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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> T R T -V- Minister for Justice & Ors [2007] IEHC 168 (04 May 2007)
URL: http://www.bailii.org/ie/cases/IEHC/2007/H168.html
Cite as: [2007] IEHC 168
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Judgment Title: T R T -V- Minister for Justice & Ors Composition of Court: Dunne J. Judgment by: Dunne J. Status of Judgment: Approved |
Neutral Citation Number: [2007] IEHC 168 The high court Judicial Review [2005 No. 1123 JR] T. R. T. Applicant And the Minister for Justice, Equality and Law Reform the Refugee Applications Commissioner The Refugee Appeals Tribunal Attorney General, and Ireland Respondents And HUMAN RIGHTS COMMISSION Notice Party Judgment by Ms. Justice Dunne delivered on the 4th day of May 2007 Factual Background The applicant herein was born in N. She states that she fled N. in fear of persecution. She stated that she was her husband’s sixth wife and bore him his first son I. She said that her husband had been a member of a secret sect. Following the death of her husband, the sect wished to induct her son into the sect and she did not permit this and was threatened and assaulted as a result. She also faced threats from the other wives and children of her late husband, as her son would inherit his father’s property. Her son ultimately came to Ireland in 1998 having left N. to escape persecution from the sect and his father’s extended family. His application for asylum was rejected and he was deported back to N. He left N. again and went to G. He was also deported back to N. from G. Following his deportation from G. he died apparently in hospital as a result of malaria with other complications. After his death she stated that, sect members demanded his body and she refused to indicate where her son was buried. She was threatened in this regard and she states that she then fled N. She came to Ireland where her daughter resides with her husband and five children. She now resides with them. She states that she would have no protection from persecution in N. The applicant arrived in this jurisdiction on 14th September 2004. Chronology It would be useful at this point to set out the chronology of events in respect of the applicant.
13th October 2004, interview.
23rd October 2004, applicant received notification that the Refugee Applications Commissioner was recommending that she should not be declared to be a refugee. 27th October 2004, notice of appeal dated 26th October 2004 was submitted to the Refugee Appeals Tribunal.
10th December 2004, the first named respondent indicated his refusal to make a declaration of refugee status and that he intended to make a deportation order. Submissions were sought for leave to remain. 6th September 2005, deportation order made.
10th October 2005, notice of motion issued seeking leave to apply for judicial review in respect of the decisions of the second named respondent and the third named respondent and the first named respondent. The right to challenge the decision of the second named respondent and the third named respondent. An issue that has to be considered in relation of this case is the question as to whether the decision of the second named respondent has merged into the decision of the third named respondent, thus precluding the applicant from seeking judicial review of that decision. On this issue, reliance was placed by counsel on behalf of the applicant on the decision of the High Court in the case of Adan v. Refugee Applications Commissioner and the Refugee Appeals Tribunal (Unreported, Finlay Geoghegan J., 23rd February 2007). Counsel for the respondents also placed reliance on that decision. In the course of her decision in that case, Finlay Geoghegan J. considered at length the issue of “merger”. In other words to what extent does a decision of the Refugee Appeals Tribunal oust, supplant or replace the decision of the Office of Refugee Applications Commissioner such that the decision of the Office of Refugee Applications Commissioner is no longer amenable to judicial review. In the course of her judgment Finlay Geoghegan J. considered the decisions in the cases of Savin v. The Minister for Justice, Equality and Law Reform and Others, (Unreported, High Court, Smyth J., 7th May 2002), G.K. v. The Minister for Justice [2002] 2 I.R. 418, Judgment of Hardiman J., Okungbowa v. Refugee Appeals Tribunal and Others (Unreported, High Court, MacMenamin J.), Croitroriu v. Refugee Appeals Tribunal and Others (Unreported, High Court, MacMenamin J., 21st June 2005), and Rusu v. Refugee Applications Commissioner and Others (Unreported, High Court, Hanna J. 26th May 2006). She then concluded as follows at p. 23 of her judgment:-
Section 13(1) of the Act of 1996 envisages that where the Commissioner carries out an investigation under s. 11, she will then prepare a report in writing and prescribes that the report shall refer to certain matters and also ‘shall set out the findings of the Commissioner together with his or her recommendation whether the applicant concerned should or, as the case may be, should not be declared to be a refugee’. The recommendation of the Commissioner is based upon the findings set out in the report. The recommendation is an integral and necessary part of the report of the Commissioner under section 13(1). It is not a decision which in the statutory scheme exists independently of the report of the Commissioner. Further, as a matter of commonsense, on the facts of this application it cannot be suggested that the decision of the Commissioner which is sought to be challenged is confined to the recommendation, included in the report and that the applicant is not seeking to challenge the balance of the report issued by the Commissioner under section 13.”
