Atanasov and Others v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 07 July 2005
• Neutral Citation: [2005] IEHC 237
• Court: High Court
• Date: 07 July 2005

[2005] IEHC 237

THE HIGH COURT

[No. 572 JR/2004]

[No. 14JR/2005]

[No. 1087 JR/2004]

ATANASOV & ORS v REFUGEE APPEALS TRIBUNAL & ORS

JUDICAL REVIEW

IN THE MATTER OF THE REFUGEE ACT, 1996 AND THE IMMIGRATION

ACT, 1999

BETWEEN

PETAR PETROV ATANASOV

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL (TRIBUNAL MEMBER, AIDAN EAMES), CHAIRMAN OF THE REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENTS

BETWEEN

MASONGMEHI NJUAKEA FONTU

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

ATANASOV & ORS v REFUGEE APPEALS TRIBUNAL & ORS

HUMAN RIGHTS COMMISSION

NOTICE PARTY

BETWEEN

MOTUNDE ALABA OPESYITAN AND BUNMI ALABA OPESYITAN (A MINOR SUING BY HER MOTHER AND NEXT FRIEND MOTUNDE ALABA OPESYITAN) AND OLAYEMI ALABA OPESYITAN (A MINOR SUING BY HER MOTHER AND NEXT FRIEND MOTUNDE ALABA OPESYITAN) AND OLUWADAMILOLA ALABA OPESYITAN (A MINOR SUING BY HER MOTHER AND NEXT FRIEND MO TUNDE ALABA OPESYITAN) AND ENIOLA ALABA OPESYITAN (A MINOR SUING BY HER MOTHER AND NEXT FRIEND MO TUNDE ALABA OPESYITAN)

APPLICANTS

AND

THE REFUGEE APPEALS TRIBUNAL IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

REFUGEE ACT 1996 S7

IMMIGRATION ACT 1999

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S19

REFUGEE ACT 1996 S19(4A)

REFUGEE ACT 1996 S19(4A)(a)

REFUGEE ACT 1996 S19(2)

IMMIGRATION ACT 2003 S7(k)

REFUGEE ACT 1996 S16(7)

REFUGEE ACT 1996 S28(A)

REFUGEE ACT 1996 S28

REFUGEE ACT 1996 S7(A)

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360

MCFADDEN, STATE v GOVERNOR OF MOUNTJOY PRISON (NO 1) 1981 ILRM 113

WILLIAMS v ARMY PENSIONS BOARD 1983 IR 308 1983 ILRM 331

MCCONNELL v EASTERN HEALTH BOARD UNREP HAMILTON 1.6.1983 1986/7/1098

NOLAN v IRISH LAND CMSN 1981 IR 23

KIELY v MIN FOR SOCIAL WELFARE 1977 IR 267

GALLAGHER v REVENUE CMRS 1995 1 IR 65 1995 1 ILRM 250

FLANAGAN v UNIVERSITY COLLEGE DUBLIN 1988 IR 724

R v BOARD OF VISITORS OF HULL PRISON (NO 2) 1979 1 WLR 1041

RAIU & ORS v REFUGEE APPEALS TRIBUNAL & ORS UNREP SMYTH 25.4.2002 2002/23/6023

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S19(4)(a)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S19(4)(b)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 20032003 SCHED 2 PARA 16

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 20032003 SCHED 2 PARA 17

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 20032003 SCHED 2 PARA 18

SUNDAY TIMES v UK 1979 2 EHRR 245

CONSTITUTION ART 34.1

R LTD, IN RE 1989 ILRM 757 1989 IR 126

COMPANIES ACT 1963 S205

COMPANIES ACT 1963 S205(7)

IRISH TIMES v MURPHY 1998 1 IR 359 1997 2 ILRM 541

CONSTITUTION ART 34

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

KELLY THE IRISH CONSTITUTION 4ED 751

CAMPBELL & FELL v UNITED KINGDOM 1985 7 EHRR 165

LE COMPTE v BELGIUM 1983 4 EHRR 1

DIENNET v FRANCE 21 EHRR 554

PRETTO v ITALY 1983 6 EHRR 182

SUTTER v SWITZERLAND 1984 6 EHRR 272

BLACKSTONES COMMENTARIES ON THE LAWS OF ENGLAND (1809) VOL 1 PARA 69

MANZEKE v SECRETARY OF STATE FOR THE HOME DEPT 1997 IMM AR 524

BENNION ON STATUTORY INTERPRETATION 4ED 475-478

EAST DONEGAL CO-OP v AG 1970 IR 317

CONSTITUTION ART 40.3

IMMIGRATION:

