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Cite as: [2007] IEHC 257

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Judgment Title: N. -v-MJELR & Ors

Neutral Citation: [2007] IEHC 257

High Court Record Number: 2004 205 JR

Date of Delivery: 30 July 2007

Court: High Court

Composition of Court: Finlay Geoghegan J.

Judgment by: Finlay Geoghegan J.

Status of Judgment: Approved

This judgment is circulated in redacted form to avoid identification of the parties

Neutral Citation Number: [2007] IEHC 257

THE HIGH COURT

JUDICIAL REVIEW

2004 No. 205 J.R.

BETWEEN/

T.N.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,
THE REFUGEE APPLICATIONS COMMISSIONER
AND THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

Judgment of Ms. Justice Finlay Geoghegan delivered 30th July, 2007.

The applicant is Romanian. He, his wife and daughter came to Ireland in 2002. He and his wife with the assistance of Cusack McTiernan Solicitors made applications for declarations of refugee status in April, 2003. In January, 2004 the Refugee Applications Commissioner (the Commissioner) issued reports pursuant to s. 13 of the Refugee Act, 1996 (as amended) recommending in each case that the applicant not be granted a declaration of refugee status. The applicant and his wife appealed to the Refugee Appeal Tribunal. Section 13(5) of the Act of 1996 applied to such appeals for the reasons set out below and accordingly such appeals are to be determined without an oral hearing.
On 27th February, 2004 the Tribunal affirmed the recommendation of the Commissioner that the applicant should not be declared to be a refugee. This decision was issued in reliance upon the decision of Mr. Eamonn M. Barnes, the Member of the Tribunal of 20th February, 2004. A similar decision was issued in respect of the applicant’s wife.
The applicant and his wife each commenced an application for leave to issue judicial review by a notice of motion dated 11th March, 2004. By order of the High Court (White J.) of 6th March, 2006, leave was granted in each set of proceedings to seek the reliefs set out in an amended statement of grounds dated 3rd March, 2006 upon the grounds set out therein.
Both sets of proceedings came on for hearing before me. It was agreed that the same issues arose in both sets of proceedings. Further, that the applications should be considered and determined by reference to the documents and facts expressly set out in these proceedings. The parties agreed that my decision in these proceedings would apply to and determine the proceedings brought by the applicant’s wife, [ ] (2004 No. 204 J.R.).
In the order granting leave, the Refugee Applications Commissioner was joined as a notice party and leave was granted to challenge the decision of the Commissioner reflected in the report issued under s. 13 of the Act of 1996 in January, 2004. At the commencement of the hearing I was informed by counsel for the applicant that he was not pursuing a challenge to the decision of the Commissioner and no relief was being sought against the Commissioner. The respondents had been informed of this position. Further, I was informed that certain of the other grounds were not being pursued. The relief and grounds pursued are those which follow.
The principal relief pursued is an order of certiorari of the decision of the Tribunal of 27th February, 2004 in reliance upon the decision of the Member of the Tribunal of 20th February, 2004. It is submitted that the Tribunal in determining the appeal acted in breach of the applicant’s right to have the appeal determined in accordance with the principles of constitutional and natural justice and fair procedures. It was also submitted that the Tribunal acted in breach of its obligations under s. 16(6)(e) of the Act of 1996. The alleged breach is the failure by the Tribunal to consider nineteen of twenty-nine documents submitted by the applicant in support of his application for a declaration of refugee status in the circumstances set out below.

