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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A. (J.J.) v. Minister for Justice, Equality and Law Reform [2002] IEHC 180 (4 October 2002)
URL: http://www.bailii.org/ie/cases/IEHC/2002/180.html
Cite as: [2002] IEHC 180
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Record No. 696JR/2000
Between/
Applicant
Respondent
JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON FRIDAY, THE 4TH DAY OF OCTOBER 2002
MR. JUSTICE SMYTH:
The Applicant is a Nigerian national whose stated date of birth is 2nd June 1968. He, at the time of his arrival in the State, was a single male person who was recorded (on the AY1 form) as having departed from his country of origin in 1995, and arrived in the State on 12th October 1999. The route stated to have been taken to Ireland is Nigeria, Sierra Leone, Guinea, Russia and thence to Ireland. He is of Christian religion and his ethnic origin is Ogoni. He had primary education but spoke English fluently, had done military service and was a farmer by occupation. He had a brother in Ireland who had applied for refugee status and obtained same in 1997. He stated in his Questionnaire form, signed on 19th October 1999, that he had not seen his brother but by the date of his interview on 27th October 1999 he had an address for his brother in Dublin.
The Applicant, having left Nigeria in 1995, spent until mid 1997 working in Sierra Leone. He then went to Guinea and remained there until 1998. In the course of the asylum process, he disclosed that he was involved in demonstrations in 1994 in Nigeria, was detained in prison for a week and mistreated while there. He stated that in 1995 he was arrested "many times" when again he was mistreated. Each time he was arrested it would appear that it was because he was demonstrating. When asked at interview if it were possible to obtain a medical report of his injuries, at a cost
to himself or the Respondent, he said, on 27th October 1998, that it was being obtained by the Refugee Council (the attendance before Mr. O'Leary
1was on 29th October 1998). The Applicant went on to say at the interview that (although he was 27 years old at the time) he did not know when he was signing up to desist from demonstrations what he was signing up for.
The Applicant concluded his interview by stating that he was applying for asylum in the State because he would be in danger of being arrested or killed in Nigeria. He did say that he had been told by "the people who were bringing me to Ireland" that in his village (Ugholli, Ogoni, Port Harcourt, Nigeria) that there were still soldiers and police guarding the village. The Applicant had legal assistance in the completion of his Questionnaire and during his interview. It is clear from the documentation that MOSOP (Movement for the Survival of the Ogoni People) , of which the Applicant was a member, paid for his cost of travel, yet that organisation (in London) claim that they have never made nor were they involved in any arrangements whereby an agent without charge brought a person from Nigeria to a European country or to any part of the world. As to the time of making the first instance decision the only medical evidence available to the decision maker was a medical report dated 9th November 1998, which is expressly stated to be for the purpose of validating the Applicant's history of abuse in Nigeria
The conclusion arrived at in an assessment of the claim for refuge status in February 1999, by Mr. D.J. OfSullivan, was that the Applicant had problems in Nigeria 1994/95; that he did not have problems in Sierra Leone or Guinea (while he was in Guinea his brother was in Ireland); that MOSOP does not fund persons travelling to European countries; and that between 1995 and 1999 conditions changed in Nigeria; that the Applicant lacked credibility and that the criteria in the 1951 Convention, 1967 Protocol and Section 2 of the Refugee Act 1996 were not met. Mr. O1Sullivan's assessment was considered by a Ms. May Maguire of the Asylum Division of the Respondent Minister's Department and also in the light of additional country of origin information, and noted:-
"It is unlikely that if Mr. A. now returned to Nigeria that he would be arrested by the authorities."
She agreed with Mr. O1Sullivan's assessment and sent the matter forward to a Mr. Kevin Clarke, who, on 18th March 1999, agreed with the assessment and recommendation that the application be refused.
The Applicant was informed by letter dated 25th March 1999 of the decision at first instance and no proceedings were issued to challenge that decision within the time limit and the restraints of Order 84 of the Rules of the Superior Courts.
The Applicant, as was his right, appealed the first instance decision with the benefit of legal advice and the fact of the appeal and the manner in which it was to be conducted was made clear to the Applicant in a letter dated 14th May 1999. The appeal was by way of oral hearing on 19th September 2000, at which the Applicant was represented by counsel and solicitor. A contemporaneous note by the presenting officer, one Ms. Finnula McEvoy, notes (inter alia) that a "medical (psychological) report to be lodged this week — any obs to be made to Mr. Delap". As no such report had come in after three weeks, the Asylum Appeals Unit in the Respondent Minister's Department wrote to the Appeals Authority requesting it — in the person of Mr. Delap to proceed with a recommendation.
