HC 213/04
[2002 No. 757 JR]
BETWEEN
APPLICANTS
RESPONDENT
JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 14th day of May 2004.
This is an application seeking leave to issue Judicial Review for the purpose of seeking "an Order of Certiorari quashing the decision to refuse the applicants refugee status". The Statement of Grounds does not identify the decision but the grounding affidavits indicate that the decisions sought to be challenged are decisions of the Refugee Applications Commissioner communicated by letters dated 5th November 2002 to the applicants. Notwithstanding, the Refugee Applications Commissioner is not joined as a respondent.
The application to seek leave to apply for an Order of Certiorari of a decision of the Refugee Applications Commissioner is subject to the provisions of s.5 of the Illegal Immigrants (Trafficking) Act, 2000 and accordingly must have been brought on notice to the respondent. Further this court is precluded from granting leave by reason of s.5(2)(b) unless the applicants satisfy the court that they are substantial grounds for contending that the decision is invalid or ought to be quashed.
The application is grounded upon an affidavit of the solicitor for the applicants Mr. Nial Sheeran and an affidavit of the first named applicant. The grounds sought to be relied upon in the Statement of Grounds are set out at par. 5(a) to (l) inclusive.
The Statement of Grounds also seeks a declaration "that the provisions of s. 19 of the Refugee Act, 1996 are void having regard to the provisions of Bunreacht na hÉireann". This relief is not subject to the provisions of s.5 of the Act of 2000. It was not proceeded with at the hearing before me and I would observe that the Statement of Grounds does not set out any substantive ground which would warrant granting leave even on an ex parte basis to seek such relief.
Background facts.
It appears from the affidavits filed in the proceedings and documents exhibited therein that the first and second named applicants are Israeli nationals who with their four children came to Ireland from Israel in March 2002 and each claim a declaration of Refugee Status upon the basis that they have a well founded fear of persecution for a convention reason namely race, religion or nationality. The applicants were born in Russia. Each had one or more Jewish parent. In 1991 they moved to Israel under the "Law of Return". They allege subsequent discrimination and persecution by the Israeli State by reason of their original Russian nationality and by reason of the fact that they are non-religious persons and also by reason of the fact that they were baptised into the Russian Orthodox faith for the purpose of standing as godparents to the child of a friend whilst living in Russia. The applicants make particular allegations based on their perceived treatment by reason of a decision of a Rabbinical Court in Israel. This is simply a brief summary of the background facts as this court is not concerned with the substance of the applicants claim to be entitled to a Declaration of Refugee Status.
It is assumed that the applicants made an application for a Declaration of Refugee Status in the normal way. Mr. Sheeran in his Affidavit deposes to the fact that they were interviewed on behalf of the Refugee Applications Commissioner on the 4th September, 2001 and were legally represented by his firm at those interviews. Such interviews normally follow the making of an application for a declaration of refugee status.
By letters dated 5th November, 2002 the applicants were informed that the Refugee Applications Commissioner was recommending that they should not be declared to be a refugee. The applicants were sent the report pursuant to s.11(2) of the Refugee Act, 1996 and the report and recommendation of the Refugee Applications Commissioner pursuant to s.13(1) of the Act of 1996 (as amended).
Mr. Sheeran states that a Notice of Appeal against the decision of the Refugee Applications Commissioner has been entered. Such appeal is to the Refugee Appeal Tribunal in accordance with the Refugee Act, 1996.
Grounds.
The grounds relied upon in support of the application for leave to seek certiorari of the decision of the Refugee Applications Commissioner as set out in the Statement of Grounds and pursued at the hearing are:
"a. The Respondent, her servants or agents, wrongly; and in excess of jurisdiction; proposes that the Applicants should return to Russia;
b. The Respondent, her servants or agents, offending the Constitutional principle of Audi Alteram Partem, relies on selected information which the Applicants were not made aware of or given any opportunity to consider or respond to in making a recommendation;
c. The Respondent, her servants or agents, wrongly failed and omits to produce records of the Interviews undertaken with the Applicants;
d. The Respondent, her servants or agents, wrongly failed to consider and to evaluate information and documents submitted on behalf of the Applicant; including a baptismal certificate verifying the Applicants account of the circumstance of their conversion to the Orthodox faith and information concerning restrictions on religious freedom in Israel;
e. The Respondent, her servants or agents, wrongly failed and refused to accept a burden of proof in respect of the Applicants applications; in particular failing and refusing to verify the Applicants account of wrongful prosecution; while wrongfully choosing to not accept the applicants testimonies in that respect;
f. The Respondent, her servants or agents, failed to apply the benefit of the doubt;
g. The Respondent, her servants or agents, decision is irrational and unreasonable; including with reference to the contents of information she herself relies on in refusing the Applicants applications;
h. The Respondent, her servants or agents, wrongly relies on an unidentified Court case; which case further does not concern the same circumstance as that of the Applicants persecution;
i. The Respondent, her servant or agents, wrongly fails to consider and evaluate the fear of persecution applying to the third, fourth, fifth and sixth named Applicants;
j. The servants or agents of the Respondent who interviewed the Applicants lacked the necessary qualification, expertise or experience;
k. The absence of legal assistance including particularly the provision of legal aid for the purpose of freely chosen legal representation;
1. Such further and other Grounds as may be advanced at the hearing of this application"
The first and second named applicants were separately represented by counsel at the hearing. No affidavit was sworn by second named applicant.
