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Cite as: [2001] IEHC 187

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I. (M.) v. Refugee Applications Commissioner [2001] IEHC 187 (1st December, 2001)

THE HIGH COURT

2001 No. 1141A

BETWEEN

M. I.

APPLICANT

AND

THE REFUGEE APPLICATIONS COMMISSIONER AND J. N. SITTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

JUDGMENT of Mr. Justice T. C. Smyth delivered 1st December, 2001

1. The Applicant was born in Karachi on 6th September, 1975 and came to Ireland through an agent, arriving on 20th August, 1999. He received a formal questionnaire, on which certain information is contained. The copy of it in exhibit RS2 is unsigned and no reply is made to queries 15-22, 38-56, 58-60 and in another form certain questions are unanswered 1-26, 28-56, 58-60, 62, 65, 70, 74, 77, 82 and 83. It appears therefrom, i.e. exhibit RS2 (Q67) that the Applicants journey went from Karachi - Peshawar, Afghanistan, Moscow to Ireland; he apparently stayed in “Afghanistan while travelling” (Q72). The Applicants response to question 84 is as follows:-

“I am seeking asylum because in Pakistan members of “MQM” (of which organisation the Applicant claimed to be a member ) are not allowed to continue with their political agenda. Arrests of MQM members were being carried out in large numbers. I too was arrested by police and was harassed a lot. They threatened me with serious consequences if I was not to leave MQM”.

2. The second or other questionnaire at question 84 refers to being in receipt of death threats. Subsequent to the Applicant signing the questionnaires, he attended at interview the record of which is dated 9th April, 2001, this is exhibited MI-1 and pages 4, 6, 16 & 17 contain pertinent information. (Lest there be any doubt in the matter the mere fact that I chose these pages as pertinent does not mean that the other pages are irrelevant or wanting in worth but they are the pages on which the arguments in Court centred about.) The reports (under what would now be considered Section 11 & 13 of the Refugee Act, 1996 as amended) were prepared and the application came to be considered under the Hope-Hanlon procedures. The Applicant was informed that his application was considered by the Refugee Appeals Commissioner (hereinafter referred to as “the Commissioner”) whose recommendation intended for forwarding to the Minister for Justice and Law Reform (hereinafter referred to as “the Minister”) was that the claim for refugee status was manifestly unfounded. No criticism was then made of the information in the documentation and the manner in which that information was considered by the Commissioner. The debate in Court centred around two matters (1) the credibility of the Applicant, (2) the question as to whether serious consequences - death threats - had been made against the Applicant. The argument advanced on behalf of the Applicant was that the mere fact that some matter was not referred to in the interview did not mean that the answers given in the questionnaire were incorrect. Furthermore, it is stated that the reports prepared subsequent to the questionnaire and interview distorted the information therein contained to such an extent as to not be a true reflection of the information supplied by the Applicant and further that the member of the Tribunal failed to read the interview notes or to appreciate the fact that the alleged distortion of the information in the reports had occurred as between the information given by the Applicant and the manner in which the recommendation was formulated which led to a decision or recommendation by the Commissioner that the Applicant’s case was manifestly unfounded. The expression “manifestly unfounded” is defined in Section 12(4) of the Refugee Act, 1996 as amended, it does not mean that because a Court could or may take a view that would differ from that of the Tribunal that the decision made by the Tribunal that the application was manifestly unfounded is incorrect. The Commissioner’s decision by way of recommendation was appealed (within time) to the Refugee Appeal Tribunal (hereinafter referred to as “the Tribunal”). It is of importance to note that the Applicant had the advice for this purpose of a solicitor Mr. John F. Carroll of the firm of Carroll & Kelly. The papers contained a letter from Mr. Carroll to the Tribunal dated 7th June, 2001 (post the receipt of the documents exhibited at exhibit B in Mr. Rowley’s Affidavit sworn on 27th November, 2001); he refers thrice to the question of an oral hearing in this way:-

A “I must object in the strongest possible terms to the way the department is carrying on this appeal procedure in that the Defendant has no opportunity to have an oral hearing and to be subject to cross-examination as is the norm in these cases.”