However in accordance with those decisions the normal position must be that where an appeal is determined an applicant has gone too far and the High Court will not subsequently interfere with the first instance decision by way of judicial review. Whilst the court retains a discretion to do so it should only exercise its discretion to grant certiorari of a decision which has been the subject of a decided appeal where there exist special circumstances which make such late interference necessary to do justice for the parties. Such an approach by way of exception appears required by the principles set out above when considered in the context of the purpose of judicial review and distinction from an appeal process. It also appears consistent with the policy of the courts in relation to the non-duplication of procedures and proceedings. It is not appropriate to try and set out exhaustively what might constitute special circumstances which would warrant late interference by the High Court. It will depend on the facts of each application. Relevant considerations may include the nature of the grounds asserted in support of certiorari; whether they could be considered on appeal; when the applicant became aware of such grounds; whether the applicant was prevented from bringing the application for leave to apply for judicial review prior to determination of the appeal; whether the applicant acquiesced in or permitted the determination of the appeal; any relevant statutory scheme; the time which elapsed prior to determination of appeal and fairness of appeal procedure.” 2. The court retains a discretion to grant judicial review of a first instance decision where an appeal is determined, but the discretion to grant judicial review appeal, should only be exercised where there exist special circumstances such that the grant of judicial review at such a late stage is necessary to do justice for the parties. 3. Such special circumstances will depend on the fact of each application. As highlighted by Finlay Geoghegan J. the issue that has to be determined is whether the applicant has established that such special circumstances exist, such that the court should grant leave. Special circumstances Accordingly I propose to consider the relevant considerations that were urged on me in the course of argument in this case as amounting to such special circumstances. As Finlay Geoghegan J. pointed out the nature of the grounds relied on in support of the application may be relevant. The nature of the grounds is also relevant in the context of an application to extend time to challenge the decisions. Accordingly I will deal with the nature of the grounds when I come to consider the issue of the extension of time. The special circumstances relied on to argue that the applicant herein is entitled to challenge both the decision of the second named respondent and the third named respondent were stated to be (a) the applicant’s diagnosis of depression, (b) her history of trauma and (c) her age, such that it was submitted it could not be said that she knowingly or willingly acquiesced in the determination of the appeal by the Tribunal. Reliance was also placed on the time that elapsed between notification of the Commissioners decision and the determination of the appeal, some seventeen days. The final point relied on by the applicant was that the third named respondent did not rely on significant findings of the second named respondent but notwithstanding, affirmed the second named respondent’s recommendation to refuse the applicant a declaration of refugee status. As stated above, one of the issues relied on is the diagnosis of depression and the applicant’s history of trauma coupled with her age. Dealing with that aspect of the matter, reliance is placed by the applicant on a letter written by a Dr. Conor McNeice dated 20th December 2004. In it, it was stated that the applicant had been a patient of the practice since October 2004. It was noted as follows:-
In the absence of any clear evidence before this court as to the applicant’s medical circumstances, it seems to me to be impossible to reach the conclusion that the applicant did not knowingly or willingly acquiesce in the determination of the appeal by the Tribunal. It does not seem to me that an inference can be drawn by the court from either the letter of Dr. McNeice or the point raised in the further grounds contained in the letter of her solicitor dated 27th October 2004, to the third named respondent such that the applicant was not in a position to “knowingly or willingly” acquiesce in the determination of the appeal. The only other point to note in this regard is the averments contained in the affidavit of the applicant herein at paras. 