The grounding affidavit, sworn on 3rd November 2000 by the Applicant, avers in paragraph (6) thereof that:-
"... I adduced expert medical evidence from Dr. Niall O'Leary and Mr. David Devereaux, counselling psychiatrist."
The affidavit proceeds to criticise the Appeals Authority for (inter alia) failing to give weight to this evidence. The report of Dr. O'Leary was clearly available to the Appeals Tribunal and this is conceded as being available, as it was expressly referred to and commented upon by Mr. 0'Sullivan in his report, which was before the Tribunal and available to the Applicant. However, concerning the report of Dr. Devereaux, the affidavit sworn by Bridgeena Nolan on behalf of the Respondent on 27th June 2001, and filed on 4th July 2001, some five months before the hearing of this application in court, avers:-
"The second report from the Northern Area Health Board is dated September 18, the day before the matter came on for hearing. However, the stamp seems to indicate that it was received by the recipient on September 21, 2000, after the date of the hearing. This report was not forwarded to the Department and does not appear in the Applicant's
If this averment were incorrect, I consider it reasonable to think it would have been denied or put in issue in the five months prior to which I have referred.
The Appeals Authority made a decision by way of recommendation on 11th October 2000, and came to the view that the Applicant was not a refugee and had not a well-founded fear of persecution for the reasons set out in the 1951 Convention and the 1967 Protocol and that the appeal failed.
The Applicant was informed by letter dated 16th November 2000, from the Respondent, signed by Sheila Ryan, a Deciding Officer, that the recommendation of the Appeals Authority had been considered and the decision had been made to uphold the original decision and refuse the appeal. It was stated that as a result of the refusal to accord the Applicant a declaration of refugee status the Minister proposed to make a Deportation Order under Section 3 of the Illegal Immigrants Act 1999.
It is against this extensive factual background that these proceedings were instituted. Notwithstanding that the Appeals Authority is not a named Respondent (which I am prepared to ignore, so that the Applicant is not disadvantaged by any technical point), declaratory relief is sought against it on the basis that (a) it failed to consider the application adequately or fairly, and (b) that the decision was in breach of natural justice and fair procedures. As already adverted to, subsequent to the lodgment and long before the hearing of the appeal, the Applicant was clearly informed in a letter of 14th May 1999 as to how the appeal would be determined and that "cases will be considered in an informal manner; it is not akin to a court hearing. It is a non-adversarial hearing." "The sole function of the Appeals Authority is to review cases where Applicants have been refused recognition as refugees and to make a recommendation to the Minister, having reviewed the papers in the case and, where an oral hearing has been requested, having considered the Applicant's account of his or her experience." In short, it is an independent, investigative process which is the subject of an independent evaluation and adjudication. To apply the comparison (to the extent of the structuring of the code — in the general sense of that word) of the Planning Acts, the appeal is considered as if the application had been made to the Appeals Authority in the first instance. The Appeals Authority (now the Refugee Appeals Tribunal) is not bound by the first instance decision, but it must have regard to its existence and content — it must not slavishly follow it or ignore it. In asylum cases, the decision at first instance and on appeal are reviewable by the courts, but when being so considered each are to be taken separately but in the round.
I am satisfied and find as a fact and as a matter of law as follows:-
1. The Authority did not act contrary to the rule of Audi Alteram Partem.
2. The weight to be given to evidence was a matter for the Authority — the fact that some evidence may have been uncontested does not mean that it had to be accepted unconditionally, as unrelated to other evidence on other matters or devoid of critical appraisal. The question of credibility of evidence did arise and this is a matter for the Authority. In my judgment, "it could not be said that there were no grounds on which he could not have reasonably arrived at the decision that the application for refugee status" was not established, applying the decision of O -v- The Minister for Justice, Equality and Law Reform (unreported Supreme Court 6th June 2002).
3. The Authority did not apply a standard of proof (insofar as that expression is appropriate) to the Applicant's appeal which was either unfair or unreasonable. The Authority carefully noted the facts placed before it and considered both the oral and written evidence put before it. On that evidence, it had to consider not only the stated subjective fear alleged by the Applicant, but also to consider what basis that had in terms of evaluating the objective risk. The objective risk must be a realistic one and not a contingent or speculative: as considered in the Australian High Court by Kirby J in Minister for Immigration and Ethnic Affairs -v- Wu Shau Liang [1996] 185 CLR 253, cited with approval by Sedley LJ in Karanakaran -v- Secretary of State for the Home Department [2000] Imm AR 539. The decided cases reveal that the question as to whether there is a well-founded fear within Article 1(A) (2) of the Convention is not to be approached in a legalistic manner; it should be viewed unobscured by concepts such as standard of proof — the approach should be to ascertain if there is "a reasonable degree of likelihood" (per Lord Keith in Secretary of State for the Home Department -v- Sivakumaran [1988] 1 AC 950).