B “It would be fair, in the circumstances, and in the absence of an oral hearing to confer refugee status upon him. Any other course of action at this time in the absence of a proper oral hearing would I submit constitute refoulement under the 1951 convention.”

3. Exhibit RS3 includes a form of appeal signed by both the Applicant and the solicitor dated the 11th June, 2001. The form provides at paragraph 3 for grounds of appeal and indicates what is required by way of appeal from the Applicant and specifically seeks -

“All grounds of appeal on which you rely must be submitted ...”

4. The letter that preceded these two documents was a letter dated 1st June, 2001 to the Applicant to the Commissioner indicating that:-

“Your appeal will be considered on the documents only .”

5. In the light of the criticisms of the Interview and the distortions or inaccuracies stated to have been made by the Commissioner and the reports made for or by him which it appeared centred on creditability, the Applicant emphasised the information contained in page 17 of the interview notes where the queries were as follows:-

Q. “Were you stopped by immigration control?”

A. “Yes, the agent showed the two passports to the immigration officer. The agent only stayed with me till Peshawar, after that I travelled with another person. He was either Russian or Afghan. He spoke broken English. I don’t know where he is now. No one else travelled to Ireland with me.”

Q. “Why did you choose Ireland?”

A. “I followed the agent. I didn’t know where I was travelling to.”

6. It was contended for the Applicant that it was clear from this that the agent only travelled as far as Peshawar and there could be no possible confusion in the mind of the Commissioner that the inquiry touched on the immigration control in Ireland (i.e. at Shannon Airport). Altogether from the relevance of whether in fact any of the ports of call in a refugee case are of significance, it seems to me that the inquiry is directed as to whether in fact the immigration control in the country into which the refugee or asylum seeker is seeking to enter is the subject of the inquiry.

7. If there was an ambiguity in this regard, this ambiguity could and should have been as clear to the solicitor before any appeal was made to the Tribunal and the matter drawn to the attention of the Tribunal at the time the appeal was lodged with the Tribunal. The other main ground of criticism of the task undertaken by the Commissioner and by the Tribunal was that they failed to have regard to, or proper regard for, the replies made in the two questionnaire at question 84 which are as follows:-

A “I am seeking asylum as in Pakistan members of MQM are not allowed to continue with their political agenda. Arrests of MQM members were being carried out in large numbers. I too was arrested by police and was harassed a lot. They threatened me with serious consequences if I was not to leave MQM.”

B “I am seeking asylum because the members of MQM are getting a very harsh treatment in Pakistan. I had to remain in custody where I was subjected to mental and physical torture. Killing a member of MQM was routine for them and they are treated very badly in their hands. I had gone through all this and was given death threats if I did not leave the MQM.”

8. Pages 6 to 11 inclusive of the interview notes touch upon this topic. The member of the Tribunal who considered the matter, refers specifically to both the death threats and the serious consequences specifically in the context of replies to question 84. If the criticisms of the interview and the reports of the Commissioner in the papers before the Court and the submissions of Counsel were valid it seems incomprehensible that these points of controversy not addressed in the letter of appeal. Understanding the tone of protest in the letter of the solicitor of the 7th June, 2001 there is an inferential acceptance that the appeal will be on documents submitted only, the Applicant had at all relevant times the benefit of legal advice. The decision of the Supreme Court on the Illegal Immigrants (Trafficking) Bill, 1999 (2000 2 IR 360 at 395) states as follows:-

“.... It must be observed that a person seeking asylum or refugee status is the Applicant for that status. There is an administrative procedure in place to carry out and assist him or her in the processing of that application. He or she is not a passive participant in that process .... In availing of such procedures and in exercising any discretion in relying on such procedures the State is bound to act with due respect to the constitutional right of access to the Courts and the right to fair procedures of the person s concerned.....”

9. Furthermore by way of assistance in considering these matters the Handbook on Procedures and Criteria for determining Refugee Status as issued by the office of the United Nations High Commissioner for Refugees in Geneva in January, 1992 at page 47 states as follows:-

“Where the burden of proof in principle rests on the Applicant, the duty to ascertain and evaluate all the relevant facts is shared between the Applicant and the examiner.”

