2005 IEHC
423
THE HIGH
COURT
JUDICIAL
REVIEW
[2005 No.
129 JR] BETWEEN
THERESA
NKECHI FASAKIN
APPLICANT
AND
THE
REFUGEE APPEALS TRIBUNAL AND
THE MINISTER FOR JUSTICE EQUALITY AND
LAW REFORM
RESPONDENTS
JUDGMENT delivered by The Honourable
Mr. Justice O’Leary on the 21st day of December,
2005.
The
applicant seeks leave to apply by way of judicial review for the
following orders:
(a)
An Order of Certiorari by way of application for Judicial Review
quashing the decision of the first named Respondent, dated 20th
January, 2005, to refuse to recommend that the Applicant be declared
to be a refugee, pursuant to section 16 of the Refugee Act
1996.
(b) A
Declaration by way of application for Judicial Review that the first
named Respondent erred in law and/or in fact in its determination of
the Applicant’s appeal dated the 20th January, 2005.
(c) An Order of Mandamus by way of
application for Judicial Review requiring the first named Respondent
to re-consider the Applicants appeal against the recommendation of
the Refugee Applications Commissioner.
(d) An Injunction by way of
application for Judicial Review restraining the second named
Respondent from acting on foot of the decision of the first named
Respondent dated 20th December, 2005, pending the outcome of these
proceedings.
(e) An
Order allowing for an extension of time within which to bring an
application for the judicial review, pursuant to Section 5(2)(a) of
the Illegal Immigrants (Trafficking Act), 2000.
(f) Such further or other Order as to
this Honourable Court shall seem meet.
(g) An Order providing for
Costs.
The reliefs are
sought on the following grounds:
The Tribunal member,
acting at all times on behalf of the first named Respondent,
erred in law in refusing and/or failing to consider adequately
or at all the decision to grant refugee status made by the first
named Respondent in respect of the Applicant’s
daughter.
The
Tribunal Member erred in law in failing to perform his duty of
inquiry, as facilitated by the provisions of the Refugee Act,
1996, and as required by the UNHCR Handbook on procedures and
criteria for determining refugee status. In particular, but without
prejudice to the foregoing, he so erred in law in not giving
proper consideration to the decision by the first named
Respondent to grant the Applicant’s daughter refugee
status.
The
Tribunal member erred in law failing to consider the experiences
of members of the Applicant’s family in assessing whether the
Applicant had a well founded fear of
persecution.
The
Tribunal member erred in law in requiring the Applicant to show
that she was singled out for persecution in order for her to be
granted refugee status.
The Tribunal member erred in law in his application of
the concept of persecution.
The Tribunal Member erred in law
in failing to apply a presumption in favour of the Applicant
that she had a well-founded fear of persecution arising from her
experiences including past persecution suffered.
The Tribunal Member failed to
apply the correct standard of proof, that is, whether there was
a “reasonable possibility” that the Applicant would be
persecuted in the future.
The Tribunal Member failed to give the Applicant the
benefit of the doubt as required by the UNHCR Handbook on
procedures and criteria for determining refugee
status.
The
Tribunal member failed to provide adequate reasons as to why he
was not satisfied that the Applicant had a well-founded fear of
persecution for a Convention reason.
The Tribunal Member failed to
consider and/or apply properly or at all the Notice of Appeal
filed on behalf of the Applicant.
Further, the tribunal member erred
in law in failing to set aside the finding of the Refugee
Applications Commissioner under section 13(6)(a), and in failing
to grant the Applicant refugee status or to direct that the
Applicant be re-interviewed by the Commissioner or to direct
that she have a full, oral hearing before the
tribunal.
The
tribunal member made findings for which there was no or no
adequate or proper, evidential basis.
The tribunal member acted in
breach of section 16(8) of the Refugee Act,
1996.
The tribunal
member relied upon country of origin information, and made
findings that were based upon country of origin information,
that were never put to the applicant in breach of the
applicant’s rights to constitutional and natural justice and to
fair procedures, and in breach of the first named respondent’s
statutory duty.
The tribunal member took into account irrelevant
considerations and/or failed to take into account relevant
considerations.
The tribunal member made findings that were unreasonable
and/or irrational.
The tribunal member erred in law in the principles that
were applied in determining whether the applicant was a refugee
within the meaning of section 2 of the Refugee Act 1996, as
amended.
The
applicant is at risk of being made the subject of a deportation
order unless the second named Respondent is restrained by the
injunctive relief sought at paragraph 4(d)
hereof.
The
proceedings are supported by the following
affidavits:
1. Michael
Crowe solicitor for the applicant dated 8th February,
2005,
2. The applicant
dated 18th February 2005,
3. Sandra Morayo Fasakin daughter of the applicant dated 18th
February 2005.
