High Court of Ireland Decisions
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Cite as: [2015] IEHC 60
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Judgment
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Neutral Citation: [2015] IEHC 60 THE HIGH COURT JUDICIAL REVIEW [2011 No. 316 J.R.] IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED) IN THE MATTER OF THE IMMIGRATION ACT 1999 IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 SECTION 3 (1) BETWEEN B.Y. (NIGERIA) APPLICANT AND
REFUGEE APPEALS TRIBUNAL MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM ATTORNEY GENERAL IRELAND RESPONDENTS JUDGMENT of Ms. Justice Stewart delivered on the 5th day of February, 2015 1. This matter was heard on the 14th day of November, 2014, by way of a ‘telescoped’ application for leave to apply for judicial review together with the substantive leave sought. 2. The applicant seeks an order of certiorari by way of an application for judicial review quashing the decision of the first named respondent to affirm the recommendation of the Refugee Applications Commissioner and notified to the applicant by letter dated the 7th April, 2011. The applicant further seeks an order remitting the appeal of the applicant for determination de novo by a separate member of the Refugee Appeals Tribunal (RAT). BACKGROUND 4. She completed an ASY1 form on the 26th November, 2010, and on the 6th November, 2010, she completed the application for refugee status questionnaire. 5. On the 27th day of January, 2011, she was interviewed pursuant to s.11 of the Refugee Act 1996 (as amended). The interview was conducted in English. 6. By letter in writing dated the 7th February, 2011, she was advised by ORAC that the recommendation was that she should not be declared to be a refugee and a s.13(1) report, pursuant to the Refugee Act 1996 (as amended), was included with the said letter. 7. The report concluded that the applicant had not established a well-founded fear of persecution as required by the s.2 of the Refugee Act 1996 (as amended). The report found, pursuant to s.13(6) of the Refugee Act 1996 (as amended), that the applicant had not sufficiently displayed over the course of the s.11 interview that she was a serving police officer in the city of Akure as claimed. 8. The Commissioner further found that the applicant had no supporting knowledge of a significant criminal event in that area of Nigeria with links to the police station she stated she had been affiliated to and had no documentation to support her contention that the events described in the questionnaire actually occurred. 9. Having regard to the these findings, s.13(6)(b) of the Refugee Act 1996 (as amended) applied to this application; the effect of such was that any proposed appeal, by the applicant in respect of the Commissioner’s findings, to the tribunal, would be by way of a paper review only. 10. The Commissioner found that the applicant made statements or provided information in support of the application of such a false, contradictory, misleading or incomplete nature as to lead to the conclusion that the application is manifestly unfounded. 11. By letter dated the 1st March, 2011, the applicant’s solicitors wrote to the office of the Refugee Appeals Tribunal (RAT) enclosing a form 2 (notice of appeal) and submissions in respect of the appeal, addressing the matters on which the Commissioner had found against the applicant. 12. A letter in writing, which was undated, was sent to the applicant together with a copy of the decision of the tribunal member dated the 1st day of April, 2011. 13. The tribunal member affirmed the recommendation of the Refugee Applications Commissioner, which was to deny the applicant her application for refugee status. 14. It is against the findings of the tribunal member that these judicial review proceedings were commenced. SUBMISSIONS OF THE PARTIES 16. Mr. Conlon S.C., on behalf of the applicant, submitted that under s.13 of the 1996 Act (as amended) there is a provision for an appeal to be made on the papers but permits this in limited and prescribed circumstances. 17. Section 13 (5) of the Refugee Act 1996 (as amended) provides as follows:
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 10 working days from the sending of the notice, and that any such appeal will be determined without an oral hearing.”
