Neutral Citation:  IEHC 145
THE HIGH COURT
[2011 No. 62 J. R.]
P. D. O.
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE REFUGEE APPLICATIONS COMMISSIONER, IRELAND & THE ATTORNEY GENERAL
JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 6th day of March 2015
1. The parties have agreed that the court should determine a preliminary issue in these proceedings as to whether the applicant’s challenge to the decision of the Refugee Applications Commissioner has been rendered moot by the outcome of the applicant’s appeal of that decision to the Refugee Appeals Tribunal.
2. The respondent contended that the proceedings are moot in the light of the decision of the Supreme Court in M.A.R.A v. Refugee Applications Commissioner  IESC 71.
3. In M.A.R.A an infant applicant sought to challenge the decision of the Refugee Applications Commissioner who had rejected an asylum claim based on a fear of female circumcision if returned to Nigeria. Cooke J., on 19th December, 2011 acceded to a motion from the respondents to dismiss the infant applicant’s claim because the proper remedy was an appeal to the Refugee Appeals Tribunal.
4. Prior to the determination of the appeal to the Supreme Court, the infant applicant appealed the decision of the Refugee Applications Commissioner to the Refugee Appeals Tribunal and later, sought subsidiary protection. The appeal to the Refugee Appeals Tribunal was rejected as was the application for subsidiary protection. The date of the RAT decision is 30th April, 2012. Charleton J. examined the legal capacity of the Refugee Appeals Tribunal to address errors in the decision of the Refugee Applications Commissioner and said:-
7. The applicant seeks an order of certiorari quashing the decision of the Commissioner that the applicant not be declared a refugee. In addition an order of certiorari is sought quashing the decision that section 13(6)(c) of the Refugee Act, 1996 should be applied to any appeal to the Refugee Appeals Tribunal.
8. With respect to the substantive decision refusing a positive recommendation, the applicant pleads, inter alia, a breach by the decision maker of Irish and European Law governing asylum assessments; failure to enquire into conditions for homosexuals in Nigeria; failure to analyse the applicant’s claim for asylum; and failure to carry out a correct assessment with respect to the possibility of internal relocation. With respect to the challenge to the Commissioner’s decision pursuant to section 13(6)(c) of the Refugee Act it is said that no reason or rationale is provided for the decision to deny the applicant an oral hearing of his appeal.
9. That statutory provision in conjunction with s. 13(5) permits the Refugee Applications Commissioner to ordain a papers-only appeal where it is found that an asylum seeker failed to apply for asylum as soon as is reasonably possible without reasonable explanation and such a finding was made in respect of the applicant in this case.
10. These proceedings were instituted on the 25th January, 2011. On 18th January, 2011 the applicant lodged a notice of appeal against the recommendation of the Commissioner with the Refugee Appeals Tribunal. Accompanying the notice of appeal was a letter from the applicant’s solicitors which sought to lodge the appeal and in addition to request copies of previous decisions of the RAT. The letter says that:
12. The final paragraph of the letter says:-
Lastly, we would ask you to note that this Appeal is lodged without prejudice to an application for judicial review of the decision of the RAC that may be sought by our client.”
14. The notice of appeal was in general terms and stated:-
Prior to the appeal being listed for hearing the applicant requires production of records and reports of previous similar cases decided in the past by the Refugee Appeal Tribunal to enable her to obtain relevant legal advice (see covering letter).”
The Decision of the Refugee Appeals Tribunal:
17. The question for the court is whether these proceedings challenging the decision of the Refugee Applications Commissioner are moot because of the existence of the decision of the Refugee Appeals Tribunal.
18. As to mootness in general Charleton J., in M.A.R.A., said as follows:
20. In my view, all of the complaints sought to be raised in these proceedings relative to the substantive decision of the Commissioner refusing to recommend refugee status were capable of being addressed by the Refugee Appeals Tribunal. Nothing can be gained by challenging the decision of the Commissioner which cannot be achieved by appealing to the Refugee Appeals Tribunal. Once a decision on the appeal is issued, a challenge by way of judicial review to the substantive recommendation of the Refugee Applications Commissioner becomes moot. In accordance with the reasoning of Charleton J., the decision of ORAC on the substantive question as to whether the applicant might be declared a refugee no longer affects the rights of the applicant because the decision has been superseded by the decision of the RAT.
21. I accept that there is a significant factual difference between the quality of the appeal pursued by the applicant in M.A.R.A and the appeal which was lodged in the instant case. It is clear that there was full participation in the appellate process in M.A.R.A. As Charleton J. noted:-
23. In my opinion a person who appeals a decision of the Refugee Applications Commissioner to the Refugee Appeals Tribunal is not in a position to dictate the pace of the appeal. The Refugee Appeals Tribunal has a statutory duty to determine appeals. Indeed, section 16(18) of the Refugee Act 1996 expressly provides that a ‘papers only’ appeal against a recommendation of the Commissioner “shall be dealt with as soon as may be and, if necessary, before any other application for a declaration.” In my view the Tribunal should seek to determine such appeals efficiently and timeously and that is what the RAT did in this case. It is not possible to fault such action. Needless to say the absence from these proceedings of the RAT would make any such criticism legally unfair.
