissioner determined that he was seriously lacking in credibility and that he had made out no well-founded fear of persecution. The main argument made on his behalf in the judicial review proceedings was that the Commissioner had failed to make any determination as to whether he was in fact a practising Buddhist and accordingly his "core" claim had not been considered.
39. At paragraph 8 of the judgment Cooke J. said
The fallacy that lies behind this ground is the proposition that, if it is accepted that an asylum seeker is a member of a particular minority group, the claim will be well-founded if country of origin information demonstrates that such persons are likely to be threatened or attacked by some other group in the country of origin. "
The "individual persecution" issue and future risk
43. The applicant argues that the first named respondent erred in imposing upon the applicant the burden of showing that he "as an individual" would be a target for persecution.
44. The respondents do not contend that such a test would be correct and there is therefore no need to set out the authorities on this area. They do maintain that the applicant is misreading the decision. It is said that the Commissioner was making a factual finding, not a legal one, which the applicant is now attempting to portray as a legal error. The finding was made in a context where the applicant had given evidence that his village was attacked by the Janjaweed. He and remaining members of his family went to a refugee camp where there was general, ongoing insecurity. He did not claim to have been a member of any rebel group or to have any political affiliation. In the circumstances the authorised officer was simply noting that there was no reason to suppose that he as an individual would be a target, and that the alleged attack on his village appeared to be due to the general unrest in Darfur. Reference is made to paragraph 164 of the UNHCR Handbook, which states that
46. Counsel for the respondents says that this submission fails to recognise the impact of the overall decision as regards his personal credibility. In any event the finding must be read in the context of the finding that the applicant did not himself belong to any group in direct conflict with the Sudanese government.
Discussion and conclusions
48. The first is the failure to state whether or not it was accepted that the applicant was a member of the Zaghawa tribe. This was indeed a core part of the applicant's claim- if it was not believed, then it would appear that he had no case at all. If it was believed, that did not necessarily determine the issue of his status but it would provide a significant substratum of accepted fact.
49. The original reading of the respondents' legal representatives seems to me to have been that the report embodied a negative finding on this issue - hence the points made in the Statement of Opposition and the written submissions. However, I consider that the stance taken at the hearing was different and arose, presumably, on the basis of instructions to the effect that no such finding had been intended. The respondents now rely instead upon the decision in HPO and say that the applicant can proceed with his appeal on the basis that no adverse finding was made against him on this issue.
50. I do not consider that this would constitute a satisfactory resolution in this case. HPO involved a case where the appeal was on paper only and it was open to the applicant to argue, and indeed to the Court to find, that his claim as to his religion must be taken to have been accepted, there being no explicit rejection of it. In the instant case, there has been no formal concession as to the question by the respondents, simply a statement that there has as yet been no negative answer to it. The appeal would be a full oral hearing before the Refugee Appeal Tribunal, which is independent of the other respondents. In such a hearing the Tribunal would not be bound by the Commissioner's findings in any respect and would be free to conduct a fresh assessment. That means that the question would be determined for the first time at the appeal - in other words, that there would not in the true sense be a rehearing on an issue that is central to the applicant's claim.
51. I also consider that the first named respondent fell into fundamental error in applying the wrong test. In my view, the phrasing of the sentence
52. It seems likely to me that the combination of these two errors explains the lack of any forward-looking assessment of future risk, since on the Commissioner's analysis that exercise would not have been relevant.