The respondent, as he is entitled to do did not file any Affidavit in response to the Application for Leave. On his behalf it is submitted that on the facts in Affidavits filed and exhibits thereto none of the grounds set out in the Statement of Grounds constitute substantial grounds for contending that the decision of the Refugee Appeals Commissioner is invalid. It is further contended that the Refugee Appeals Commissioner should be named as a respondent as it is his decision which is sought to be challenged.
Independently of the above submissions, it was submitted that having regard in particular to the entitlement of the applicants to appeal the decision of the Refugee Appeals Commissioner to the Refugee Appeals Tribunal and having regard to the wide ranging nature of that appeal under the Act of 1996 that the court should exercise it's discretion to refuse the application for leave to challenge the decision of the Refugee Appeals Commissioner.
Conclusions
The decisions of the Refugee Application Commissioner herein were decisions to which s.5 of the Illegal Immigrants (Trafficking Act) 2000, applies and hence the applicants must establish that they have "substantial" grounds for asserting that the decisions of the Commissioner are invalid. In accordance with the decision of the Supreme Court in Re Article 26 of the Constitution and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 to constitute substantial grounds the alleged grounds must be equivalent to "reasonable" "arguable" and "weighty" and must not be "trivial or tenuous".
Where, as in this application, the applicants in their grounds rely upon assertions of fact they must also in relation to those facts meet the standard set out by the Supreme Court in G v Director of Public Prosecutions [1994] 1 I.R. 374. In that case the test set out by Finlay CJ at p. 378 for an application for leave ex parte included establishing:
"(b) That the facts averred in the affidavit would be sufficient, if proved, to support a statable ground for the form of relief sought by judicial review.
(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks".
Applying the "substantial grounds" standard in s.5 of the Act of 2000 to the above test set out by the Supreme Court it appears that the applicants herein must establish inter alia (i) that the facts averred to in the Affidavits would be sufficient, if proved, to support substantial grounds for the form of relief sought by judicial review; and (ii) that on those facts substantial grounds in law can be made out that the applicants are entitled to the relief which they seek.
Applying these tests to the grounds advanced and the Affidavits filed in these proceedings I have reached the following conclusions:
- The decisions of the Commissioner do not contain a proposal that the applicants should return to Russia and therefore ground (a) is not made out.
- The Affidavits do not contain any factual averments which if proved at a hearing would substantiate the grounds set out at paragraphs (b),(c),(d),(j) and (k) of the Statement of Grounds as constituting substantial grounds for asserting that the decisions of the Commissioner are invalid. In relation to ground (k) the evidence is that the applicants were represented by a solicitor of their choice at interview.
- In support of ground (e) it was submitted that the Commissioner was, on the facts of this case, under an obligation to make contact with the authorities in Israel for the purpose of evaluating the applicant's allegation of prosecution by the Israeli State authorities. Reliance was placed for this and ground (f) upon par. 196 of the United Nations handbook on procedures and criteria for determining refugee status. This provides:
"It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while 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. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt".
I cannot accept that on the facts of this case the above paragraph imposes an obligation on the Commissioner to make contact with the Israeli authorities. The s.13(1) report relied upon by the applicants makes clear that in accordance with the principles set out in the above paragraph the official of the Commissioner evaluated claim made on behalf of the applicants that the Israeli State and civil legal system could not offer effective protection against the possible ruling of the Rabbinical Court (in respect of which the applicants were given the benefit of the doubt) and tested that claim against both country of origin information and the facts pertaining to the circumstances in which the applicants left Israel. Further the s.13(1) reports in respect of each of the applicants do not disclose an error of law by the examiner in relation to the application of the burden of proof or giving the applicants the benefit of the doubt which could be considered to constitute substantial grounds for contending that the decision of the Commissioner is invalid.
- Counsel on behalf of each of the applicants submitted on the traditional judicial review principles established by the State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 and O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 that the decisions were irrational or unreasonable. Applying those principles to the decisions and the reasons set out in the s.13(1) reports I accept the submission of counsel for the respondent that such reports disclose that there was material, and in particular country of origin information, upon which the Commissioner could reach the decision reached. Accordingly this ground also fails.
- Counsel for the second named applicant sought to advance ground (h) by distinguishing the particular case referred to from the general understanding of the Law of Return in Israel. Such contention even if valid could not constitute a substantial ground for contending that the decision of the Commissioner was invalid. It formed part of the assessment of fact on behalf of the Commissioner.
- Counsel for the second named applicant also sought to advance ground (i) by seeking to rely on facts allegedly stated by the second named applicant in her interview. However no Affidavit was sworn on behalf of the second named applicant and accordingly this ground cannot be considered by this court on that basis. I would observe that the decisions being challenged are decisions taken by the Commissioner on applications for declarations of refugee status by each of the applicants and therefore must concern their alleged fear of persecution for a convention reason.
As I have concluded that the applicants have not established substantial grounds for contending that the decisions of the Commissioner are invalid such as would entitle them to an order giving them leave to seek an order of Certiorari of such decisions, it is unnecessary for me to consider whether even if such substantial grounds did exist I would exercise my discretion in favour of granting leave by reason of the fact that the applicants are entitled to appeal the decisions of the Commissioner and the appeal is an appeal on the merits with the possibility of an oral hearing before a member of the Tribunal. On an application such as this the court is not permitted to consider the merits of the applicants claim to a declaration of refugee status. Such issues will be considered on an appeal by the Refugee Appeals Tribunal.
Likewise it is unnecessary to consider the effect of the failure to join the Refugee Applications Commissioner. He should be joined where his decision is challenged.
Accordingly I would dismiss the application.