Relevant background facts
The following are the facts as alleged and disclosed by the applicant. The applicant lived all his life in Romania until July, 2000 when he was obliged to leave for his personal safety. He was employed by Romanian Railways [ ] from approximately 1980 until 1997. By 1991 he had qualified as a locomotive driver. For reasons, partly of health, in 1994 he changed and worked as the manager of a railway station restaurant.
During his employment with [ ] the applicant became aware of significant corruption within the [ ] system and that the transport police, a separate section of the police force, used their positions of authority to extort money from various sections of the national railway. He experienced this as part of his work as manager of the railway restaurant from 1994.
Subsequent to the fall of the Ceauşescu regime he initially joined the National Liberal Party and then the Partidul România Mare (Greater Romania Party). One of the main aims of this party was to root out the corruption alleged to be endemic in Romanian life. The applicant was an active member of such party and spoke out against corruption. The applicant was an active member of the trade union movement and in 1996 founded a trade union for catering workers of the railway company.
In 1997 the [ ] decided to sell their restaurants through a franchise arrangement. The applicant purchased the lease of two such restaurants and employed certain former staff of the [ ] to work in the restaurants.
The applicant was then subjected to constant harassment from the transport police, including the instigation of complaints against him, the opening of a criminal file and the organisation of a media campaign against him. During this period of harassment he was informed that if he gave up his trade union membership, his political agitation and paid money to the police that his complaints would go away. The applicant made complaints about police corruption which he alleges were not investigated properly. In 2000 he threatened to complain to an international body outside of Romania. Shortly after that he was accosted by a policeman who pointed a gun at him and threatened that if he did not withdraw all his complaints, give up his trade union activities and political party that his family would be killed. Two days after this the applicant fled to Italy where he obtained leave to stay on humanitarian grounds for one year only. His wife and daughter joined him in Italy in October, 2000. Whilst in Italy he alleges that he became aware through the Romanian community where he was living that a Romanian policeman was making enquiries about him. He believes this to be the policeman who threatened him with a gun. His leave to stay in Italy was not renewed and he came with his wife and daughter to Ireland in September, 2002.

Application for refugee status
The applicant did not speak English when he arrived in Ireland. In December, 2002, he was introduced to Cusack McTiernan Solicitors by a client of theirs. Mr. Felix McTiernan, solicitor of that firm, in his affidavit states he was unable to see him until January, 2003. Thereafter he arranged at his expense to obtain the services of an interpreter and took detailed instructions from the applicant and assisted him in preparing an application for refugee status.
The applicant with the assistance of Mr. McTiernan completed the questionnaire issued by the Office of the Refugee Applications Commissioner (“ORAC”) on 25th April, 2003. The claim made is a fear of persecution from the transport police in Romania supported by the Ministry of Transport and the Ministry of the Interior. It is alleged that the reasons for which he had been persecuted are that, as leader of a trade union and a member of an opposition political party, he spoke out against corruption and refused to be part of it. The detailed information supplied in support of his claim included an eight-page detailed statement referred to as Schedule A and twenty-nine documents.
The information on the standard form questionnaire of ORAC envisages that documents would be submitted by an applicant. The instructions at paragraph 5 state “If you wish to rely on documentation you should provide this as early as possible”. Question 23 asks “Do you have any other documentation in support of your application?”. It then directs an applicant to list the documents submitted. In response to this question the applicant herein stated “see attached list”. Twenty-nine documents were listed in the attached list. All the documents were in Romanian.
The applicant was interviewed on behalf of the Commissioner in accordance with s. 11 of the Act of 1996. He was not asked any questions about the documents submitted. The documents had not been translated into English prior to the interview.
The printed questionnaire form contains the following statement on p. 22:

“All the information you provide in this questionnaire will be considered in arriving at a final decision on your application.

You should give as much detail as possible and be completely truthful in the information you provide.”

At p. 27 of the interview notes the member of ORAC who conducted the interview records:
“Applicant stated he feels this interview as very quick.

I have informed him not only will his interview be taken into consideration, but his questionnaire, 8 pg submitted & his documents submitted.”

(sic)

At p. 29 of the same interview notes the following comments of the applicant’s solicitor who was present are recorded:
“- Regarding Booklet of Documents.
- Had been in contact with ORAC for these to be translated.
- He was told by this office any relevant documents would be translated @ a later date.
- Solicitor feels all these documents are relevant to the applicants claim for Refugee Status.

- Solicitor has said he feels these documents should be translated if a decision is negative as they in our submission the content of these documents are relevant” (sic)
Prior to the preparation of the s. 13(1) report the list of twenty-nine documents and ten of the documents were translated into English. The remaining nineteen documents were not translated. The choice of documents to be translated was made by an official in ORAC.
The recommendation made under s. 13(1) was that the applicant should not be declared to be a refugee. In addition, findings were made under s. 13(6)(c), (d) and (e) of the Act of 1996. These were:

“Section 13(6)(c) that the applicant, without reasonable cause, failed to make an application as soon as reasonably practicable after arrival in the State.

Section 13(6)(d) the applicant had lodged a prior application for asylum in another state party to the Geneva Convention whether or not that application had been determined, granted or rejected.

Section 13(6)(e) the applicant is a national of, or has a right of residence in, a safe country of origin for the time being so designated by order under section 12(4).”

