High Court of Ireland Decisions
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Judgment
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Neutral Citation: [2014] IEHC 567 THE HIGH COURT JUDICIAL REVIEW [2011 No. 794 J.R.] BETWEEN/ U.P. APPLICANT AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE REFUGEE APPLICATIONS COMMISSIONER, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS AND
THE HUMAN RIGHTS COMMISSION NOTICE PARTY JUDGMENT of Mr. Justice Barr delivered the 26thday of November, 2014 1. This is a telescoped application by way of judicial review seeking, inter alia, an order of certiorari quashing the recommendation of the Office of the Refugee Applications Commissioner (“ORAC”), dated 13th July, 2011, that the applicant not be declared a refugee; or, alternatively, an order of certiorari quashing ORAC’s recommendation, only insofar as it makes a finding pursuant to s. 13(6)(c) of the Refugee Act 1996, as amended, in respect of the applicant. 2. Section 13(5) of the Act of 1996 provides:
(a) the notice under paragraph (b) of subsection (4) shall, notwithstanding that subsection, state that the applicant may appeal to the Tribunal under section 16 against the recommendation within ten working days from the sending of the notice, and that any such appeal will be determined without an oral hearing.
[...] (c) that the applicant, without reasonable cause, failed to make an application as soon as reasonably practicable after arrival in the State. Background 6. The basis of his asylum claim is that he fears persecution at the hands of religious extremists due to his conversion in 2008 from the Sunni faith to the Shia faith. The applicant claimed that when he returned to Pakistan in July 2009, his conversion was discovered. He stated that his family reacted badly. He claims that they took his passport, beat him, and locked him in a room. He stated that he was assaulted and warned by religious extremists that he would be killed if he did not convert back to the Sunni faith. The applicant claims that his aunt retrieved his passport and helped him to escape back to Ireland in September 2009, where he continued his studies. 7. Following his asylum application on 7th April, 2011, the applicant had a s. 11 interview with ORAC. In its s. 13(1) report, ORAC recommended that the applicant not be declared a refugee. The Commissioner did not find the applicant’s subjective testimony to be credible and considered that the applicant’s delay of almost a year and a half in applying for asylum, after the occurrence of the alleged persecution in the summer of 2009, undermined his credibility. The Commissioner therefore made a finding under s. 13(6)(c), as a result of which the applicant’s appeal will be on papers only. 8. The applicant instituted these proceedings seeking leave to challenge the Commissioner’s recommendation by way of judicial review on 31st August, 2011. The respondents brought a motion to dismiss the applicant’s case, which was heard by Mac Eochaidh J. on 24th January, 2014. While most of the applicant’s grounds were either abandoned or dismissed at that stage, he was permitted to proceed on the two grounds set out below:
(ii) No consideration was given to the explanation offered by the applicant for his failure to apply for asylum immediately upon his arrival in the State and the applicant was given an inadequate opportunity to address this issue. No reason is given for the second respondent’s failure to accept the reasonableness of the applicant’s cause for making the application for asylum when he did and his failure to make the application earlier. 9. The applicant was issued with ORAC’s decision by letter dated 5th August, 2011, which he received on 8th August, 2011.However, he did not institute these proceedings until 31st August, 2011.This was outside the statutory time limit laid down by s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000, which provided that proceedings had to be instituted,
12. The Court is satisfied that the applicant acted promptly when he received ORAC’s recommendation on 8th August, 2011. Given that this was during the vacation period, it is entirely understandable that it would take longer for the applicant’s legal representatives to have the necessary papers drafted. Indeed, in this case, the applicant’s lawyers acted promptly in having the papers drafted by 29th August, 2011; and the applicant attended at the offices of his solicitor the following day for the purpose of swearing the required affidavit. 13. In the circumstances, I am satisfied that there is good and sufficient reason for extending the time for the institution of these proceedings up to and including 2nd September, 2011, being the date on which the Notice of Motion was lodged in the Central Office of the High Court. The ORAC decision
