Neutral Citation Number: [2005] IEHC 462
[2004 No. 1125 JR]
BETWEEN
F. H. Z.
APPLICANT
-and-
DENIS LINEHAN MEMBER OF THE REFUGEE APPEALS TRIBUNAL
&
MINISTER FOR JUSTICE, EQUALITY & LAW REFORM, REFUGEE APPEAL TRIBUNAL
RESPONDENTS
JUDGMENT of Mr Justice Clarke delivered on the 2nd day of November 2005.
In these proceedings the applicant seeks leave to apply by way of judicial review for the purposes of quashing the decision of the Refugee Appeals Tribunal ("RAT"). In that decision the RAT affirmed a previous recommendation of the Refugee Applications Commissioner ("RAC") to the effect that refugee status had not been established. In order to obtain leave, the applicant must show that there are substantial grounds for challenging the decision of the RAT.
In Re The Illegal Immigrants (Trafficking) Bill, 1999, [2000] 2 IR 360, The Supreme Court held at page 380 that:
"As regards the requirement that an applicant for leave to issue judicial review proceedings establish 'substantial grounds' that an administrative decision is invalid or ought to be quashed, this is not an unduly onerous requirement since the High Court must decline leave only where it is satisfied that the application could not succeed or where the grounds relied on are not reasonable or are trivial or tenuous."
Prior to entering on a consideration of the legal issues put forward by the applicant as a basis for his challenge to the decision of the RAT in this case, it is necessary for me to deal with the question of delay.
The impugned decision of the RAT was made on 25th August 2004 and was made known to the applicant by letter dated 31st August 2004. These proceedings were issued on 8th December 2004. Section 5 of the Illegal Immigrants (Trafficking) Act, 2000 provides:-
"(2) An application for leave to apply for judicial review under the Order in respect of any of the matters referred to in subsection (1) shall-
(a) be made within the period of 14 days commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of the Order concerned unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made."
The proceedings were, therefore, approximately seven and a half weeks out of time.
The applicant was represented before the RAT by the Refugee Legal Service, a component of the Legal Aid Board, run under the auspices of the second named respondent Minister for Justice.
In Kelly v. Leitrim County Council (unreported, High Court, Clarke J., 27th January 2005) I set out a series of factors which should, without being exhaustive, be taken into account in considering whether or not to exercise a discretion to extend time of the type involved here.
While the decision in that case was concerned with the similar position that applies in relation to challenges to the planning process, it is clear from the terms of the decision that it is intended to apply, with suitable adjustments, to each of the similar regimes, including asylum, referred to in the course of the judgment.
Before analysing the factors identified in Kelly and applying them to the facts of this case, I should note the following general facts:-
As appears from the affidavit of the applicant's solicitors, the real reason for the delay in this case stems from the length of time it took for the applicant's request for a Legal Aid certificate to be processed, particularly because the application in this case was originally refused.
It must also be said that there is considerable merit in the comment by counsel for the respondent that it is difficult to see how, in most cases, the procedures operated by the Legal Aid Board could ever be complied with within the 14-day period set out in section 5(2) of the Illegal Immigrants (Trafficking) Bill, 1999.
It should also be noted that it is not suggested that the applicant in this case was personally responsible for any of the delay or that he failed to prosecute the matter, so far as it was within his competence, with diligence.
Turning then to the factors identified in Kelly by reference to the letters by which they are designated in that judgment, I have come to the following views:
(a) The length of time specified in the statute
Where, as here, the period is extremely short, it may well be easier for a person to establish that, despite reasonable diligence, that person had been unable to meet the time limit concerned. It is certainly the case that the applicant personally has shown reasonable diligence. That, however, begs the question of the extent to which it may be said that the applicant may be taken to be responsible for delays attributable to the system within which his advisors are required to work. The evidence does not suggest that any of the individual solicitors or counsel involved contributed in any way to the delay.
For the reasons addressed at page 17 of the judgment in Kelly, it seems to me that delay attributable to advisors, while always of some relevance, is a factor which looms less heavily in asylum-type cases. It seems to me that it must weigh less heavily still in a case where the delay is substantially attributable to a system run under the auspices of the respondent Minister.
(b) Third party rights
It is clear that no third party rights are involved in a case such as this.
(c) The importance of the integrity of the process
Appropriate weight needs to be attached to the statutory intent expressed in the 1999 Act for the bringing of early certainty to certain types of applications such as those with which we are involved here.
(d) Blameworthiness
The comments which I have made at (a) above again apply under this heading.
(e) The nature of the issues involved
There can be little doubt that a significant weight needs to be attached to the fact that the consequence of excluding the applicant, who may arguably be a genuine asylum seeker, from redress in the courts could be severe.
(f) The merits of the case
For the reasons set out in Kelly, it is for the respondent to raise the question of the merits. However, where, as here, and as is normal practice in asylum cases, an application in relation to delay is heard at the same time as an application for leave, the difficulty identified in Kelly does not appear to arise.
Having regard to the lack of blame on the applicant personally, the absence of any third party rights affected, and the significance of denying access to a potentially genuine asylum seeker to the courts, I feel that those factors outweigh, on the facts of this case, the undoubted importance to be attached to maintaining the early certainty of the system. Subject, therefore, to the merits of the case to which I now turn, I would be prepared to extend time.
The Merits
The grounds put forward on behalf of the applicant in seeking leave to challenge the decision of the RAT by way of judicial review are three in number:
In the first ground, the applicant contends that in the impugned decision the RAT concluded that the applicant originally stated in the questionnaire which he was required to complete for the RAC that he was fearful of members of the Ba'athist Party. The decision further notes that he made no reference at that point to any fear of harmful action being taken against him by the family of his former employer. It therefore appears that the RAT cast doubt upon the applicant's credibility by virtue of the disparity between the account which he gave at the hearing before the RAT and the account earlier given in the questionnaire.