Fair procedures

Access to previous decisions of tribunal - Statutory discretion - Asylum seekers - Refugee status - Appeal against refusal to grant refugee status -Whether applicants entitled to access to previous decisions of tribunal - Whether tribunal exercised statutory discretion lawfully - Whether applicants entitled to fair procedures - Whether applicants accorded fair procedures - The State (Gary McFadden) v Governor of Mountjoy Prison (No 1) [1981] ILRM 113; The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360; In re R Ltd [1989] IR 126 and Irish Times Ltd v Ireland [1998] 1 I.R. 359 followed - Refugee Act 1996 (No 17), ss 16, 19, 28 and 28A and sch 2 - Immigration Act 2003 (No 26), s 7 - European Convention on Human Rights 1950, article 6(1) - Access to previous decisions granted (2004/572JR, 2005/14JR & 2004/1087JR - MacMenamin J - 7/7/2005) [2005] IEHC 237

A (PP) v Refugees Appeals Tribunal

Facts: the applicants had applied for asylum in the state and had applied for, and been refused by the Refugee Appeals Tribunal, access to its previous decisions which they contended had a bearing on or were relevant or material decisions relating to their applications. They applied to quash, by way of judicial review, the said refusals, submitting that they were entitled to the respondent’s previous decisions as a matter of fair procedures as its hearings and decisions were not in public. The respondent asserted that there was no obligation to provide the decisions sought by reason of confidentiality provided for under section 19 of the Refugee Act 1996.

Held by MacMenamin J in declaring that the refusal of the respondent to make available to the applicants relevant decisions as requested was in breach of fair procedures and natural and constitutional justice pursuant to Article 40.3 of the Constitution and was an unlawful exercise of the discretion afforded under the Act of 2003, that decision makers engaged in the administration of law were obliged by virtue of the quasi-judicial nature of the proceedings to act in a judicial manner and administrative difficulties in affording fair procedures were not sufficient to obviate a duty to so provide. The constitutional right to fair procedures in a decision making process affecting a person’s rights extended to a requirement that relevant information, documentation and matter of evidence should be disclosed.

The law had to be adequately accessible to an applicant and the principles had to be formulated with sufficient precision to enable an applicant to cite them and assist the Tribunal in applying the law in a manner which was reasonably foreseeable. The fact that the respondent was the court of last appeal whose hearings and decisions were in private made it even more important.

That, in order to maintain conformity and consistency with regard to objective facts, decision makers and legal advisers to applicants should have regard to the respondent’s relevant prior decisions so as to be even handed in form as well as in content.

That section 19 (4)(A) of the Immigration Act 2003 vested in the chairman of the respondent a positive discretion which had to be exercised in a rational fashion to publish decisions which were of legal importance so as to ensure the legal principles were of precedential value.

Reporter: P.C.

1 Mr. Justice John MacMenamin dated the 7th day of July, 2005

2 These three judicial review proceedings were heard together by agreement of the parties on the 12 ^th and 13 ^th of May, 2005. They raise the same point, that is the entitlement of applicants seeking asylum in this jurisdiction to certain previous determinations made by the Refugee Appeals Tribunal. Such records and reports, they contend, would be of assistance to them in making their claim for refugee status.

The applicant in the first proceedings

3 The applicant, Petar Petrov Atanasov, is a Bulgarian national. He arrived in Ireland on 24 ^th March, 2000. He applied for refugee status on 27 ^th March of that year. He completed an application for a "refugee status questionnaire" and submitted it on 30 ^th March, 2000.

4 He asserts that he fled Bulgaria in fear of persecution and discrimination amounting to persecution by reason of sexual orientation and his membership of a particular social group comprising homosexuals in Bulgaria. He states that he had a relationship with a man whom he met in university whose family had political connections. This family disapproved in the strongest possible terms of the applicant's relationship with their son. They allegedly mounted an orchestrated campaign of attacks and violence against him and engaged in harassment of the applicant's sister. The applicant says he suffered significant injuries as a result of these attacks and was hospitalised on more than one occasion. He made complaints, both oral and written, to the police but received no adequate or appropriate protection. He asserts on this basis that the State of Bulgaria does not provide appropriate protection to members of his particular social group and that there is significant discrimination against homosexuals in Bulgarian society.

The applicant in the second proceedings

5 The applicant in the second named proceedings, Masongmehi Njuakea Fontu, is a national of Cameroon. Her date of birth is 6 ^th April, 1984. She states that on or about 20 ^th July, 2002, she arrived in Ireland and claimed asylum. She further states that on 1 ^st August, 2002, she completed an "asylum application questionnaire". On 11 ^th November, 2002, she was interviewed as part of that procedure, and on 9 ^th December of that year a report under s. 7 of the Refugee Act, 1996 was prepared. On 11 ^th December, 2002, a report under s. 13 of the Refugee Act was submitted. On 17 ^th December, 2002 a recommendation was made pursuant to these reports to refuse her application.

6 The applicant states that when she was fifteen years of age she was forced to marry a man she named as the chief of a village in Cameroon. She states that following her marriage this man raped her on several occasions. She contends that the chief's first wife whom she named, lived with her and acted as her mother. She states arrangements were made for the applicant to leave the village on 24 ^th December, 2001, in the company of that woman and the chief's son. She claims that she lived with the chief's son in a different town in the Cameroon until moving in with her current partner. She asserts that she left this town in Cameroon on 11 ^th July, 2001, and moved to Nigeria with her partner because the chief's son...