The applicant failed to apply for asylum in Ireland on his return in September 2009 and only applied in April 2011, over a year and a half later. The applicant’s permission to remain in Ireland expired on 30th March, 2011, just a week before the applicant applied for asylum. (See passport). A genuine refugee would be expected to apply for asylum at the earliest opportunity. The applicant did not. When asked why he delayed in applying, the applicant replied “actually, I was making my mind up about the asylum process. I wanted to make up my mind and find out about the asylum process.” (Page 14, Question 68). The applicant added at read-back “it was me making up my mind. I want to say, there is a friend told me that my family and extremists are still looking for me. He came back in the middle of March. Then it took one week and I made up my mind and got some information. He told me after a week of arriving back in Ireland.” (Clarification Sheet, Question 68). However, considering the applicant claims to have fled Pakistan in fear of his life after being imprisoned, beat, threatened and having to escape in 2009, his claim as to why he delayed in applying for protection is not credible. This further undermines the applicant’s credibility and the reliability of his evidence. Taking the above discussion into account, the applicant’s account of having the troubles he claims in Pakistan as a result of converting from Sunni to Shia are not credible. 16. ORAC additionally made a finding pursuant to s. 13(6)(c) in respect of the applicant. The Commissioner’s reasons for so doing are stated as follows:
Ground I: The Section 13(6)(c) finding is disproportionate in depriving the applicant of an oral appeal 19. The applicant submitted that this finding is irreversible unless quashed. The applicant further submitted that the making of a s. 13(6) finding on the part of ORAC is discretionary and that ORAC was not obliged make such a finding. The applicant contended that in cases that revolve around the personal credibility of the applicant it is disproportionate, unreasonable, and irrational to deny an applicant the opportunity of personally convincing the Tribunal member that he is credible. 20. The applicant submitted that ORAC found against him for two reasons. The first reason is that, in ORAC’s view, if the applicant’s account of the persecution he claims to have suffered in Pakistan in the summer of 2009, when his religious conversion became known, were true, then he would have been killed. Counsel for the applicant stated that this reason can only relate to the applicant’s personal credibility. 21. The applicant submitted that the second reason ORAC rejected his case is that, in the view of the Commissioner, if he had been a genuine refugee he would have applied for asylum sooner. The applicant submitted that his explanation about the timing of his asylum application was not accepted by ORAC as being reasonable. The applicant argued that this is again an issue of truthfulness or credibility. 22. The applicant submitted that case law demonstrates that where ORAC’s recommendation relies upon findings as to the personal credibility or truthfulness of the applicant, then a recommendation disentitling him to an oral hearing on appeal can be set aside. The applicant submitted that since the recommendation in this case is one which has as its foundation an assessment of his personal credibility, this can only be effectively appealed against by the opportunity of having that personal credibility tested again by way of an oral hearing. The applicant further points out that his claim is not one which has been deemed to be “manifestly unfounded” or one which “showed either no basis or a minimal basis for the contention that the applicant is a refugee” as per s. 13(6)(a) of the Act of 1996. 23. The applicant submitted that there is already a statutory presumption in place to the effect that the applicant is not a refugee, and the combination of this presumption, together with the credibility findings made by ORAC and the non-oral hearing, will render him effectively unable to achieve a positive result on a papers only appeal to the RAT. In this regard the applicant drew the court’s attention to statistics, which he says are indicative of his limited chance of success on appeal without an oral hearing. In 2010, 99% of non-oral appeals resulted in refusals; 98% were refused in 2011; and 100% of non-oral appeals were rejected by the RAT in 2012. The applicant notes that, in contrast, the refusal rate in 2012 for appeals with oral hearings was 90%. He therefore submitted that the availability of an oral hearing will greatly increase his chances of success. 24. The applicant accepted that the availability of judicial review in respect of decisions of ORAC is strictly limited. In B.N.N. v. Minister for Justice, Equality and Law Reform [2008] IEHC 308, Hedigan J. had the following to say on this issue, at paras. 45-48 of his judgment:
[...] [46] By way of example, I would note that a clear and compelling case that an injustice at the Office of the Refugee Applications Commissioner is incapable of being remedied on appeal to the Refugee Appeals Tribunal might be demonstrated where the Office of the Refugee Applications Commissioner officer's findings include one or more of the findings specified in s. 13(6) of the Refugee Act 1996... [...] As noted by Clarke J. in Moyosola v. Refugee Applications Commissioner [2005] IEHC 218, (Unreported, High Court, Clarke J., 23rd June, 2005) at p. 6, "[t]he combined effect of s. 13(5) and 13(6) is to impose significant limitations on the extent of the appeal that will be available to an applicant to the Refugee Appeals Tribunal". For that reason, an injustice complained of may be incapable of being remedied on appeal and this may constitute one of the rare and limited circumstances