It is common case that, at the date of interview, Romania had been designated a safe country of origin pursuant to the Refugee Act, 1996 (Safe Countries of Origin) Order 2003 made pursuant to s. 12(4)(a) of the Act of 1996 as amended.
By reason of the findings under s. 13(6) of the Act of 1996 the provisions of s. 13(5) applied to the applicant’s right to appeal the recommendation to the Tribunal. This requires, inter alia, that the appeal be lodged within ten days of receipt of notice of the recommendation under s. 13(1) and that it be determined without an oral hearing.
A notice of appeal on the standard form provided by the Tribunal was completed on the applicant’s behalf by his solicitors. Such form again requests that all documents upon which the applicant proposes to rely be listed and it is stated that they must accompany the form. Whilst it is stated that documents which have already been supplied to the Commissioner will be made available directly to the Tribunal and there is no need to provide fresh copies, the applicant did specify “the twenty-nine documents submitted therewith”.
The solicitors for the applicant included with the notice of appeal a document headed “grounds of appeal”. In that document at paragraphs (2) and (3) they explained the manner in which the application for asylum had been prepared and the origin of the twenty-nine documents in the following terms:

“(2) This application is probably the best documented asylum application ever handled by the Firm of Cusack McTiernan, Solicitors. The Applicant’s application was lodged with the Office of the Refugee Applications Commissioner (ORAC) on the 25th April, 2003. The application comprised:

(i) The fully completed questionnaire for refugee status application.
(ii) An attached document referred to as Schedule A comprising eight type written A4 sized pages and providing a comprehensive account of the grounds upon which the Applicant was applying for asylum.
(iii) A list (in Romanian) of twenty-nine documents to support the Applicant’s application.
(iv) Copies of the twenty-nine documents (in Romanian) referred to in the above list.

(3) As Solicitors for the Applicant we requested ORAC to provide us with a english

(sic)

translation of the list referred to at (iii) above and the documents referred to at (iv). Our Client had a very limited knowledge of the english

(sic)

language. We had spent approximately three months meeting with the Applicant (and an interpreter paid for by ourselves) so that we could firstly, understand the background of the Applicant’s case and then extract from it the portions that we considered most relevant to the Applicant’s application for asylum. This was a very tedious, painstaking and time consuming process. The Applicant presented us with many documents and with the assistance of the Applicant and the Interpreter, we selected twenty-nine documents that we considered to be most relevant. Neither the Applicant or ourselves have the resources to translate the documents.”

They then make a number of submissions in relation to the failure of ORAC to either translate all twenty-nine documents or provide the solicitors for the applicant with those documents and the failure to interview the applicant in relation to the documents. At paragraph (9) of the grounds of appeal they then made the following submission:

“…It is submitted that this appeal cannot be properly considered until, firstly, all of the twenty-nine documents have been translated into english

(sic)

and, secondly, they are provided to the Applicant and his Legal Advisors in such a manner so that the translation of each document can be identified with its Romanian version and, if thought necessary, written submissions made thereon. …”

The appeal was determined by the Tribunal without a translation of the further nineteen documents and without any further communication with the applicant or his solicitors in relation to the documents.
The letter of 27th February, 2004 from the Tribunal informing the applicant of the decision made states that such decision was reached having considered, inter alia

“All documents, representations in writing and other information submitted to the Refugee Applications Commissioner in connection with your case which have been previously furnished to you or your legal representative.”

Notwithstanding this statement, it is common case that the content of the untranslated nineteen documents was not considered by the Member of the Tribunal who determined the appeal. The only information available to the Tribunal Member was the description of such documents in the translated list of the documents. The Tribunal Member expressly refers to other documents submitted and took them into account.
The Tribunal Member is obliged pursuant to s. 16(16A) of the Act of 1996 to affirm the recommendation of the Commissioner unless he is satisfied, having considered the matters referred to in s. 16(16), that the applicant is a refugee. Further, in accordance with s. 11A(3) the onus is on the applicant to show that he is a refugee. The Tribunal Member in his decision was not satisfied that the applicant had discharged such onus of proof. He stated that he was not satisfied on the basis of a reasonable likelihood, having considered the matters referred to in s. 16(16) that the applicant is a refugee within the meaning of s. 2 and accordingly pursuant to s. 16(16A) that the recommendation of the Commissioner should be affirmed.
There is no reference in the decision to the nineteen untranslated documents.

The law
The Tribunal, in deciding an appeal under s. 16 of the Act of 1996, is expressly required by the provisions of sub-s. (16) to consider the matters set out therein. This includes at para. (e):

“Any documents, representations in writing or other information furnished to the Commissioner pursuant to s. 11.”

