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Cite as: [2001] IEHC 194

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Moxamed v. Minister for Justice, Equality and Law Reform [2001] IEHC 194 (21st December, 2001)

THE HIGH COURT

(JUDICIAL REVIEW)

602J.R./2000

BETWEEN/

AMINA KALI MOXAMED

APPLICANT

and

THE MINISTER FOR JUSTICE, EQUALITY AND

LAW REFORM, THE INTERIM REFUGEE APPEALS AUTHORITY,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Judgment of Mr. Justice T.C. Smyth delivered on the 21st day of December, 2001.

1. The Applicant is a single female person of Muslim religion whose date of birth is 4th October, 1972. She is of Somalia. She speaks and has a fluency in Bajun and English. On arrival in the State in April, 1997 (having travelled from Somalia by boat to Mombasa in Kenya and thence (after an interval of some four years) with the help of an agent, to Ireland via Amsterdam) she was given an information guide for Applicants for refugee status which drew her attention to the following:-

“As credibility is a key factor in determining if a person should be recognised as a refugee it is in the Applicant’s interest to . . . ” do a number of specified things.

2. And she also completed a form of ‘Application for Refugee Status in Ireland’ which ( inter alia ) stated:-

“Your application for refugee status will be considered on the basis of the information supplied in this form, during the subsequent interview and in any other submission you may make to us. It is important, therefore, that you answer all questions fully and truthfully.”

3. She set out her reason for seeking asylum in question 84 of the form of questionnaire which is a standard form used in these cases on 25th April, 1997.

4. Her application came to be dealt with under the Hope Hanlon procedure and of particular relevance in this case are paragraph 6 and thereafter. The Applicant was from the outset advised in the documentation of her entitlement to contact legal advice or assistance. In the event the Applicant did not avail of legal assistance and proceeded to an interview (at which an interpreter was present) on 21st September, 1998. Prior to the interview the Applicant signed a document entitled “Report of Interview with Applicant for Refugee Status” which ( inter alia ) states:-

“I understand that credibility will be a key factor in determining if I would be recognised as a refugee and it is therefore in my own interest to give truthful answers to all the questions asked of me at this interview.”

5. The assessment of the claim to refugee status was made by Mr. Patrick McKevitt, the interviewer. In making his assessment Mr. McKevitt considered a document dated 6th November, 1997, of Steven Wolfson, Senior Liaison Officer, U.N.R.C. in Ireland on the topic Somali/Bajui asylum seekers. Criticism of the interview and of consulting this document without notice to the Applicant and affording her an opportunity to comment thereon was ( inter alia ) advanced as an illustration of the want of constitutional justice or fair procedures. However, as was pointed out by counsel for the Respondents (paragraph 10) of the Hope Hanlon procedures specifically provides:-

“A person appointed by the Minister, will assess the case having regard to the interview, the report of the interview, to any written representations duly submitted and to such information as may be obtained from U.N.H.C.R. or other internationally reliable sources. Such person will make a recommendation as to whether refugee status should be granted.”

6. Mr. Henry Abbott, S.C., in a very cogent and fair presentation on behalf of the Applicant in response urged (adopting the dictum of May, L.J. in Gaima - v - Secretary of State for the Home Department , [1989] (Imm. A.R. 205 at 209):-

“The court should ensure that the decision making process has been wholly fair throughout.”

(Emphasis added)

and that simply adhering to an arid legal formalistic approach was not adequate to meet the requirements of constitutional fairness. The argument was extended to embrace the point that several matters touching upon the credibility of the Applicant were referred to by Mr. McKevitt - that if he had misgivings about the credibility of the Applicant they should have been specifically focused on and put to the Applicant at the interview - the case of Ex p Frank Yemoh [1988] Imm. A.R. 595, was relied on by the Applicant. There “the Home Secretary appeared not to have adopted the Applicant’s account of physical ill treatment nor the account of how he left his country of origin. The court held that fairness in that instance required that the Applicant should have been given the opportunity of considering and seeking to refute these two points which led the Home Secretary to conclude that the Applicant was being untruthful.” (Harvey - Seeking Asylum in the U.K. (Problems and Prospects) (2000 Ed.) ). Attractive as all this authority may be, the process and procedure referable in the instant case is distinguishable.