where the applicant may be entitled to judicial review of an Office of the Refugee Applications Commissioner decision. [48] The court is of the view that the existence of a statutory right of appeal to the Refugee Appeals Tribunal - with the exception of cases where s. 13(5) and 13(6) of the Act of 1996 apply - is a fundamental reason not to grant judicial review. This court should not intervene until the statutory asylum process has been completed. To do otherwise would be to usurp the authority that has been granted to the Refugee Appeals Tribunal by the Oireachtas. The Oireachtas has put in place a process that aims to ensure that asylum applications are decided upon with all due expedition. The purpose of this process will necessarily be defeated if each and every applicant can issue judicial review proceedings before the process has been exhausted. 26. In support of this contention, the applicant opened the Supreme Court’s decision in V.Z. v. Minister for Justice, Equality and Law Reform [2002] 1 IR 139. The applicant in that case, Mr. Z., claimed that if returned to Russia he would face persecution on account of his Jewish origins and former membership of a Communist party. ORAC found his asylum application to be manifestly unfounded; on appeal, this decision was affirmed by the RAT. Mr. Z. then sought to bring judicial review proceedings in respect of the failure of the respondents to allow him an oral appeal before the RAT, which he said infringed his constitutional right to fair procedures. 27. In the High Court, Finnegan J. refused the reliefs sought and his decision was appealed to the Supreme Court. There were two main issues on appeal: (a) whether the finding that the applicant’s asylum claim was manifestly unfounded was unreasonable; and (b) whether natural and constitutional justice required an opportunity for an oral hearing on appeal. While the Supreme Court accepted that the finding that the applicant had not shown “any grounds” for his claim for asylum was unreasonable, his case nevertheless failed because it was not related to a “fear of persecution” and because there was insufficient evidence to support his claim. The Supreme Court further held that the applicant had already had an oral hearing at first instance before ORAC, and this, coupled with his paper based appeal to the RAT, was sufficient to vindicate his constitutional right to be heard. 28. The applicant in the instant case argued that his case is different to that of Mr. Z in that ORAC did not find that his claim was manifestly unfounded. The applicant submitted that, in circumstances where he had demonstrated a claim which had merit, and where the rationale behind the recommendation to refuse the applicant refugee status was one which had, at its heart, the Commissioner’s assessment of the applicant’s credibility, the Commissioner’s decision to deny the applicant an oral hearing was disproportionate. 29. In this regard, the applicant referred to Chen v. Minister for Justice, Equality and Law Reform [2010] IEHC 148, where Cooke J. stated at para. 37:
31. The applicant also referred to S(P)(a minor) v. ORAC [2009] IEHC 295 where Cooke J. held:
33. In reply, the respondent referred to the ex tempore judgment of Birmingham J. in Konadu v. Refugee Applications Commissioner (Unreported, High Court, 11th April, 2008) where the learned judge stated at para 1.18:
37. Hogan J. held that in assessing whether the Commissioner’s decision was disproportionate, it was necessary to ask whether the applicant’s case would be unfairly hindered on appeal without an oral hearing. The learned judge observed that while oral argument undoubtedly forms the backbone of the common law system of advocacy, it cannot be said that a purely papers based appeal in itself is necessarily unfair. Having quoted from the judgment of McGuinness J. in V.Z. v. Minister for Justice, Equality and Law Reform [2002] 1 IR 139 at p. 161, Hogan J. held at para. 10:
40. Finally, the respondent took issue with what she characterised as the applicant’s cherry picking of statistics relating to chances of success on a papers only appeal to the RAT. The respondent further submitted that in citing those statistics, the applicant mistook the function of this court which, in the respondent’s submission, is not to second guess the applicant’s chances of succeeding before the RAT based on selective statistics, but rather to review the impugned decision for illegality. 41. The court is satisfied that this is a case where it is appropriate to permit the applicant to seek certiorari of ORAC’s decision, rather than pursue the statutory appeal to the RAT. This is due to the fact that the finding made pursuant to s. 13(6)(c) of the Refugee Act 1996, as amended, has the effect of denying the applicant an oral hearing before the RAT. Where there negative credibility findings made against the applicant, the loss of the right to an oral hearing is a serious matter and would put the applicant in a very disadvantageous position in relation to his appeal. In these circumstances, it is appropriate to permit the applicant to proceed with his application seeking certiorari of ORAC’s decision. 