The criticisms directed to the letter of MOSOP would be more readily understood if the document was considered without reference to the Applicant and his advisers. The true position is that it was part of the documentation available to the Applicant on request (per letter dated 25th March 1999, referred to earlier in this judgment) long prior to the hearing of the appeal and in respect of which the Applicant was entitled to adduce such contradictory evidence it was considered appropriate. Furthermore, the Authority noted the changed situation in Nigeria between 1995 and 2000.
4. The evidence placed before the court on this application does not make out a possible claim that there was any breach of natural justice or fair procedures, nor that the Authority failed in any way to consider the Applicant's case or evidence or failed to give reasons therefor. In a postscript to the recent judgment of the Court of Appeal in England, in English -v- Emery Reimbold and Strick Ltd [2002] 1 WLR 2409 at 2434, it was said that:-
"... an unsuccessful party should not seek to upset a judgment on the ground of inadequacy of reasons, unless, despite the advantage of considering the judgment with knowledge of the evidence given and submissions made at the trial, that party is unable to understand why it is that the judge has reached an adverse decision."
By extension, this applies a fortiori in cases of the narrower ambit of judicial review from Appeals Tribunals and the like.
The function of the court in judicial review matters is very clearly set out by Keane J (as he then was) in his judgment in the High Court in Carrigaline Co Ltd -v- Minister for Transport [1997] 1 ILRM 241 at 284, as follows:-
"It is, accordingly, clear from these authorities that this court cannot set aside the decision of a competent Authority merely because it disagrees with the view of that Authority. It cannot, in short, act as a court of appeal from the decision where no such appellate jurisdiction has been conferred on it by law. Subject to that crucial limitation, however, the court can and must set aside a decision where it is shown to be unlawful because of the manner in which the decision was made, whether because the competent Authority failed to consider the matter in a fair and impartial manner or because it took into account factors which it should have excluded or excluded factors which it should have taken into account."
In my judgment, the findings of the Authority in the instant case do not fall foul of that test.
5. The submissions of the Applicant that the case cannot be "parked" once the credibility issue is determined, I accept. However, it is clear that the Authority continued to consider the other issues — it did not restrict its determination to credibility. In this regard, I consider the approach of the Immigration Appeals Tribunal in England in Mahood (3rd February 1994) expressed the correct approach in this regard, which is as follows:-
"It is always important to remember in cases of this kind that witnesses often lie or are economical with the truth. Quite often they are nervous or confused. In many cases, they have been advised to answer questions in a certain way by friends who simply do not understand the importance of telling the truth.
We must not speculate as to why the witnesses said what they did say in this case. But, just because the witnesses told lies in one aspect of a case should not inevitably lead to the conclusion that the burden of proof has not been discharged."
I am satisfied that the Appeals Authority made the appropriate enquiries. ' It is not necessary that there should be exhaustive findings on all and every fact, issue or matter raised; some facts are minor, peripheral and not determinative. What has to be done is to ascertain the true facts that permit a determination to be made as to whether Applicant is entitled to a declaration of refugee status. I am satisfied that this was done in this case.
6. I reject the submission that there was any form of fixed policy applied by the Appeals Authority or the Respondent in reaching the decision in this case and, furthermore, that there was any breach of constitutional justice and, furthermore, that there was no unreasonableness in the circumstances, or irrationality, in arriving at the decision that was arrived at, nor is it contrary to commonsense.
In my judgment, the grounds upon which relief was sought are not substantiated by the evidence as put before the court in the application and, furthermore, that no order can and should be made against the Appeals Tribunal. Insofar as the order sought as regards the Respondent Minister, I am not prepared to make the declarations sought in paragraphs 4(a), (c) and (d) of the Statement of Grounds. The Oireachtas has conferred a discretion under Section 3 of the Immigration Act 1999 upon the Minister and it is not for the court to fetter that.
The Applicant, having been refused refugee status, is not entitled to remain in the State and work in the State.
I refuse leave to apply for judicial review in this case.
END OF JUDGMENT