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Cite as: [2002] IEHC 127

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THE HIGH COURT

(JUDICIAL REVIEW)

Record No. 780JR/2001

Between/

M. S. A.

Applicant

-and-

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

and THE REFUGEE APPEALS TRIBUNAL and THE REFUGEE APPLICATIONS COMMISSIONER

Respondents

JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON THURSDAY, THE 3RD DAY OF OCTOBER 2002

MR. JUSTICE SMYTH: The relief sought in these proceedings against the Refugee Applications Commissioner (hereinafter referred as 'the Commissioner¹) is as follows:-

1. A declaration that the decision of a civil servant dated 27th day of June 2001, to refuse the Applicant's claim to refugee status is null and void and of no legal effect. In the alternative, a declaration that the said decision was arrived at in breach of the provisions of either the Hope Hanlan Procedures or the Refugee Act 1996 (as amended) or both.

2. A declaration that the transitional arrangements applied to the processing of the Applicant's refugee status claim and/or appeal operated to deny the Applicant a proper determination of her refugee status claim, in breach of fair procedures and natural justice and in breach of her constitutional rights.

The identifiable grounds advanced in support of these claims are set out in the Statement of Grounds as follows (insofar as the Commissioner is concerned):-

"(v) Further, and/or in the alternative, the third-named Respondent did not investigate the Applicant's claim in accordance with the provisions of the Refugee Act 1996.

(vii) The transitional arrangements in relation to the processing of the Applicant's refugee status claims ... operated to deny the Applicant a proper determination of her refugee status claim, in breach of fair procedures and natural justice and in breach of her constitutional rights."

The factual position, so far as the case against the Commissioner is concerned, poses the following difficulties for the Applicant:-

1. The Commissioner's decision by way of recommendation was conveyed to the Applicant by letter dated 25th July 2001. The proceedings herein were not issued until 21st November 2001. No good and sufficient reason for extending the period of fourteen days (the time limit within which proceedings could and should have been brought), provided for in Section 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000, had been advanced to the court, nor is there any claim in the proceedings seeking an extension of time.

GK & Ors v- The Minister for Justice, Equality and Law Reform

"The complaint that the Applicants had no legal advice can only relate to the first decision to refuse refugee status. This decision may well have merged in the decision on appeal to the same effect."

In my opinion, the first instance decision is unchallenged in these proceedings.

3. Ms. Michelle Harrison is not simply a civil servant, she is specifically an authorized officer of the Commissioner, as provided for in Section 11(2) of the Refugee Act 1996 as amended (hereinafter referred to as 'the Act of 1996'). The consideration of a case begun under the Hope Hanlan Procedures and determination made under the Act of 1996 was, per the judgment of Murphy J in delivering the judgment of the Supreme Court in The Minister for Justice, Equality and Law Reform -v- U (unreported 28^th February 2002), in its application to the instant case, does not require from me any presumptuous gloss. The difference of function under Section 11(2) and Section 13(1) have already been considered in Ten -v- The Minister for Justice, Equality and Law Reform (unreported 31^st October 2001) and need not be reiterated in this judgment.

4. The transitional provisions of the 1996 Act and their effect have been determined in the U judgment previously referred and that is conclusive on that issue.

The reliefs sought against the Respondent Minister do not arise because when the decision on appeal was made on 17th October 2001 and notified to the Applicant by letter dated 5th November 2001, the Applicant very promptly issued these proceedings. It is not clear as to what date they were served upon the Respondent Minister, but the return date given in the Central Office of the High Court was 11th December 2001. Subsequent to the date of the issue of the proceedings on 5th November 2001, the Respondent Minister, by letter dated 22nd November 2001, notified the Applicant that refugee status was being refused. It would appear that this letter issued without knowledge or notice of the existence of the proceedings. When it was realised that proceedings had issued prior to the Ministerial decision and letter, a further letter was sent to the Applicant — before the return date — ie, on 6th December 2001, stating that the Minister's decision had been quashed. In my judgment, this course of conduct acknowledged the respect of one organ of state for another, and it was a proper course to adopt. The position, therefore, is that when the matter came before the court there was no inisterial decision to be challenged or impugned and, accordingly, it is unnecessary to consider any relief against the Minister in these proceedings.

The grounds advanced in the Statement of Grounds to apply for judicial review referable to the Refugee Appeals Tribunal (hereinafter referred to as 'the Tribunal') are to the effect that there was a failure in the following respects:-

(i) to follow the principles of fair procedures and natural justice in its conduct of the oral hearing of the appeal;

(ii) to observe the principles of audi alteram partem, or otherwise afford the Applicant a fair hearing, in its conduct of the oral hearing; and

(iii) to take into account all relevant matters and/or to take into account irrelevant matters in arriving at its recommendation.

The relief sought on the basis of such grounds is for a declaration that the recommendation of the Tribunal as expressed by its nominated member, dated 17th October 2001, is ultra vires and of no force and effect. Prior to the hearing of the appeal, the Tribunal had been provided with the following documentation:-

(a) initial application form

(b) questionnaire

(c) interview notes

(d) reports and recommendations under:-

(i) Section 11(2) and

(ii) Section 13(1) of the Act of 1996

(e) Notice of Appeal and documentation furnished therewith.