42. In this case, ORAC found against the applicant primarily for two reasons: first, on the ground that if the applicant’s account were true, then he would have been killed when the extremists came to him in August 2009; and secondly, on the ground that if he were genuinely in fear when he fled from Pakistan, he would have sought asylum on arrival in Ireland, rather than continue with his studies and apply for asylum a year and a half later in April 2011. Both of these grounds turn on the credibility of the applicant, rather than on some other freestanding evidence, such as country of origin information. 43. The applicant has submitted that when the rationale behind the recommendation to refuse the applicant refugee status had at its heart the Commissioner’s assessment of the applicant’s credibility, the Commissioner’s decision to make a finding pursuant to s. 13(6)(c) so as to deny the applicant an oral hearing, was unreasonable and disproportionate. 44. The applicant submitted that there was already a statutory presumption in place to the effect that the applicant was not a refugee, and it was asserted that the combination of this presumption together with the credibility findings made by ORAC and the non-oral hearing on appeal, will render him effectively unable to achieve a positive result on his appeal to the RAT. 45. The court is satisfied that given the entirety of the case made by the applicant, in circumstances where the applicant’s personal credibility was in issue, it was disproportionate and unreasonable to make a finding under s. 13(6)(c). ORAC did not consider whether the applicant - without reasonable cause - failed to make an application as soon as reasonably practicable after arrival in the State. For reasons that are set out later in this judgment, I am of the view that ORAC failed to properly analyse the applicant’s explanation for not seeking asylum sooner. In these circumstances, ORAC acted unreasonably and disproportionately in making the findings which led to his loosing the right to an oral hearing on appeal. On this ground, the decision of ORAC will have to be quashed. Ground II - that ORAC failed to consider the applicant’s explanation for his failure to apply for asylum when he returned from Pakistan in September 2009. 47. In determining whether ORAC properly considered the applicant’s explanation for his delay in seeking asylum, it is necessary to have regard to the applicant’s testimony on this matter during his s. 11 interview. It is recorded as follows:
A. At that time, my family was also involved in these clashes. I don’t want to be separate from them. I wanted to go back to them. I wanted them to accept me. I thought this issue would resolve itself. One of my friends visited Pakistan saying your family are still there and have the same thinking about you and want to kill you. That is why I made up my mind now.
A. Actually, I was making up my mind about the asylum process. I wanted to make up my mind and find out about the asylum process.
52. In his affidavit submitted to the court in the present proceedings, the applicant sought to add to his explanation for not seeking asylum in Ireland sooner. He stated, at para. 5:
54. Because the affidavit was sworn on 30th August, 2011, which was subsequent to the making of the ORAC decision, it did not form part of the material before ORAC. Accordingly, the Court is of the view that it cannot now be relied upon as a means of attacking the Commissioner’s decision. 55. In its decision, ORAC found that the applicant’s explanation as to why he delayed seeking asylum in the State was not credible. ORAC did not engage with the reason given by the applicant in his s. 11 interview. ORAC quoted the reason given by the applicant in answer to Q. 68 and the clarification thereto in the interview, which were to the effect that he had not made up his mind about the asylum process. He only made up his mind at some time towards the end of March 2011, when a friend told him that his family and the extremists were still looking for him. 56. This answer has to be seen in light of an earlier answer given by the applicant to Q. 60, quoted above, which stated that he hoped that his family would accept him. 57. Taking the two answers together it would appear that the applicant’s case was that he came back to Ireland on a valid student visa. At that time, he hoped that he would be able to mend relations with his family in Pakistan. He hoped that they would accept him and, in the months that followed, he was making up his mind whether to seek asylum in Ireland. It would appear that his hope of reconciliation with his family was extinguished when his friend returned from Pakistan in March 2011 and told him that his family and the religious extremists were still looking for him. It was at that stage, upon the expiry of his student visa, that he decided to seek asylum. He obtained some information on asylum and made the application on 7th April, 2011. 58. ORAC did not carry out any analysis of this account, nor did it say why it was found not credible. In the circumstances, the applicant’s account required clear reasons to be stated by ORAC as to why it was not accepting the account as credible. ORAC failed to give this account proper consideration. For this reason, the decision will have to be quashed. 59. Accordingly, I will make an order in the terms of para. 2 of the Notice of Motion dated 31st August, 2011, and grant certiorari of the recommendation of the ORAC dated 13th July, 2011. |
