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Cite as: [2008] IEHC 214, [2009] 1 IR 146

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Neutral Citation: [2008] IEHC 214

THE HIGH COURT

2006 636 JR

BETWEEN

J. N.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM and ELIZABETH O'BRIEN, SITTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

EX TEMPORE JUDGMENT OF MR. JUSTICE BIRMINGHAM delivered on the 4^thday of June 2008.

The applicant in this case was, on 22^nd February, 2008, granted leave by McKechnie J. to seek judicial review of a decision of the Refugee Appeals Tribunal ("RAT"). This is a case to which section 5 of the Illegal Immigrants Trafficking Act applies. Accordingly, in granting leave, McKechnie J. was concluding that there were substantial grounds for contending that the RAT decision in question was invalid. As it happens, no additional information has been put before the Court since leave was granted so today we have had, essentially, a re-argument of the issues that were already fully argued before McKechnie J.

The Factual Background

The applicant in this case states that she is a Ugandan national who came to this country on 16^th July, 2005. Thereafter, an application for asylum was submitted. She was interviewed in relation to the claim on 23^rd August, 2005 and, on 2^nd September, 2005, the Office of the Refugee Applications Commissioner ("ORAC") issued a recommendation that the applicant not be declared a refugee. I pause to say that the recommendation/decision is a very careful one involving a close analysis of issues relating to credibility.

From this unfavourable decision, the applicant appealed. An oral hearing was originally scheduled for November 2005 but the listing was adjourned to 5^th January, 2006. It seems that this adjournment was at the request of the applicant's legal advisors. The Tribunal Member to whom the case was assigned issued her decision on 3^rd May, 2006, which affirmed the recommendation of ORAC that the applicant not be declared to be a refugee.

The circumstances in which that decision is now challenged are as follows. Central to the applicant's claim for asylum was that she was a political activist in Uganda. Arising from her political activities she suffered ill-treatment, including rape at the hands of agents of the Government. In particular, it was said that she was a member or certainly a supporter of the Forum for Democratic Change. She has not been entirely consistent as to her precise role with that organisation and that she was also in an organisation known as the Women's Action for Development group ("WAD"). In the case of this organisation, she was claiming to have worked for them as an employee over a pretty extended period.

In an impressively argued decision, the Tribunal Member concluded that the account that was being advanced was not credible. Of particular significance is the fact that she was not satisfied that the applicant had the level of involvement claimed with the WAD. Indeed, it is clear from the decision that the Tribunal Member is deeply sceptical about the existence of that organisation.

It is also clear from the decision of the Tribunal that there are quite a large number of areas where the applicant was found was not to be credible. However, it is equally clear that core or central to the applicant's claim, to use the language of the decision itself, was the claim of the applicant that she was an activist of WAD. The Tribunal Member was unable to accept this proposition. The particular relevance of this in the context of the present challenge is that the applicant travelled to Ireland along with a companion, Miss K, who also claimed asylum. It does not seem to be in doubt that Miss K was also claiming to have been a member of WAD, and to have been politically active alongside the applicant. A claim for asylum by Miss K was successful in that ORAC recommended that she be declared a refugee. This recommendation issued on 15^th December, 2005. While I have not seen the recommendation in Miss K's case, both counsel were of the view that it wasn't necessary that I should do so. It seems beyond doubt that the authorised ORAC officer in that case must have accepted that WAD existed and that Miss K had an active involvement with it.

At the oral hearing on 5^th January, 2006, the counsel who was then appearing, who is not the same counsel who appears in these judicial review proceedings, sought to refer to the favourable outcome of Miss K's application, which was seen as a related case. However, the Tribunal Member declined to permit submissions or indeed, as far as I gather, any reference to the Miss K case. Apparently this was because of concerns on the Tribunal Member's part that this would raise issues relating to the entitlement to confidentiality that Miss K enjoyed. There is at least a hint, and perhaps more than that, that the Member was urged to refuse the application by the Presenting Officer on the basis that both he and the Tribunal Member were taken by surprise. If this was a factor, I would have thought that it could have been dealt with by the Tribunal Member adjourning the hearing for a very short time, perhaps an hour or two. That counsel would have been keenly interested in a favourable decision in a linked case - I don't use that word in any technical sense - must be entirely obvious. It is almost inconceivable that counsel would not have wished to rely on such a decision and would not have wished to refer to it.

I am of the view that the Tribunal Member erred in refusing to permit submissions. If submissions were permitted, then it would, of course, be entirely for the Tribunal Member to decide what weight should be attached to them. I can see no reason why it would not have been open to the Member to reject the reasoning of the earlier decision or perhaps more likely to distinguish the cases, perhaps on the basis that there were factors specific to the applicant's case that were not present in the earlier case. That stage was never reached, however, because counsel was prevented -wrongly, in my view - from making her arguments.

Having been refused permission to make submissions at the RAT oral hearing, the applicant's legal advisors sought to change tack and to have the case re-opened so that Miss K could give evidence. Again, it must be said that the relevance of the potential evidence is obvious. In a situation where the very existence of an organisation was in dispute, it is hard to imagine evidence more centrally relevant than the evidence of a witness who would say that she was a member of that very organisation along with the applicant. Again, it goes without saying that if the evidence was heard, the weight to be attached to it would be for the Tribunal Member and the Tribunal Member would, in my view, have been free to accept or to reject it, to act on it or to decline to act on it.