(a) that the application showed either no basis or a minimal basis for the contention that the applicant is a refugee; (b) that the applicant made statements or provided information in support of the application of such a false, contradictory, misleading or incomplete nature as to lead to the conclusion that the application is manifestly unfounded; (c) that the applicant, without reasonable cause, failed to make an application as soon as reasonably practicable after arrival in the State; (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); or (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).” 20. Counsel for the applicant opened at length to the Court the decision of Mr. Justice Cooke in the case of S.U.N. (South Africa) v. Refugee Applications Commissioner, the Minister for Justice, Equality and Law Reform and Attorney General [2012] IEHC 338, which was delivered on the 30th March, 2012, 21. It is accepted and apparent that the decision in the case before Mr. Justice Cooke was pertinent to subs.13(6)(e), i.e. the applicant is a national or has a right of residence in a safe country of origin for the time being so designated by order under s.12(4). However, the judgment does consider the problem presented to courts in relation to findings of credibility when the appeal is conducted by way of a paper review only. 22. Mr. Conlon S.C. identified two grounds in which the Commissioner found against the applicant, namely as follows:
(b) That the Commissioner made an adverse finding in relation to her knowledge, and the extent of that knowledge, of a robbery that took place in or about Akore in Nigeria. 24. In relation to the second ground he submits that this was not addressed at all in the report of the tribunal member notwithstanding that it was raised in detail in the notice of appeal and the applicant further contends that the Commissioner, in the s.11 interview, misrepresented the newspaper report about the robbery in question. He further pointed out that s.16 (16) of the Act requires the tribunal member to consider the notice of appeal and complains that the tribunal member does not appear to deal with this matter in any way. 25. On this basis, he says that the second ground of reasoning in relation to the Commissioner’s finding is also flawed. 26. He then contends that the tribunal member then went on to make credibility findings against the applicant which were not confined to the s.13 (6)(b) findings that the Commissioner had given. Thus, a fortiori, he submits that a problem arises when making a finding that is not related to the reasoning in the s.13(6)(b) decision. He submits that the tribunal member accepted that she was a Nigerian police woman and failed to deal with the inaccurate way the details of the robbery were put to the applicant at the interview and, on that basis, the applicant submits that it is not open to the RAT to base the judgement on a lack of credibility. The applicant submits that this raises question marks over the decision of the tribunal member. 27. Ms Sinead McGrath B.L., in response, maintains that this ground advanced by Mr. Conlon at the hearing was not pleaded and was not adverted to in the legal submissions. While I accept that it may not have been pleaded in the precise terms advanced before the Court at the hearing, it seems to me, having gone through the papers in detail, and the amended written submissions of the applicant, that it was clear that a main component part of the complaint in relation to the RAT decision was the lack of an oral hearing afforded to the applicant and that, notwithstanding her absence from the appeal process, adverse credibility findings were made against her which differed from those made by the Commissioner. 28. Ms. McGrath contends that no complaint was made at any stage in relation to s.13(6)(b) and that there was no application made to amend the proceedings or attempt to serve a notice of motion to bring about same and that this ground should fail on that reason. 29. I do not accept this contention and I think this ground for complaint is properly before the Court and I propose to deal with the matter on that basis. FINDINGS 31. It is accepted on behalf of the applicants that the legislation and the procedures applied for allow for a paper-only appeal when certain specific findings are made by the Commissioner. The question of a paper-only appeal was considered by Ms. Justice H. Clark in V.M. (Kenya) v. Refugee Appeals Tribunal & Ors [2013] IEHC 24. That case concerned a finding pursuant to s (13)(6)(a) of the Refugee Act 1996 (as amended) and, therefore, involved a paper-only appeal to the RAT. At para.21 of her judgment Ms. Justice Clark states as follows:
32. It is accepted that the applicant being heard does not necessarily entail her being present at the appeal hearing. However, if the tribunal member is to effectively ignore and/ or abandon the findings made by the Commissioner and upon which the s.13(6)(b) decision was arrived at and then proceed to make further adverse credibility findings in respect of the applicant, it seems to me that natural and constitutional justice, fair procedure and audi alteram partem require that the applicant should be afforded the right to be heard and/or have an input into the process prior to the matter being determined. 33. For the reasons as set out above I would grant leave and I propose to grant an order of certiorari quashing the decision of the tribunal member made on the 1st day of April, 2011, and I will further make an order remitting the appeal of the applicant for a determination de novo by a different member of the Refugee Appeals Tribunal. 34. Clearly the applicant remains bound by the s.13(6)(b) finding and is confined to a paper-only appeal. It is not for this Court to direct the RAT as to how it should deal with the practicalities of the rehearing. It is a matter for the RAT to devise a mechanism to facilitate the applicant in having her views heard on the issues of concern to the tribunal member. |
