B.N.N. v Minister for Justice, Equality and Law Reform and Another

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 09 October 2008
• Neutral Citation: [2008] IEHC 308
• Docket Number: [2006 No. 1065 JR]
• Date: 09 October 2008

N (B N) v Min for Justice & Refugee Applications Commissioner

BETWEEN B.N.N. APPLICANT AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM and THE REFUGEE APPLICATIONS COMMISSIONER RESPONDENTS

[2008] IEHC 308

[No. 1065 J.R./2006]

THE HIGH COURT

IMMIGRATION

Asylum

Judicial review - Alternative remedy - Appeal - Decision of Refugee Appeals Commissioner - Existence of alternative remedy - Whether complaints capable of being dealt with on appeal - Whether judicial review appropriate remedy - Whether applicant demonstrated clear and compelling case that injustice done not capable of being remedied on appeal - Whether breach of fair procedures at initial stage per se entitled applicant to judicial review - Whether existence of statutory right of appeal fundamental reason not to grant judicial review - Whether court should intervene before statutory asylum process completed - Stefan v Minister for Justice [2001] 4 IR 203, State (Abenglen Properties Ltd) v Dublin Corporation [1984] IR 381, Kayode v Refugee Applications Commissioner [2005] IEHC 172 (Unrep, O'Leary J, 25/4/2005) and Z v Minister for Justice [2008] IEHC 36 (Unrep, McGovern J, 6/2/2008) considered - Fair procedures - Quality of decision rather than defective application of legal principles - Whether officer failed to specifically put relevant information to applicant - Audi alteram partem - Failure to call back applicant after interview - Anochie v Refugee Applications Commissioner [2008] IEHC 261 (Unrep, Birmingham J, 2/7/2008) followed; Idiakheua v Minister for Justice [2005] IEHC 150, (Unrep, Clarke J, 10/5/2005), Olatunji v Refugee Appeals Tribunal [2006] IEHC 113 (Unrep, Finlay Geoghegan J, 7/4/2006), Moyosola v Refugee Applications Commissioner [2005] IEHC 218, (Unrep, Clarke J, 23/5/2005), PS (a minor) v Minister for Justice [2008] IEHC 235, (Unrep, McMahon J, 11/7/2008) and DH v Refugee Applications Commissioner [2004] IEHC 95, (Unrep, Herbert J, 27/5/2004) considered - Whether assessment of credibility was flawed - Onus of proof on applicant - Whether decision makers best placed to make assessments as to credibility Imafu v Minister for Justice [2005] IEHC 416 (Unrep, Peart J, 9/12/2005), Bujari v Minister for Justice [2003] IEHC 18, (Unrep, Finlay Geoghegan J, 7/5/2003) and Banzuzi v Minister for Justice [2007] IEHC 2 (Unrep, Feeney J, 18/1/2007) considered - Factors to which decision maker is required to have regard when assessing the credibility of applicant - Ajoke v Refugee Applications Commissioner (Unrep, Hanna J, 30/5/2008) and Akpata v Refugee Applications Commissioner (Unrep, Birmingham J, 9/7/2008) considered - Refugee Act 1996 (No 17) , s 11B - Leave refused (2006/1065JR - Hedigan J - 9/10/2008) [2008] IEHC 308

NN (B) v Minister for Justice

Facts: The applicant, a national of the DRC, sought leave to challenge a refusal of a decision of the respondent. The applicant alleged that she had been tortured and abused for her political activities in Kinshasa. Negative credibility findings had been made by the respondent against her. The applicant alleged that inter alia that the respondent had failed to specifically put information to the applicant, that the assessment of credibility was flawed in that insufficient consideration had been give to s. 11 B of the Refugee Act 1996, as amended and that the respondent had failed to call the applicant back to give her an opportunity to comment on materials that contradicted her claim.

Held by Hedigan J. in refusing leave for judicial review, that there were no substantial grounds for contending that the decision of the respondent was invalid. Fair procedures had been accorded to the applicant. There was nothing unreasonable about the conclusions on credibility reached. The existence of a right of appeal was a fundamental reason not to grant judicial review.

Reporter: E.F.

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11B

IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 10.5.2005 2005/31/6357

OLATUNJI v REFUGEE APPEALS TRIBUNAL (TAIT) & MIN FOR JUSTICE UNREP FINLAY-GEOGHEGAN 7.4.2006 2006/46/9904

MOYOSOLA v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP CLARKE 23.6.2005 2005/40/8261

A (C) v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP BIRMINGHAM 2.7.2008 2008 IEHC 261

S (P) (A MINOR) v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP MCMAHON 11.7.2008 2008 IEHC 235

H (D) v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP HERBERT 27.5.2004 2004/20/4592

REFUGEE ACT 1996 S11B(b)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)