7 and 9 in which she refers to her state of mind which she stated had been greatly affected since the death of her son “and which affects my ability to remember times and dates”. She further referred to her poor psychological state at para. 9 of the said affidavit. I should note that in the decisions of the second named respondent and the third named respondent, reference was made is made to the fact that the Applicant’s story being incoherent. Nonetheless, as indicated above, in my view the evidence before this court simply does not go far enough in establishing that the applicant herein suffered from any mental illness or disability such that her ability to deal with her appeal to the third named respondent herein was impaired. Finally, her history of trauma and her age were relied on to argue that her ability to deal with her appeal to the third named respondent herein was impaired. I cannot see anything in the evidence before me to support that contention. The second point relied on related to the period of time between the decision of the second named respondent and that of the third named respondent. Undoubtedly the time scale involved was short. Nonetheless it is clear that the applicant was represented before the third named respondent, the notice of appeal was drafted with the aid of legal advice and detailed further grounds as set out in the letter dated 27th October 2004, were furnished on behalf of the applicant. There is no evidence before me to suggest that the applicant was unable to deal with any matters because of the time scale involved. The next issue that I should consider is the nature of the grounds upon which certiorari of the second named respondent’s decision is sought and whether those grounds could have been considered on appeal and the related issue as to when the applicant became aware of such grounds and whether the applicant was in some way precluded from making an application for leave to apply for judicial review prior to the determination of the appeal. Before looking at the grounds in detail, it is worth noting that this is a case in which it was found that the applicant showed either no basis or a minimal basis for the contention that she is a refugee. Accordingly that meant that any appeal to the third named respondent was an appeal on papers only. Given that that was the case, one would have thought that the question of the availability of judicial review, would have been considered at that stage. However, no application for judicial review was brought. In her affidavit, the applicant stated:-
Apart altogether from the issue of the financial resources of the applicant it is necessary to consider the grounds relied on by the applicant in relation to the second named respondent. There are some general grounds which are relied on in respect of both the second and third named respondent, but in relation to the second named respondent the grounds are as follows:- “3. The failure of the second named respondent to have any proper regard to the evidence was in breach of fair procedures. The finding that the deceased son of the applicant had no fear of persecution on the basis that he twice returned to N. failed to have any regard to the fact that he was deported there on each occasion and further failed to have regard to the fact that he was dead three weeks following his second deportation to N.. Further, the inference drawn from the aforesaid perceived lack of fear of persecution on the part of the applicant’s son was used to undermine the credibility of the applicant. 4. The procedures and consideration applied by the respondents to the applicant’s case are not capable of a perception of objective fairness and/or free of the perception of capriciousness. Further the respondents further erred in law in failing to apply the appropriate standard of proof and/or have any proper regard to the evidence adduced. Further the failure to allow the applicant time to locate and produce identity documents in circumstances where the failure to furnish same was central to the decision to deny the applicant an oral appeal. 16. The second named respondent failed to apply to the applicant a policy that had been applied to other persons in like positions. The said failure is such a misuse of governmental power as to entitle this Honourable Court to grant the applicant indefinite or limited leave to remain in the State.” In the formal notice of appeal to the third named respondent the grounds relied on by the applicant were that the second named respondent had erred in fact and in law “as the applicant has established a case as such as to qualify her for refugee status as defined in s. 2 of the Refugee Act as Amended (1996).” In the “Further Grounds” relied on, a number of further matters were set out. They are as follows:
My client is convinced that her son’s return to N. and his subsequent death was caused by the influence of parties who wished him to undergo this particular initiation ceremony. The applicant is suffering from considerable memory loss which may be attributable to certain degenerative neural diseases, such as Alzheimer’s disease. We have been instructed that such appellant is attending her General Practitioner and we await a medical report in support of such. My client instructs me that the police in N. consider her difficulties to be family issues and they would not investigate or intervene. Further the police in her particular area were under the influence of those parties who intended to harm her and her son. The client did attend (sic) to internally relocate in N., however this was not successful and she ultimately travelled to Ireland where she claimed asylum. The client did not have a passport when she presented to the Office of Refugee Applications Commissioner. This was because the passport or papers which were used by her were retained by the agent upon her arrival in Ireland. This is a standard practice amongst agents and we believe that the appellant should not be held responsible for such shortcomings. Further it should be noted that the applicant has not ever previously travelled outside her own country and therefore she would not be familiar with the requirements of immigration officers at international borders. The Refugee Appeals Commissioner incorrectly determined the appellant’s application without having proper regard for the appellant’s state of mind and personal circumstances.” Although it is not expressly set out in the Statement of Grounds herein, one of the issues complained of by the applicant was the reliance in the decision of the second named respondent upon files/papers relating to the asylum histories of the applicant’s son and daughter and a country of origin report which were not disclosed to the applicant. It is clear from the report pursuant to s. 13(1) of the Refugee Act 1996, that the Commissioner in its decision relied on that material. That this was so, was readily apparent. To quote from the s. 13(1) Report it is noted:
Having regard to all the circumstances and to the submissions I have heard and having considered the criteria set out in the decision in Adan v. RAC and RAT referred to above, I cannot see any basis for coming to the view that this court should interfere with the first instance decision by way of judicial review in circumstances where an appeal has been determined in respect of the first instance decision. I am not satisfied that there exist special circumstances as would permit this court to exercise its discretion to grant leave to apply for judicial review in respect of the decision of the second named respondent. Decision of the third named respondent Having reached that conclusion it is then necessary to consider whether or not the applicant has established the necessary grounds to be granted leave to apply for judicial review in respect of the decision of the third named respondent. In the course of submissions complaint was made as to the finding of the Tribunal on the basis that the Tribunal had rejected the substantial findings of the second named respondent based on the asylum history on the son and daughter of the applicant and then went on to affirm the recommendation of the second named respondent to refuse the applicant a declaration of refugee status, stating:-
s. 13(6)(a) of the Refugee Act 1996, applied to the applicant. In support of this submission reliance was placed on the decision in the case of Iroegbu v. Refugee Appeals Tribunal (Unreported, High Court, Murphy J., 23rd January 2007) in which it was stated:-
Extension of time If I am wrong in my view that the decision of the second named respondent cannot be challenged as the applicant failed to establish special circumstances which would permit the court to exercise its discretion in her favour and if I am incorrect in my view that the applicant herein has not established the necessary grounds to challenge the decision of the third named respondent, I would nonetheless have great difficulty in granting leave to apply for judicial review in this case because of the delay in making the application for judicial review. The question of an extension of time to challenge the decisions of the second and third named respondent was dealt with at some length in the submissions of counsel herein. It was submitted that the special circumstances relied on in relation to the question of entitlement to challenge the decisions of both the second and third named respondents were also of relevance to this issue, namely the applicant’s diagnosis of depression, her history of trauma and her age. In this regard it is worth remembering that the applicant is approximately 56/57 years of age. I have already referred to the situation in relation to her health of which the only concrete information there is consists of the letter from her doctor in 2004. There is no evidence whatsoever before this court to suggest that by reason of her age or her state of health in respect of any depressive illness or any neurological deficit is such as to have prevented her from bringing an application sooner. As referred to previously, the applicant in para. 18 of her affidavit stated that she was not informed of the entitlement to challenge the decisions of the Commissioner and/or the Tribunal. In support of his submissions on this point, counsel on behalf of the applicant referred to two decisions, namely that of Kelly v. The County Council of the County of Leitrim and An Bord Pleanála (Unreported, High Court, Clarke J., 27th January 2005) in which Clarke J. noted the various factors to be considered prior to a decision as to whether or not to exercise a discretion to extend time. Whilst that was a case involving planning at p. 12, he noted:-
As I have pointed out there is little or no explanation before the court in relation to the reasons for the delay in bringing this application. It is difficult to see upon what basis one could have extended the time herein. Given the view I have taken on the issue of a challenge to the decision of the second named respondent and the absence of substantial grounds upon which to challenge the decision of the third named respondent, the question of an extension of time simply does not arise. Accordingly I am refusing to grant leave to apply for judicial review in respect of the decisions of the second and the third named respondents herein. I will hear further submissions from the parties in relation to the application for leave in respect of the decision of the first named respondent herein. |