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Cite as: [2002] IEHC 131

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THE HIGH COURT

(JUDICIAL REVIEW)

Record No. 818JR/2001

Between/

D. A.

Applicant

-and-

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Respondent

JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON THE 2ND DAY OF OCTOBER 2002

MR. JUSTICE SMYTH: The Applicant is a Nigerian national, a male person, whose stated date of birth is 20th November 1970. He is a single person, who is fluent in English and whose level of education is stated to be primary school leaving cert (his school years appear from his completion of Questionnaire to have been 1975-1981). He arrived in the State on 4th October 1999, and was given standard documentation which stressed the necessity of truthfulness in giving information, his disentitlement to leave the State while his asylum application was under consideration, and that 'credibility is a key factor in determining if a person should be recognised as a ¹refugee. At the date of his interview on 12^th ¹March 2001 almost a year and a half after his departure from his country of origin on 3rd October 1999), he indicated that he has a fiancee but that he did not know her whereabouts at the time of the interview. In completing the form of Questionnaire on 8th October 1999, he stated that while he had travelled by air to Ireland via Paris, that he did not claim asylum in any transit country:-

"Because we were in the airport in France and the man who brought me told me he was taking me to Canada."

It is clear from the interview notes that:-

a) He did not belong to any political party.

b) When asked: What is your religion? he replied, "I am a Christian, Catholic." It appears that on or about 20th September 1999 he was at a form of crusade organised by the church which he frequented, known as the Church of God Mission, and that he was there to preach to people, that he had studied the Bible since he was a child, but when asked: Who wrote the Gospels? he replied, "The disciples of God, Peter, John, Judas, ten disciples wrote the Gospels." (Interview notes p.12, Q.42)

c) The Applicant stated that he was abroad after a curfew hour of 9.00pm on the day in question when some form of annual festival was taking place and that an attack took place on his home within sight of which a gang or mob attempted to beset him (in the events he escaped into the bush). His pursuers were stated worshippers of the God of Iron. The Applicant said that he believed that King of Ido stated that they wanted to sacrifice him (ie, the Applicant) to the God of Iron. It would appear that the more usual offerings by which they sought to propitiate the god were eggs, chickens, fruits, dogs and goats. He had been preaching for some nine years without incident against false prophets and gods, but no mischief was visited upon him during the course of the nine years. When asked if he ever contacted the police in relation to the beating he had received on that occasion, he replied that "there was no time for me to contact the police. Nigerian police are very corrupt, but if I met the wrong policeman they would take me back to the people who tried to beat me."

The question of the corruption of policemen has been considered by Stuart-Smith LJ in the Court of Appeal in the Horvath case [2000] INRL 15, 26, and was noted with approval by the House of Lords in considering the Horvath case, and his dictum is to the following effect:-

"Moreover, the existence of some policemen who are corrupt ... does not mean that the State is unwilling to afford protection. It will require cogent evidence that the State which is able to afford protection is unwilling to do so, especially in the case of a democracy."

The incident was singular and after it the Applicant, who was hospitalised for abrasions subsequent to the incident, spent a fortnight or thereabouts in Lagos, to which he had moved.

d) When asked if he had ever left the State since he came to Ireland, he replied with an unequivocal "no'; he furthermore specifically denied ever having been to Great Britain since October 1999 (p.4/5, Q.20 and Q.21). It was only when the interviewer stated that he, the interviewer, had an Immigration Officer's report, dated 19th May 2000, that showed that matters were contrary to what the Applicant had stated, he then told the truth — he had been abroad to the United Kingdom.

Subsequent to the enquiries of the Refugee Applications Commissioner (hereinafter referred to as 'the Commissioner'), a decision was made that the application was manifestly unfounded under Section 12(4)(a), (c) and (k), and the applicant was so informed by a letter dated 8th June 2001. I am satisfied and find as a matter of fact and of law, and on a careful consideration of all the documents that led to the decision of the Commissioner and of the Refugee Appeals Tribunal (hereinafter referred to as 'the Tribunal'), neither of whose decisions are rightly challenged, that no basis is revealed that could ground on application for leave to apply for judicial review in respect of either.

In these proceedings, it is the decision of the Respondent Minister that is in issue. That was a decision conveyed to the Applicant in a letter dated 14th August 2001, and to the extent that it is necessary for present purposes, I quote it as follows:-

"I am directed by the Minister for Justice, Equality and Law Reform to refer to your application for a declaration as a refugee in accordance with Section 17 of the Refugee Act 1996 as amended by the Immigration Act 1999 and the Illegal Immigrants (Trafficking) Act 2000. The Refugee Applications Commissioner, following an investigation of your application under Section 11 of the Refugee Act 1996 (as amended), has recommended that you be refused a declaration as a refugee under Section 12 of the Refugee Act 1996 (as amended). The Refugee Appeals Tribunal has affirmed this recommendation, in accordance with Section 16(2)(c) of the Refugee Act, 1996 (as amended). The Minister, for reasons set out in the recommendation of the Refugee Appeals Tribunal which you have already received, has decided in accordance with Section 17(1)(b) of the Refugee Act 1996 (as amended), to refuse to give you a declaration as a refugee."

The reasons set out in the recommendation of the Tribunal (unchallenged as forming the basis of the unchallenged decision of the Tribunal) are that the Applicant's application was manifestly unfounded. In framing its decision, the Tribunal not only upheld the decision of the Commissioner on the grounds of Section 12(4)(a), (c) and (k), but also on the grounds of Section 12(4)(e). The letter went on to indicate the alternatives open to the Applicant, including his entitlement to apply by way of leave to remain on humanitarian grounds in the State under the provisions of Section 3(6) of the Immigration Act 1999 (hereinafter referred to as 'the Act of 1999'). Notwithstanding the fact that the Applicant had the benefit of legal advice and assistance as .from June 2001, when an appeal was made to the Tribunal, the option given to make representations under Section 3(6) does not appear to have been exercised, or if exercised, the documentation referable thereto has not been placed before the court.

It does appear, however, and is not in dispute, for the documents are exhibited, that the Respondent Minister made a Deportation Order on 14th November 2001, and the Applicant was notified thereof by letter dated 23rd November 2001. This letter required the Applicant to present himself to the Garda National Immigration Bureau on Friday, 30^th November 2001, to make arrangements for his deportation from the State which was to take place as between 30th November 2001 and 28th December 2001. The Deportation is not challenged in these proceedings, nor on the basis of the documentation before the court would there have been any reason or basis for challenging that decision. However, it seems clear that it is this latter correspondence that caused these proceedings to issue on 4^th December 2001.

The Applicant seeks an Order of Certiorari quashing the refusal of the Respondent Minister to make a declaration of refugee status in respect of the Applicant. The Applicant was refused a declaration by letter of 14th August 2001. These proceedings were therefore brought more than fourteen days after the Applicant was notified of the said decision of the Minister and the Applicant is therefore outside the time limit in which to challenge the same by way of judicial review, unless the court is satisfied there are good and substantial reasons for extending the said period pursuant to Section 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000. No reason has been advanced and no plea is made against the Commissioner. Even if there had been no time bar on the evidence before the court, leave would not have been granted in any event. The Applicant, as already noted, has not challenged the decision of the Commissioner of the Tribunal within time. Both the Commissioner and the Tribunal are independent in the discharge of their functions under the Act of 1996. It is not possible or indeed correct to attempt to make any form of declaratory order in respect of Section 12(2) of the Refugee Act 1996 and its compliance with the Constitution. The Applicant's entitlement to a declaration may be by way of plenary action but Ireland and the Attorney General must be as respondents to such action and, accordingly, no such relief will be granted. There is no sustainable ground to advance a case that the irrational declaration of refusal to grant refugee status was lacking in reason. Neither is there evidence to sustain the assertion that the undertaking to investigate events in the Applicant's country of origin was not honoured when it is quite clear from a consideration of the document that country of origin information was considered. The alleged delay in investigating the Applicant's case for refugee status was not inordinate and unjust. Whether a period is considered to be inordinate or not is a question of fact and degree and in the events that have happened the Applicant has had the benefit of being resident in this State and notwithstanding the requirements that he move not without the State, felt himself free to do so and has not been at any disadvantage and therefore no injustice has accrued to him as a result of any alleged delay. Furthermore, the Applicant did have legal representation in the preparation and presentation of any case that was required to go to the Tribunal. The fact that there was no oral hearing does not in any way mean that he was deprived of any natural or constitutional justice. It is sufficient merely to refer to the existence of the decision of the Supreme Court in Z -v- The Minister for Justice, Equality and Law Reform & Ors (unreported 1st March 2002) on the question of the alleged entitlement or the consequent result of deprivation of an oral hearing of an appeal.

I am satisfied that the entitlements of legal representation of the Applicant, when interviewed, had been made clear to him at the beginning of his sojourn in Ireland when his entitlements were fully set out in the documentation presented to him and there was no question of a necessity for an interpreter because (a) it was indicated that he did not require one, and (b) he indicated in his Questionnaire that he was fluent in English.

No reasonable cause has been indicated as to why the Applicant felt he was entitled to proceed to what was in the statement grounding the application for judicial review entitled to a "two-day holiday in London". He was not refused or denied asylum on that ground alone. The untruths he told and the express inhibition to moving about freely as if he were a citizen of the State was clearly intimated to the Applicant on arrival in this country. Applicants who arrive in this country seeking refugee status are claimants. They are not entitled to all the rights of a citizen to come and go without inhibition. It is presumptuous to think that they could or should.

The time period allowed for appeal against refusal for refugee status is neither unfair nor unjust. The time limit as between the decision of the Commissioner and the lodgment of appeal did not cause any problems for the Applicant, who applied in time to take the course he did. Furthermore and insofar as the court is concerned, applications to court for leave have been the subject of a determination by the Supreme Court in The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360.

As far as the remaining grounds of appeal set out in the statement grounding the application for judicial review are concerned (and many are unverified in the affidavit), they are unsustainable. In my judgment, the decision makers had before them sufficient information and evidence upon which to come to the decisions upon which they did and they were not unreasonable, nor were the decisions made ultra vires the parties who made them.

Notwithstanding the point is not made in the statement of Grounds to apply for judicial review, the question of proportionality was raised in the course of the argument as one that was applicable and not addressed by the decision makers, particularly regarding the stated "two-day holiday in London". The position of proportionality has been considered in the Irish Courts in Healy -v- Ireland [1994] 2 IR 593, by Costello J, and again in Cox -v- Ireland [1992] 2 IR 503. These were referred to specifically in the unreported judgment of the High Court in Osayande and Lobe -v- The Minister for Justice/ Equality and Law Reform (8^th April 2002).

The matters more recently considered by the Court of Appeal in England in R.V. Farrakhan -v- Secretary of State for the Home Department [2002] 3 WLR 481, at 503, per Phillips MR in terms following:-

"When applying a test of proportionality, the margin of appreciation or discretion accorded to the decision maker is all important, for it is only by recognising the margin of discretion that the court avoids substituting its own decision for that of the decision maker."

Albeit this determination was made in the course of considering an application of an immigrant against the background of Article 16 of the Convention for the Protection of Human Rights and Fundamental Freedoms, it is nonetheless apposite in the instant case refuse leave to apply for judicial review in this case not on the grounds of the time, because even had the application been taken in time it seems that in my judgement does not warrant leave to apply.