10. Two forms of relief are sought in this case, one is an extension of time within which to bring an application for leave to apply for Judicial Review and the other is an application seeking leave. They were heard conjointly and I am satisfied that the Applicant is for all practicable purposes entitled to an extension of time within which to appeal the decision of the Tribunal but is not entitled to any such extension of time referable to the decision or decisions or recommendations of the Commissioner and I so hold.

11. The Applicant made his election to proceed to appeal the decisions of the Commissioner to the Tribunal. If dissatisfied with the earlier decisions and having the benefit of legal advice at the time he could and should have challenged them if he considered them in any way improper or warranted challenge by way of Judicial Review. Notwithstanding the fact that a Court may be inclined to a view that would differ from the deciding body or authority in cases of this nature a Court must be ever mindful that it must not act as an appeal court but concern itself with a review of the decision in suit. I adopt the decision of Kelly J. in Sekou Camare v. The Minister for Justice, Equality and Law Reform, The Refugee Appeals Authority, Ireland and the Attorney General (Unreported 26th July, 2000) to the effect that:-

“I must apply the test set forth by the Supreme Court in the cases which I have already cited. If the Applicant here is to succeed it is necessary that he should establish to my satisfaction that the authority did not have any relevant material before him which could have support his decision. In my view the Applicant has failed to make out this case. The issue of the Applicants credibility was undoubtedly a relevant matter to be considered by the authority. There was material before him which could support and justify a decision that the Applicant’s claim was lacking in credibility.”

12. In the instant case Counsel on behalf of the Applicant stated that the credibility issue was of so great importance that the Applicant should have been afforded an oral hearing. If the true position in this regard was quite clear to the Applicant and to the Applicant’s solicitor before the Tribunal embarked upon any part of its decision making and it was imperative that any question or questions or credibility that required to be resolved were done so by clear challenging to any of the alleged distortions or explanations of ambiguity as existing in the papers up to that date. The words of Finnegan J. in Valeri Zgnat’ev v. The Minister for Justice, Equality and Law Reform (Unreported 29th March, 2001) seem opposite:-

“It does not make sense to say if he was aware that his application would be determined as manifestly and unfounded, he would have adduced more cogent evidence that that which he adduced on the basis that his application would be determined on the merits. I am not satisfied this is a substantial ground.”

13. In the instant case such emphasis on ambiguities or distortions of reportage as are alleged in the course of this hearing to have occurred in the documentation, in particular that of the Commissioner, were capable of being satisfactorily addressed in writing at the time of the appeal, but no attempt was made to do that. Finnegan J. further stated:-

“The functions of this Court are limited. It cannot interfere with the decision of an administrative decision making authority merely on the grounds that on the facts it would have reached a different conclusion; O’Keeffe v. An Bord Pleanála & Ors . [1993] 1 IR 39. For this Court to interfere the Applicant is required to show that the decision making authority had before it no relevant material that would support its decision. I am mindful of the limitations of a form of appeal that is limited to documentation only, the facts in this case were that the Applicant did at all times have benefit of legal advice. Civility of oral presentation may not have been available in the instant case but that does not necessarily mean that the denial of natural justice for a Tribunal to receive and rely upon written representation ( R. v. Amphlett )[1915] 2 KB 223, Local Government Board v. Arlidge [1915] A. C. 120, Selvaragan v. Race Relations Board [1976] 1 R E. R. 12. Whatever disadvantages the Applicant may have had at the early stage of the questionnaire and the interview, then Applicant did have legal advice at the point where the matter passed from the Commissioner to the Tribunal and political analysis that was assayed before the Court in this case was as open to be carried out at that stage as at the point of dealing with the matter in Court.”

14. I am mindful in making this decision of the decision of the Supreme Court in Steffen v. The Minister for Justice, Equality and Law Reform & Ors . (Unreported 13th November, 2001.) In my judgment this case is clearly distinguishable therefrom. I treated the application for leave as the application in the fullest sense as I had given counsel every opportunity to present the case in full to the Court. In the event the application neither good nor substantial grounds have been established by the Applicant, and if they could be said to exist were not substantiated.

15. I therefore refuse the application.