It is common case that the twenty-nine documents submitted with the questionnaire are documents furnished to the Commissioner pursuant to s. 11. Prima facie the Tribunal is obliged by statute to consider such documents prior to deciding an appeal. At least nineteen of those documents were not considered by the Tribunal prior to deciding the appeal.
Counsel for the respondent submits, correctly in my view that s. 16(16)(e) of the Act of 1996 should not be construed literally so as to require a Tribunal Member in all circumstances to consider the content of every document furnished by an applicant to the Commissioner pursuant to section 11. To take an extreme example, if an applicant furnished with an application to the Commissioner two boxes of unscheduled and unidentified documents then it would be absurd to construe the obligation of the Tribunal Member under s.16(16) of the Act of 1996 as necessarily requiring him to consider all such documents prior to reaching a decision on the appeal. The obligation might be altered for example by inquiries made by the Commissioner or the Tribunal Member of the applicant seeking to establish what the applicant contended to be the relevance of the documents.
Factually this application is quite different. The application was prepared with the assistance of a solicitor. Twenty-nine documents were identified as relevant and listed. No inquiries were made by ORAC at interview or otherwise as to why the applicant contended the documents were relevant. The solicitors for the applicant in the grounds of appeal referred again to the relevance of the documents and to the necessity of those documents being translated and considered for the purposes of the appeal.

Conclusion
Construing s.16(16)(e) of the Act of 1996 in accordance with the statutory scheme and the intent that the Tribunal determine an appeal in accordance with the principles of constitutional justice including fair procedures, I have concluded that on the facts herein the Tribunal Member determined the appeal in breach of s. 16(16)(e) and the applicant’s right to fair procedures. The section must mean that the Tribunal may not ignore the content of nineteen documents furnished to the Commissioner pursuant to s. 11 in circumstances where the applicant both in his application to the Commissioner and again in his grounds of appeal to the Tribunal has asserted the relevance of the documents and no further inquiries were made of him as to the basis of such assertion.
Counsel for the respondent submitted that even if I concluded that the appeal had been determined in breach of s. 16(16)(e) of the Act of 1996 by reason of the failure to translate and to consider the nineteen documents that the court should not grant to the applicant an order of certiorari as the applicant had not established before this court the relevance of some or all of the nineteen documents to his claim for a declaration of refugee status.
On the facts of this application, having regard to the procedure before the Commissioner, the notice of appeal and the decision of the Tribunal Member it does not appear to me that the applicant should be required to establish the relevance of the documents before this court before being granted an order of certiorari. The statutory scheme established by the Act of 1996 envisages that the merits of the application be considered by the Commissioner and the Tribunal. It may be that where an applicant furnishes as many as twenty-nine documents in a language other than English that the Commissioner is entitled, in the course of the interview of the applicant or elsewhere, to have the applicant establish the prima facie relevance of the individual documents to his application for asylum before being necessarily obliged to incur the expense of translating all the documents for the purpose of their consideration as part of the applicant’s claim. If in the course of the interview the applicant had been asked questions directed to the relevance of these documents and the Commissioner did not translate certain documents by reference to the explanations given then factually the position would be quite different.
Similarly when the appeal was considered by the Tribunal Member, notwithstanding that the applicant had no right to an oral hearing, it would have been possible for the Tribunal pursuant to s. 16(6) to request the Commissioner to make further inquiries for the purpose of determining the appeal. Such inquiries could have included inquiries as to the relevance contended for by the applicant of the untranslated nineteen documents.
On the facts of this case, the failure of the Tribunal to consider the nineteen untranslated documents was not by reason of any determination by the Tribunal that such documents were not relevant to a consideration of the applicant’s claim for a declaration of refugee status. If that had been the basis of the failure to consider and the applicant had been given either before the Commissioner or before the Tribunal an opportunity of explaining the relevance of the individual documents then the position would be factually quite different and there could be considerable merit to this submission of counsel for the respondent.
The applicant is entitled to have his appeal determined in accordance with fair procedures and the scheme established by the Act of 1996 including s.16(16)(e). As this has not been done he is entitled to an order of certiorari and the matter to be remitted to the Tribunal for determination by another member in accordance with law.

Relief
There will be an order of certiorari of the decision of the Tribunal of the 27th February, 2004 and of the decision of the Tribunal Member of the 20th February, 2004.
.