O'CONNOR v PRIVATE RESIDENTIAL TENANCIES BOARD UNREP HEDIGAN 25.6.2008 2008 IEHC 205

A (F) & A (B) v REFUGEE APPEALS TRIBUNAL & ORS UNREP PEART 27.7.2007 2007/1/188

AKUJOBI (A MINOR) & ANOR v MIN FOR JUSTICE UNREP MCMENAMIN 12.1.2007 2007/3/555

IMMIGRATION ACT 2003 S10

REFUGEE ACT 1996 S11(6)

IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005/31/6380

BUJARI v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP FINLAY-GEOGHEGAN 7.5.2003 2003/7/1414

BANZUZI v REFUGEE APPEALS TRIBUNAL & ORS UNREP FEENEY 18.1.2007 2006/6/977

REFUGEE ACT 1996 S13(6)

STEFAN v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY 2001 4 IR 203

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORPORATION 1984 IR 381

KAYODE v REFUGEE APPLICATIONS COMMISSIONER UNREP O'LEARY 25.4.2005 2005/33/6894

Z (A) v REFUGEE APPLICATIONS COMMISSIONER & MIN FOR JUSTICE UNREP HIGH MCGOVERN 6.2.2008 2008 IEHC 36

MCGOLDRICK v BORD PLEANALA 1997 1 IR 497

IMMIGRATION ACT 2003 S7(H)

REFUGEE ACT 1996 S13(5)

1 9th day of October, 2008

2 1. The applicant is a national of the Democratic Republic of the Congo ("DR Congo"). She is a Christian and a member of the Banyamulenge tribe. She has received a negative recommendation from the Office of the Refugee Applications Commissioner ("ORAC") and now seeks leave to challenge that recommendation by way of judicial review, on the basis that her interview with ORAC was flawed.

I. FACTUAL AND PROCEDURAL BACKGROUND

3 2. The applicant's claim for asylum was based on the following circumstances. She and her husband lived in Kinshasa. It appears that her husband was politically active in the DR Congo and experienced difficulties with the authorities. This led him to flee to Ireland, where he unsuccessfully sought asylum. The applicant remained in the DR Congo. For a year after her husband's flight, she stayed with a friend, but then returned to Kinshasa and applied for a job, posing as a single woman.

4 3. The applicant's evidence is that she worked at the Agence Nationale de Renseignements ("ANR") from February, 2004 to January, 2006, analysing national security reports. On a number of occasions, she passed confidential information to an adviser to Mr. Azarias Ruberwa, one of the four vice-presidents of the transitional government, concerning the ANR's inaction on security reports indicating that attacks were likely to be carried out upon the Banyamulenge community, of which both she and Mr. Ruberwa are members. Thereafter, in two attacks, many of the Banyamulenge community were killed. Mr. Ruberwa reacted vigorously and several members of the ANR were dismissed.

5 4. The applicant claims to have been arrested by the ANR on 31 ^st January, 2006, and thereafter interrogated, tortured and abused in a variety of ways at an ANR premises until she confessed to having passed on the information. She claims that she escaped from detention on 8 ^th March, 2006 and soon afterwards left the DR Congo, in fear of being charged with high treason and sentenced to death or life imprisonment. The applicant's children remain with their grandmother in the DR Congo.

6 5. The applicant appears to have travelled to Ireland in April, 2006 via Congo-Brazzaville and France. She applied for asylum in the ordinary way and was invited to an interview with an authorised ORAC officer on 6 ^th June, 2006. It is the procedure that was followed at that interview that is challenged in the present proceedings. In compliance with section 13 of the Refugee Act 1996, the ORAC officer produced a report on 11 ^th July, 2006. Negative credibility findings were drawn in the report, which set out the recommendation that the applicant should not be declared a refugee. Country of origin information that the officer relied on was appended to the report.

7 6. The applicant was notified of the ORAC recommendation on 19 ^th July, 2006. She lodged a Notice of Appeal to the Refugee Appeals Tribunal ("RAT") on 4 ^th August, 2006, requesting an oral hearing. The within proceedings were issued on 31 ^stAugust, 2006. It appears from the affidavit of Ms. Maura Herlihy of ORAC that the matters canvassed in the Notice of Appeal are broadly similar to the matters at issue in the present proceedings. This is relevant and I will return to it in due course.

II. THE SUBMISSIONS

8 7. As I have already noted, the applicant seeks leave to challenge the ORAC recommendation on the basis that the procedure at the ORAC interview was flawed. The applicant complains, in particular, of the following four flaws:-

9 i i. That the ORAC officer failed to specifically put relevant information to the applicant;

10 ii ii. That the ORAC officer's assessment of credibility was flawed;

11 iii iii. That the ORAC officer gave insufficient consideration to section 11B of the Refugee Act 1996 (as amended); and

12 iv iv. That the ORAC officer failed to call the applicant back to give her an opportunity to comment on materials that appeared to contradict her claim.

13 8. The first and second of the above are the primary bases on which this challenge is based. The applicant explains that the third and fourth, among a number of other subsidiary flaws, are merely unsatisfactory aspects of the interview that aggravated what she says are the primary, fundamental flaws. She claims...