There followed, in the aftermath of the RAT oral hearing, an exchange of correspondence designed to achieve the reopening of the hearing. These efforts were unsuccessful. In refusing to re-open the case and allow Miss K be heard, the Tribunal would seem to have been influenced by the fact that any evidence Miss K had to give would have been known to the applicant and her advisors and would have been available to them before the hearing. In that regard that seems to me to be something of a counsel of perfection. The ORAC decision in Miss K's case became available only 15 working days before the RAT hearing. I think it is understandable that counsel would have taken the view that she could have dealt with the matter adequately through submissions and by referring to the earlier ORAC decision. Even if that could be regarded as a tactical error it would seem harsh to visit the consequences of that on the applicant.

In a situation where a decision of the Tribunal on a procedural point prevented the applicant's legal advisors presenting the appeal in the way they wished, I feel the Tribunal could have been more sympathetic to the difficulty in which the lawyers found themselves. It does seem to me that a Tribunal Member must enjoy very considerable flexibility in deciding whether to adjourn a case or to permit a case to be re-opened and further evidence heard. A court should, in my view, be very slow indeed to interfere with the exercise of that discretion. In that regard, I would respectfully agree with the approach of Smyth J. in the case of Mihalescu v. The Refugee Applications Commissioner& Anor (unreported, High Court, 25^th June, 2002). Like him, I would be alive to the possibility that applications for adjournments and re-opening might, in some circumstances, serve as a delaying tactic.

However, this was an unusual situation. Material was in existence which was clearly potentially relevant and the combined effect of Tribunal rulings precluded the applicant from relying on it. I believe that in that situation, there was a material unfairness in refusing to hear the evidence of Miss K. I have already said more than once that the Member would not have been obliged to accept the submissions made or to accept the evidence. As O'Leary J. pointed out in Fasakin v. The Refugee Appeals Tribunal & Anor [2005] IEHC 423, a decision maker is not bound to follow an earlier decision and each case will turn on its own facts.

It is very easy to imagine reasons why different conclusions would be arrived at in cases that seemed very similar or which were clearly linked in some fashion. However, that does not mean that the earlier decision does not have a clear relevance. The potential relevance of prior decisions emerges clearly from the High Court and Supreme Court decisions in Atanasov & Ors v. The Refugee Appeals Tribunal & Ors [2005] IEHC 237; [2006] IESC 52. The exchange of correspondence did not, as we have seen, result in the evidence of Miss K being received and the case re-opened. Instead, in the course of a letter on behalf of the RAT of 6^th April, this was stated:

"We note your assertion to the effect that the evidence of [Miss K] [a reference number is given] is relevant to the appellant's case since she is in a position to avouch for the appellant's position that she is in the WAD and FCD political organisations. We also note that you say that this evidence only became available in the last hour in circumstances where she received a positive recommendation from the RAC on 15^th December, 2005. Surely this witness was available prior to receipt of a positive recommendation. The fact that she received a positive recommendation does not alter her evidence. As you are aware each case stands on its own facts and merits and must be considered on its own facts and merits. The Tribunal has advised that she will review the decision in question and will take same into account insofar as same is considered to be relevant to Miss J. N.'s case".

In the event, the Tribunal Member dealt with the significance or otherwise of the earlier case as follows, at page 17 of her decision, in the penultimate paragraph:

"I also point out that the fact that the appellant's colleague received a positive recommendation from another Tribunal Member [that should, I think, be a reference to an authorised member of RAC] does not influence my decision in relation to the appellant's claim".

Mr McDonagh, senior counsel on behalf of the applicant, says that it is not clear from that whether the Member had read the earlier decision. I think there is force in that argument though my own inclination would be to interpret the combined letter from the Tribunal and the decision as indicating that the Tribunal Member did indeed read the decision. However, if she didn't, it would seem to me that there would have been an unfairness because the RAT correspondence - and that notwithstanding its somewhat conditional and qualified nature - would have led to an expectation that it would be considered.

If the earlier decision was read, then the treatment is criticised as inadequate and the complaint is made that no grounds for the conclusion are set out. In my view, there is merit in that criticism. Consistency is as desirable in the asylum system as it is in other areas of the legal world. While there may well be reasons why apparently like cases may be decided differently, where this happens fairness requires the decision-maker to identify where his or her point of departure was. No lengthy discursive judgment is required but an applicant should not be left perplexed as to why he or she failed, and someone else succeeded on the same facts. For this reason too - the lack of adequate reasons - I would be prepared to quash the decision.

I would simply add that in the course of his judgment at the leave stage, McKechnie J. was at pains to point out that the decision under challenge was a particularly careful and conscientious one, going on to point out that there were many other aspects of the account given by the applicant which brought her credibility into question. He concluded by expressing his reluctance to reach a negative view on a decision which, in its thoroughness and structure, appealed to him. For my part, I would, with respect, wholeheartedly endorse these views. However, the areas where I believe the Tribunal Member erred are so fundamental to the conclusion arrived at that it is not possible to ignore their significance and allow the other findings to stand.

Accordingly, it is my view that it is appropriate that this matter should be reconsidered by another member of the RAT, and in order to provide for that, I will make an order quashing the decision in question.

Approved: Birmingham J.