24. I conclude that the decision of the Refugee Appeals Tribunal has rendered moot such part of the applicant’s proceedings as relate to the challenge to the substantive decision of the Commissioner to refuse a recommendation of asylum status. The reason for this is that the decision of the RAT has replaced the decision of ORAC and granting the reliefs sought in respect of the substantive ORAC decision could not confer any right or benefit on the applicant. His legal status could not be affected in any way if the court granted the reliefs he seeks. The proceedings challenging the substance of the decision refusing refuge status is thus moot.
25. Different considerations apply to the decision of the Commissioner arising under section 13(6)(c) of the 1996 Act. Where a decision is taken that the applicant, without reasonable cause, failed to make an application [for asylum] as soon as is reasonably practicable after arrival in the State, then in accordance with section 13(5)(a) the notice informing an applicant of the right to appeal to the Tribunal states that such appeal will be determined without an oral hearing.
26. If an unlawful decision is taken by the Commissioner in this connection, it is incapable of being remedied by way of appeal to the Refugee Appeals Tribunal.
27. The authority for the proposition that no appeal lies to the Refugee Appeals Tribunal from a recommendation taken pursuant to section 13(6) of the Act is Moyosola v. Refugee Applications Commissioner  IEHC 218 where Clarke J. said:-
30. I cannot identify any mechanism whereby an applicant can avoid the time limits within which an appeal must be brought to the Refugee Appeals Tribunal. Instituting judicial review proceedings of the decision of the Refugee Applications Commissioner does not stop time running for the purposes of any appeal to the Refugee Appeals Tribunal. Therefore an applicant who seeks to challenge a decision of the Refugee Applications Commissioner pursuant to ss.13(5) and 13(6) as well as a negative decision on asylum must institute an appeal to the Refugee Appeals Tribunal within 10 days of the date of the letter notifying the applicant of the decision of ORAC and must institute judicial review proceedings of the ORAC decision within 14 days thereof.
31. An applicant who is dissatisfied with a section 13(5) finding by ORAC must therefore institute proceedings and appeal the decision. The applicant must inform the Refugee Appeals Tribunal that it is intended to seek judicial review of the decision of the Refugee Applications Commissioner and formally request that the appeal be stayed pending the outcome of the review of the decision of the Commissioner. The applicant must inform the Tribunal that in the event that it does not agree to stay the appeal, that the applicant will seek an injunction preventing the Tribunal from hearing the appeal until the determination of the judicial review of the Commissioner’s decision.
32. In this case, although the applicant informed the Refugee Appeals Tribunal of the possibility of a judicial review, the Tribunal was never in fact informed that proceedings had been instituted. The applicant never sought an injunction to prevent the Tribunal from determining the appeal.
33. In my opinion, the Tribunal did not act unlawfully in determining the appeal without reverting to the applicant. It is a relevant consideration to bear in mind that the applicant in this case did not subsequently challenge the decision of the Refugee Appeals Tribunal. No complaint has been raised with the Tribunal saying that the Tribunal ought to have delayed its decision until the result of the proceedings against ORAC was known. No reasonable explanation has been advanced by the applicant as to why the decision of the RAT was never challenged. In my view, the applicant was obliged to enjoin the RAT from processing the appeal and, failing this, was obliged to challenge the decision of the RAT in order to protect the integrity of the proceedings challenging the decision of ORAC.
What effect would an order quashing the s. 13(5) and (6) finding have if made now?
35. In the absence of any procedural step having been taken by the applicant with respect to the decision of the Refugee Appeals Tribunal, it stands as a valid recommendation made by the Tribunal pursuant to section 16 of the 1996 Act. The jurisdiction of the Refugee Appeals Tribunal to decide the appeal in this case has never been questioned and in my view the principle of legal certainty of administrative decisions (see decision of the CJEU Kuhne and Heitz N.V v Productschap und Pluimivee en Eieren, C-453/00, 13 January 2004) and the presumption of validity of public law decisions (see Lancefort v. An Bord Pleanala  IEHC 199) require that a decision of the Refugee Appeals Tribunal be protected from collateral attack mounted in proceedings in which the Tribunal is not a party. Further, s. 5 of the Illegal Immigrants (Trafficking) Act 2000 provides that the validity of decisions of the RAT maybe only be questioned in proceedings instituted in accordance with that Act and, as I have said, no such proceedings are extant and thus the decision of the RAT is inviolable. It is in this sense that I hold that the proceedings are moot because a decision of this court quashing the recommendation of the Commissioner made pursuant to s.13(6) could not effect the rights of the applicant at this stage. I reject the notion that setting aside the s.13(6) findings of ORAC affects the decision of the RAT. As indicated above, protective steps ought to have been taken as soon as these proceedings issued to request or demand that the Tribunal not determine the applicant’s appeal. The applicant instituted an appeal and took no steps to prevent that appeal from being determined.
36. Thus, in relation to the preliminary question raised, I find that these proceedings challenging the decision of the Refugee Applications Commissioner have become moot because of the determination of the applicant’s claim for asylum by the Refugee Appeals Tribunal in circumstances where no step was taken to prevent the RAT from determining the appeal and no step was taken challenging that decision subsequently.