7. When Mr. McKevitt’s assessment was completed the matter was passed to the attention of Mr. Sean McNamara, H.E.O., who by memorandum dated 1st July, 1999 recommended that the Applicant be refused refugee status. Eventually by letter dated 1st March, 2000 the Applicant was informed that it had been decided that her application for refugee status was unsuccessful and in the same letter she was advised of her right to appeal. She was specifically advised:-

“Upon receipt of notice of appeal a copy of all material on which the decision was based will be forwarded to you or any legal representative you request.”

8. The Applicant signalled her intention to appeal, engaged the services of the Refugee Legal Service, and with the benefit of such legal advice and assistance, lodged an appeal. By letter dated 19th May, 2000 and specifically asserted:-

“(2) That the Applicant does not lack credibility”

9. Here therefore was a position in which the Applicant had all the material generated by her application, had the legal representation both before and during the appeal to the appeals authority and credibility was clearly a central issue. The appeal was unsuccessful and the decision of 25th July, 2000 (being the recommendation of the Appeals Authority) was communicated by letter dated 17th October, 2000, addressed to the Applicant who issued and lodged the requisite papers to seek leave to apply for judicial review on 31st October, 2000.

10. In these proceedings the Applicant is clearly within time to challenge the decision of the Appeals Authority but out of time to challenge the decision at first instance set out in the letter of 1st March, 2000. I refuse to extend the time in respect of that decision as being:

(a) outside the time provided for under section 5 of the Illegal Immigrants (Trafficking) Act, 2000 and no good and sufficient reason has been adduced in evidence;

(b) outside the time provided for under O.84 of the Rules of the Superior Courts, and

(d) one that was used to base the appeal, which the Applicant elected to pursue rather than challenge it within time by way of judicial review.

11. Concerning the decision of the Appeals Authority it is clear that it passes the test in Camara -v- Minister for Justice, Equality and Law Reform and Others (Kelly J. Unreported, 26/7/2000) and is distinguishable from the decision of the Supreme Court in Stefan -v- Minister for Justice, Equality and Law Reform (Unreported, 13th November, 2001). The several detailed matters explained and elaborated upon in the Applicant’s own affidavit of 15th November, 2001 are matters that could and should have been set before the Appeals Authority when the legal advisor was available to the Applicant. It is not permissible for a court when exercising its judicial review function to seek to act as a court of appeal. I refer to the view expressed in the speech of Lord Templeman in R. -v- The Home Secretary, ex parte, Bungdaycay [1987], 1 A.C. 514 at 537:-

“In my opinion, where the result of a flawed decision may imperil life or liberty, a special responsibility lies in the court in the examination of the decision making process.”

but remind myself that even Lord Steyn in R (Daly) -v- Secretary of State for the Home Department [2001] 2 W.L.R. 166 at 1637, emphasised that judicial review cannot slip into a merits based review. The fact that the Applicant could have presented her case at any point differently to avoid the result that emerged before proceedings issued if it had been put to her directly that the credit was an issue is to:

(a) misconceive the investigative nature of the fact gathering process, and

(b) fail to appreciate that “an important matter in a plea for asylum is the credibility of it and of the person making it” per May, L.J. in Gaima -v- The Secretary of State for the Home Department [1989] Imm.A.R. 205.

12. The fact that the Appeals Authority may exercise a severe silence at the hearing does not mean that the hearing is fundamentally unfair. While conscious of the possible consequences of an unfavourable outcome of the asylum process I do not find in the evidence a failure to follow the principles and methods of establishing the facts upon which the Applicant relies in exhibit G of her affidavit of 15th November, 2001 viz. the U.N.C.R. - Handbook on Procedures and Criteria for Determining Refugee Status.

13. It has been possible to entertain the full case of the Applicant without the necessity of permitting the late amendment of grounds and thus not depart from the decision in Ní Eilí -v- Environmental Protection Agency and Others [1997] 2 ILRM 458. I am satisfied and find as a fact and as a matter of law that:-

1) The Applicant was not denied nor were the procedures followed and applied calculated to deny the Applicant an opportunity of fairly dealing with the objections or causes of concern as may have been relevant in view of either the original interviewer, the deciding officer, and/or the Appeals Authority nor was the Applicant denied the right to a fair and impartial assessment of her application.

2) There is no evidence to sustain the plea of institutional bias - the fact that the decision on appeal and at first instance are consistent in their outcome and in some particulars, is not necessarily remarkable. The facts do not sustain even an inferential case of a fixed policy.

3) The appeal process was independent and afforded the Applicant the opportunity of disabusing the first and second Respondent that the credibility issue could have been differently determined. There was evidence upon which the result could be based.

14. The application for leave was by consent treated as the application for judicial review. I dismiss the application.