High Court of Ireland Decisions

Judgment Title: L. -v- Refugee Appeals Tribunal & Anor

Neutral Citation: [2010] IEHC 408


High Court Record Number: 2008 1117 JR

Date of Delivery: 11/16/2010

Court: High Court

1. On 15th October, 2010, the Court gave its judgment on an application by the above named applicant for leave to seek judicial review of an appeal decision of the Tribunal of 16th September, 2008, which had affirmed a negative recommendation made upon his application for asylum by the Refugee Applications Commissioner. As appears from that judgment, the case turned upon two issues. First, there had been an admitted mistake in the Tribunal decision under appeal in that the text of the decision referred in several places to the applicant as having a “D.R. Congolese” nationality, and his country of origin as being “D.R. Congo”. The applicant was, in fact, a national of the other part of the former Belgian colony, the “Republic of Congo (Brazzaville)”. The second issue arose out of the fact that there had been an exceptional delay between the hearing of the appeal and the issue of the Tribunal decision which had occurred only after a threat of judicial review had been made. For the reasons set out in the judgment, the Court held that neither of these issues gave rise to a substantial ground justifying the grant of leave. The applicant now applies for a certificate for leave to appeal against the judgment in accordance with s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000.

2. As the basis of the application, two points of law are put forward as being of exceptional public importance as follows:

“(1) Whether the High Court, when determining an application for leave to apply for judicial review, may decline to follow an earlier High Court judgment on a substantive judicial review application, not on a finding that it was decided on a wrongful interpretation of the law, but on the basis that the earlier High Court judgment did not set out sufficient detail concerning the facts of the decision quashed:

(2) Whether a decision of the Refugee Appeals Tribunal that fails to name correctly the applicant’s country of origin is thereby invalid and liable to be quashed as containing an error on the face of the record.”

4. In moving the application, senior counsel for the applicant submitted that the first point of law proposed concerned the apparent departure in the judgment from an established practice of judicial comity whereby a judge of the High Court was required to follow an earlier judgment. This was so because, he argued, this Court had declined to follow the judgment of O’Donovan J. in A.B-M. v. MJELR and Others (Unreported, 23rd July, 2001), in which precisely the same error had occurred in a decision of the corresponding asylum appeals authority as regards the confusion between the two Congo states. Counsel laid particular emphasis on the fact that there is now a very large number of High Court judges and that there had been no pronouncement on the part of the Supreme Court giving guidance as to the circumstances in which individual members of that bench ought to regard themselves as bound by earlier judgments of the same court.

5. Flattered as any court will be at the suggestion that its judgment involves a point of law of exceptional public importance, this Court feels obliged to disappoint the expectations of the applicant by saying that it fears the present application is based upon a misunderstanding and (it is to be hoped,) a misreading of the judgment in question. In effect, the present application appears to be distracted by the coincidence of the particular mistake common to decisions considered in the cases, namely, that of confusing the names of the two now independent states, Democratic Republic of Congo and Republic of Congo (Brazzaville).

6. Contrary to the submission made, this Court did not intend to dissent from the approach of O’Donovan J. to the legal concept of “error on the face of the record”. The Court endeavoured, and had intended to distinguish, the particular circumstances of the present case from those which were before O’Donovan J. in the A.B-M. case so far as the Court was able to discern what those circumstances were from the text of the judgment. In effect, this Court felt that the deficiency in the RAT decision was attributable to a series of failures to proof-read the terminology of the Tribunal’s decision because, in a number of places, the state in question was correctly named and, more importantly, the underlying background facts and information had been correctly addressed. Secondly, the Court had pointed out that the error in question was an error of fact and, as such, could only lead to an error of law if it was material to the validity of the jurisdiction which was being exercised. It cannot, in the judgment of the Court, be said to be a point of law of exceptional public importance that an error on the face of the record must be an error of law, and that an error of fact will only satisfy that criterion if it leads to an error of law. This Court did not therefore refuse to follow any precedent of law which might be said to have been established by O’Donovan J. in the A.B-M. case: the Court endeavoured to apply the same law to the distinct factual features of the present case.

7. The second point of law proposed to be raised does not, in the judgment of the Court, qualify either as one of exceptional public importance which renders it necessary or desirable in the public interest that there be an appeal. The reason for so holding is to be found in the judgment in question. As is pointed at paragraph 14 of the Court’s judgment, the identity of the particular country of origin can indeed be “vital” to the validity of the determination of the asylum application because the Geneva Convention requirement of the refugee being “outside the country of nationality” by reason of a fear of persecution recognised by the Convention, is fundamental. But the primary consideration in this regard is the identity of the particular source of persecution claimed rather than the official designation of the state title in question. In the present case, the applicant’s country of origin was, in fact, correctly named in the Tribunal decision in some places, while being mistakenly designated in other places. The reality of the present case was, in the Court’s view, that such confusion as arose from the text of the decision was attributable to sloppy draughtsmanship and an absence of proof-reading of Tribunal decisions before they are signed and not to any substantive mistake in the examination of the asylum application.

8. For these reasons, the Court is satisfied that the present application does not fulfil the criteria required by s. 5(3)(a) of the Act of 2000, for the grant of a certificate of leave to appeal.

9. The application is rejected.