These affidavits together with the formal pleadings and the
legal submissions made have been considered by the
court.
Factual
background to application set out in affidavit:
1. The applicant was born in Nigeria
in 1951,
2. She
arrived in Ireland on 15th June 2004 and applied for refugee status
at that time.
The
following steps have been taken in this application:
1. On 13th July, 2004, the applicant
attended for interview at the Office of the Refugee Application
Commissioner when she was interviewed by Mr. Pat
Lally.
2. Following
that interview Mr. Lally completed a report dated 16th July, 2004,
under S. 13(1) of Refugee Act 1996. This report recommended a
refusal of a declaration of refugee status.
3. This report was considered and
endorsed by Ms. Cecelia Lynch on 21st July 2004.
4. The report purported to hold that
the application fell within S(6)(a) of the Refugee Act 1996 thereby
ruling out the possibility of an oral hearing in respect of any
appeal.
5. The
applicant appealed the decision on 5th August, 2004.
6. The Refugee Appeal Tribunal (herein
after R.A.T.) by letter dated 20th January, 2005 conveyed to the
application its appeal decision reached on 9th December,
2004.
7. The judicial
review of that decision was commenced out of time by a day (as
calculated by the solicitor for the
applicant)
Preliminary Ruling
The court will not allow the small
delay in commencing the judicial review to impede the granting of
the relief sought if otherwise justified.
Applicant’s submissions
The applicant
proposes to rely on three general points to set aside the decision
of the Refugee Appeals Tribunal in the event of leave being
granted.
The first of
these relates to the decision of the Refugee Application
Commissioner to conclude that this was a case to which S.13(6)(a) of
the Refugee Act, 1996 applies. This decision was taken on 21st July,
2004 and conveyed to the applicant prior to her decision to appeal
the Refugee Application Commissioner finding in her application
which appeal was lodged on 5th August, 2004. The decision to
categorise the application as falling within the ambit of s.13(6)(a)
was taken (within the refugee application system) in July, 2004 and
was not itself a decision on which Refugee Appeal Tribunal had to
adjudicate. These proceedings commenced on 9th February, 2005. No
attack on the legal validity of the decision to categorise the
application as falling with s.13(6)(a) was mounted in the meantime.
The application to challenge this preliminary decision has only
arisen after the application has been though the next stage of the
process. Naturally the application to review the status of the
application, as falling within s.13(6)(a), is long past the
limitation period of 14 days set out in the legislation. No good
reason has been given to this court for this delay and that basis of
the judicial review application falls at this preliminary stage. The
attempt to legitimise the late raising of this point by referring to
the failure of the Refugee Appeal Tribunal to set aside the Refugee
Appeal Commissioners decision on s.13(6)(a) is rejected as the
Refugee Appeal Tribunal has no such power or function.
The remainder of the
grounds relate to the alleged failure of the deciding tribunal to
fully or all take into account the full circumstances of the
applicant’s application. In particular it is alleged there was an
alleged failure to apply the proper principles relating to the
threat to the applicant by reason of her ethnic origin and her
membership of that group. The decision was allegedly reached by
placing undue emphasis on the absence of personal danger to which
the applicant. By so doing the dangers of her group membership were
not give appropriate weight. The court has reviewed all the
available evidence and is satisfied that the decision arrived at is
consistent with a reasonable view of the evidence available. It
could not be said to be an unreasonable interpretation of the
evidence available.
One further discrete point is made on behalf of the
applicant. This is the failure of the Refugee Appeal Tribunal to
consider the terms of the decision of one of its own members made on
12th May, 2003, in the case of the applicant’s daughter. Evidence
from family members other than the applicant could be relevant in
the event that a particular family was the subject of persecution.
Similarly evidence of ethnic persecution can be persuasive though
not yet personal to the applicant. However, the decision of a body in a particular case is
neither evidence in an other case nor does it create a binding
authority for future cases. Each case must be considered on its own
merits. Imagine the outrage there would be if an application was
refused because the applicant’s daughter had previously been
refused. It is also noted in this case that as part of the appeal
process the applicant quoted the terms of the decision made granting
the applicant’s daughter refugee status. In the view of this court,
the Refugee Appeal Tribunal in its decision correctly stated the law
when it held that it could not be influenced by the decision in the
daughter’s case.
If
the court granted leave in this case it would be sanctioning a
judicial review of the decision of the Refugee Appeal Tribunal which
could only be changed by substituting a courts judgment on the facts
for that of the deciding body. Such a process would convert the High
Court into an appeal court from the Refugee Appeal Tribunal. That is
not the function of judicial review.
The application is refused.
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