The duty of the Tribunal was not only to consider the foregoing but also to hear and consider all oral evidence and any other additional documentary evidence and submissions made at the hearing. The function of the Tribunal was to make a decision to affirm or set aside the recommendation of the Commissioner. Prior to submitting the Notice of Appeal, the Applicant, who had the benefit of legal advice and assistance, had copies of documents {a) to (d) inclusive, as above. It was clear, therefore, to the Applicant's legal advisors as to the concerns/weaknesses/questions to be addressed and answered existed in the mind of the Commissioner. It behooved the Applicant and her legal advisor, notwithstanding that the appeal was an independent investigative process, to be able to allay the concerns set out particularly in the reports and recommendations under Section 11 (2) and Section 13(1). It is clear from these documents that there were issues of credibility and that even allowing that the misfortunes and misadventures were accepted, the reasons for claiming asylum did not in the mind of the Commissioner fall under the Convention grounds. In the course of her affidavit in these proceedings, the Applicant avers to 'the case she intended to make at the Tribunal hearing', and this is set out in paragraphs 8-12 (inclusive) of her affidavit. It is clear that all this information was before the Tribunal and its substance is in fact recorded in the Tribunal recommendation. Placing the matters on affidavit in these proceedings cannot convert a judicial review hearing into a further appeal. It is for an Applicant to put the full facts and reasons before the Tribunal to persuade it that the claim for refugee status should be acknowledged and granted.

The Applicant's legal advisor, in paragraphs 5-8 (inclusive) of her affidavit, sets out a number of forms of complaint about the oral hearing, one of which made reference to 'the member conducting the hearing in a characteristically brief manner. There is no fault in a hearing being conducted in a businesslike manner, so however that justice must never be sacrificed for efficiency. A focussed, ordered hearing, devoid of irrelevancies and repetition, is more likely to serve justice and fairness than a rambling discursive hearing lacking in address to the issues that need to be considered and determined. It is averred that:-

"The Member showed only a semblance of attention and courtesy and conducted the hearing without thoroughly exploring the issues raised by the Applicant's history in any real depth. I say that the Member's inquisition of the Applicant's history was concluded by the member in less than one hour. Further, I say that the Applicant remarked that the hearing had been surprisingly brisk."

Altogether from the fact that the Applicant herself makes no criticism of the oral hearing or of its duration in particular, the fact that the appeal hearing lasted an hour is, per se, irrelevant. What is of importance is the quality of the hearing. Furthermore, as the deponent refers to "characteristic brevity", it raises the question as to what degree of preparation went into the appeal — what was the Applicant told to expect? It is of importance that not only must justice be done, but it must be seen to be done. Adjudicators, be they judges, arbitrators, appeals officers or the like, may on occasion to a subjective advisor appear to be inattentive, only in their decision to prove otherwise. Courtesy is mandated in all appeals to the Tribunal. While an appeal is in the nature of an inquiry, it is for the applicant/appellant to advance his/her claim for refugee status in the knowledge that whatever deficiencies were identified in the Section 11(2) or Section 13(1) reports were specifically explained or elaborated upon or otherwise addressed. It is not the duty of the Tribunal (unless it has specific concerns that arise on the appeal that require clarification) to probe or explore in detail the Applicant's history or account of events. The temptation on an applicant/ appellant to answer the Tribunal's queries (if raised) in the manner inferentially, if not expressly indicated in the affidavit, in a fashion that an appellant could believe to be to his/her advantage (whether truthful or not) would be almost irresistible. Nowhere in the Applicant's own affidavit is there any complaint of a failure to provide either adequate time or opportunity by way of questioning in respect of stated matters: nothing is averred to as having been omitted in the documents in respect of the stated matters — the

fact that two views at least were open on the evidence on the stated matters does not mean that there was an error in adjudication or that the Tribunal was obliged to sit for as long as the applicant's/appellant's legal advisor wants the hearing to last so that matters can be rehashed time and time again.
The advantages of a person such as the Tribunal has in observing the demeanour of a person are considerable (Hay -v- O'Grady [1992] ILRM 689).

However, in my judgment, the statement in the decision of the Tribunal ...

"Overall, I find the Applicant's evidence to be entirely without credibility and I am satisfied that she has fabricated it for the purposes of her asylum application."

is not a decision (as so expressed) that was reasonable on the evidence placed before the decision maker such has been placed before the court. There was evidence upon which the Tribunal could have come to the view that certain matters were implausible and that there was a lack of credibility such as could have led a Tribunal to a finding that the Applicant was not a refugee within the meaning of Section 2 of the Refugee Act 1996. However, there was no warrant for the determination that the evidence was fabricated in the manner expressed.

Accordingly, I grant leave to apply for judicial review for a declaration that the recommendation of the Tribunal dated 17th October 2001 is ultra vires and void and of no effect on the grounds that:-

1. there was a failure on the part of the Tribunal to ensure that justice was not only done but seen to be done; and

2. the finding of the Tribunal that the Applicant's evidence was in overall terms entirely without credibility and fabricated for the purpose of her asylum application. As an addendum to this judgment, I observe that it would be most advisable in any future hearings before this Member of the Tribunal in which the appellant is represented by the advisor to the Applicant in this case that such proceedings be fully recorded.