The applicant relied at the hearing before the RAT on the fact that the questionnaire was an English language version and that the applicant had a limited command of the English language. There were, apparently, no questionnaires available in the Kurdish dialect spoken by the applicant. Counsel acting on behalf of the applicant at the appeal before the RAT made submissions to the effect that no account ought to be taken of the questionnaire as it was completed in the English language of which the applicant had a limited grasp. Counsel argued therefore that it was not appropriate that account should be taken of that questionnaire as a basis upon which to determine the applicant's claim and/or to undermine the credibility of his claim.
It is contended that the tribunal member ignored this submission when he addressed
issues concerning the applicant's credibility. It certainly appears that the tribunal member came to the view that "the applicant accepts that he never mentioned his fear of Duma's family and tribe in his questionnaire".
On that basis the applicant submits that the approach of the RAT decision-maker in this case falls squarely within the parameters of the judgment of this court in Bujari v. The Refugee Appeals Tribunal & Ors (unreported) High Court, Finlay Geoghegan J., June 2003. In that case the applicant had failed to disclose at first instance a fact that he subsequently disclosed at appeal. Counsel who represented him at the appeal led evidence from the applicant as to an explanation as to why the applicant had failed to so disclose at the outset.
On the facts of that case, this Court was satisfied that the decision-maker had failed to deal with the explanation offered and had held against the applicant on grounds of lack of credibility as a result of the apparent inconsistency; without dealing with the explanation. The inconsistency referred to was the fact that he mentioned something on appeal that was not referred to earlier.
Finlay Geoghegan J. in that case was satisfied that:
"…on a careful consideration of the decision of the member of the tribunal herein, that no reference is made at all by him to any explanation given to him at the oral hearing for the material difference in the facts as stated in the initial interview and at the oral hearing. Further I am satisfied that on a fair reading of that decision the change in the facts was a material factor in the tribunal member's assessment of the credibility of the applicant and his ultimate assessment that the applicant's story (presumably the story given at the appeal) was not credible.
"I have concluded that on the facts of this case that there are substantial grounds for contending that the tribunal member was under an obligation, as a matter of fair procedures, in the assessment of the applicant's claim for refugee status, to consider and assess the explanation given to him at the appeals oral hearing of the reason for which the applicant did not disclose at an earlier stage and was now disclosing that his father was a Serb collaborator and that this was the cause of his parents' killing and his fear of returning to Kosovo and that the failure to have done so invalidates the decision."
On that basis Finlay Geoghegan J. granted leave.
It is submitted that in this instance, while it was open to the RAT member to reject the explanation given as to why the applicant had not mentioned certain information at the first instance, the member was nonetheless obliged to address same before rejecting it.
The respondent, on the other hand, seeks to distinguish Bujari on the grounds that the RAT in that case was concerned with a contention of a psychological barrier which allegedly prevented disclosure of the ground at an early stage.
Counsel for the respondent drew attention to a series of references in the questionnaire filled in by the applicant in this case from which it might be inferred that the applicant had not a significant difficulty with English.
It may well be that if the decision-maker had actually recorded a conclusion similar to the submission by counsel, it would have been difficult for the applicant to mount a challenge to it. However, the point here is that, as in Bujari, there is no evidence that the RAT decision-maker actually considered the explanation. It seems to me therefore that the applicant has established substantial grounds under this heading for his challenge.
The applicant raises two other points upon which he seeks leave to challenge; both stem from a passage from the decision of the RAT in which the following was said:
"The applicant also has a fear on account of the fact that he is a member of the Zubari tribe which could be perceived as being pro Saddam Hussein and accordingly he could be targeted by the Kurds as a general member of that tribe. In that regard the applicant may be the potential victim of tribal warfare. There is no evidence to suggest that he would be specifically targeted over and above any other member of that tribe.
I now refer to paragraph 164 of the UNHCR Handbook which states as follows:
"Persons compelled to leave their country of origin as a result of international or national armed conflict are not normally considered refugees under the 1951 Convention or the 1967 Protocol."
In my view that passage was correctly interpreted by counsel for the respondent as implying that there was only one decision, i.e. that the absence of specific targeting led to an inference that any fear which the applicant might now have stemmed from a national armed conflict. While I agree with counsel for the applicant that in principle refugee status has, in general terms, to be determined without any requirement for specific targeting, I am not satisfied that this is really what the RAT decision maker in this case actually did.
As the relevant point was raised at paragraphs 4.5 and 4.6 of the report of the Refugee Applications Commissioner, it was, therefore, before the RAT and was known to the applicant as an issue which needed to be addressed at the hearing. It was, therefore, in my view, open to the RAT to come to the decision which it did on the materials before it.
I am not, therefore, satisfied that substantial grounds for a challenge have been made out under this heading. However, since substantial grounds have been made out under one heading, it seems to me, for the reasons which I have indicated earlier in the course of this judgment, that I should extend time. I would therefore propose extending the time for the bringing of this application, granting leave to seek all of the relief set out at paragraph D of the Intended Statement of Grounds but confine the grounds upon which that relief can be sought to those specified at paragraph E(i) to E(v).
I will direct that a motion seeking full judicial review on the grounds identified can be brought for 28th November 2005. Clearly this order should extend the time, as I have indicated I would, until the end of this week for bringing that application, and I will reserve the question of costs to the judge dealing with the substantive issue.
Approved: Clarke J.
I certify the foregoing to be a correct and complete transcript of my shorthand notes: