B (v) v Refugee Appeals Tribunal (Zaidan)

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 13 July 2007
• Neutral Citation: [2007] IEHC 479
• Docket Number: No. 183 J.R./2006
• Court: High Court
• Date: 13 July 2007

[2007] IEHC 479

THE HIGH COURT

No. 183 J.R./2006

B (V) v Refugee Appeals Tribunal (Zaidan)

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING)

ACT, 2000,

AND THE REFUGEE ACT, 1996 AS AMENDED

AND IN THE MATTER OF THE APPLICATION FOR LEAVE TO APPLY

FOR JUDICIAL REVIEW

BETWEEN

V. B.

APPLICANT

AND

DES ZAIDAN ACTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

FIRST NOTICE PARTY

AND

ATTORNEY GENERAL AND IRELAND

SECOND NOTICE PARTY

ILLEGAL IMMIGRANTS (TRAFFICKING ACT) 2000 S5

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

MCNAMARA v BORD PLEANALA 1995 2 ILRM 125

O'KEEFFE v AN BORD PLEANALA 1993 1 IR 39

I (CO) v MIN JUSTICE UNREP MCGOVERN 2.3.2007 2007 IEH 180

SECRETARY OF STATE FOR THE HOME DEPARTMENT v WAIGANJO UNREP IMMIGRATION APPEALS TRIBUNAL 17.10.1997 (UK)

MESSAOUDI & EDOBOR v REFUGEE APPEALS TRIBUNAL & ORS UNREP FINLAY GEOGHEGAN 29.7.2004 2004/30/7084 2004 IEHC 156

CAMARA v MIN FOR JUSTICE UNREP KELLY 26.7.2000 2000/4/1247

ROMAN v REFUGEE APPEALS TRIBUNAL & ORS UNREP GILLIGAN 10.7.2003 2003/45/11102

MEMISHI v REFUGEE APPEALS TRIBUNAL & ORS UNREP PEART 25.6.2003 2003/35/8424 2004 IEHC 6

IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416

REFUGEE ACT 1996 S2

BAINDUE v MIN JUSTICE UNREP O'LEARY 28.2.2005 EX TEMPORE

Mr. Justice Birmingham

1 In this case the applicant seeks leave to apply for judicial review. The matter is one to which s. 5 of the Illegal Immigrants (Trafficking) Act,2000 applies. Accordingly it is necessary for the applicant to establish substantial grounds. In that context, I recall the observation of the Supreme Court in In Re Article 26 and theIllegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360, that the obligation was not an onerous one going on to cite with approval the judgment of Carroll J. in McNamara v. An Bórd Pleaná la (1) [1995] 2 I.L.R.M. who interpreted the phrase in the context of the Planning Acts as being equivalent to "reasonable", "arguable", "weighty" and that the grounds must "be trivial or tenuous".

2 The reliefs sought include a declaration that the rule of law governing the scope of judicial review set out in the case ofO'Keeffe v. An Bórd Pleanála [1993] 1 I.R. 39 is incompatible with the European Convention on Human Rights. While referred to in the Statement of Grounds this issue was not pursued in written submissions or oral argument. In touching on this issue the applicant is raising the question of whether a more exacting approach sometimes described as anxious scrutiny is appropriate in cases involving fundamental human rights. I am aware that this approach has been endorsed by McGovern J. in I. v. The Minister for Justice, Equality and Law Reform 2^nd March, 2007. That being so I have taken the view in other applications for leave that there are substantial grounds at a leave stage for contending that the standard is the exacting standard of anxious scrutiny and I have approached applications for leave as I do this one from that perspective.

3 I simply observe that the occasions when a different result would be achieved by applying the self discipline of anxious scrutiny will be few and far between. In cases where fundamental human rights are engaged our whole legal tradition requires the matter be approached with care and caution.

4 No less than twenty-five grounds appeared in the statement of grounds which range far and wide. However the written submissions are confined to criticising the approach of the Tribunal member to the issue of credibility. This issue was central to the oral arguments that were advanced on behalf of the applicants, though two other issues were raised; namely a delay that had occurred between the date of the Refugee Appeals Tribunal (RAT) hearing and the decision issuing and an alleged failure to adjudicate on the claim for asylum based on a well-founded fear of being persecuted by reason of race, religion and membership of a particular group.

5 The applicant, whose date of birth is 30^th December, 1975, states that he is a national of the Ivory Coast/Coté d'Ivoire and entered the State on the 30^th December, 2004 and subsequently made a claim for asylum. That claim was unsuccessful at first instance and indeed again on appeal to the Refugee Appeals Tribunal the decision of which is dated the 12^th January, 2006. The application form completed by the applicant indicates that he is a Muslim and a member of the Dioula ethnic group.

6 Central to the applicant's claim for asylum is that he states he was politically active in his home country as a member of the party of Republicans Rally Youth (J.R.D.R.) and in addition was a member of Movement of Alassene Demare Ouatlana's Unconditionals (M.I.A.D.O.). While he had a history of political activity, it does not appear that this gave rise to any difficulties for him until the 4^th November, 2004, a significant date in the recent history of the Ivory Coast. The applicant states that after afternoon prayers at the Mosque that day, he addressed a gathering of Dioula Youths and urged them to display solidarity and to oppose the government because Bouake, the second city in the country was under attack by government forces. He states that he had addressed similar gatherings previously without incident. However, on this occasion when that evening he was at home in the company of a younger brother, there was a knock on the door and the callers identified themselves as gendarmarie. While this was happening he hid in a shower where he had a hunting rifle with him. His brother objected to the gendarmarie entering the house without a warrant but was shot dead by them. When the applicant inadvertently made a noise this attracted attention to his presence. In these circumstances he discharged a shot and then managed to escape by exiting through a window.

7 Thereafter he contacted the leadership of his political party and they arranged for an individual to escort him to Ireland so that he could seek refuge.

8 In this case the oral hearing before Mr. Desmond Zaidan took place on 4^th October, 2005 and the decision of the Tribunal is dated the 12^th January, 2006. Having regard to this delay the applicant says that he is entitled to have the decision quashed as being unsafe and invalid. In his oral arguments Mr. Hugo Hynes, S.C emphasised the fact that the interval between hearing and decision exceeded three months.

9 This argument has its origin in a ruling of the U.K. Immigration Appeals Tribunal in the case ofSecretary of State for the Home Department v. Kenneth Waiganjo, (17^th October, 1997). In that case the Tribunal upheld an appeal brought by the Secretary of State against a determination of the special adjudicator. There was an interval exceeding six months between hearing and determination. However, that ruling must be seen in the context of the fact that shortly before the Tribunal determination, a memorandum had been distributed to all Tribunals indicating that subject to particular circumstances of the case, a delay in excess of three months between the date of hearing and the date of promulgation would be unacceptable. It is noteworthy, though that the Tribunal commented that if a contemporaneous record of findings in relation to credibility existed, that would be a different matter.

10 TheWaiganjo approach and other English cases on the topic, were considered by Finlay Geoghegan J. in Messaoudi v. The Refugee Appeals Tribunal, (29^th July, 2004). She analysed the English approach as being that the three month period is a rule of thumb which maybe useful but must always be subject to an assessment of the particular circumstances of an individual case. Here, the delay is just one week over the three month period. Moreover, the first draft of the decision was sent for typing on the 15^th day of November, 2005.

11 In these circumstances I do not regard the delay as being such as to require that the decision be quashed and the matter sent back for a new hearing. In that context I note that counsel for the applicant has not really been able to point to any inaccuracies in the recital of the facts in the decision which might tend to suggest that with the passage of time memory had blurred, though he does draw attention to the fact that the decision refers to "several gendermarie" having been at the applicant's home, whereas he states that the applicant's account was that there were two present.

12 When the applicant completed the initial questionnaire, he responded to Q. 29 as follows:-

"Question 29: What do you fear may happen to you or any of the people included in this application if you return to your country of origin? Please explain giving as much detail as possible. If you need more space please attach extra pages with the details and state the number of additional pages at question 40."

13 Answer: It is certain and I am convinced that they would kill me for the following reasons;

14 1. I am a Muslim. The Government wants to suppress this religion.

15 2. I am head of a branch of the J.R.D.R.; the President wants to be rid of the R.D.R.

16 3. A Dioula; the Dioula ethnic group is seen as a formentor of troubles.

17 4. I fired on a gendermarie; the gendarmerie would kill me if they can.

18 When completing the grounds of appeal at question 3(1) where the applicant is asked on what grounds he claims to have a well-founded fear of being persecuted and is asked to place an X against the list of grounds he places an X opposite, race, religion, membership of a particular social group and political opinion leaving blank only "nationality". It should be noted that when asked to undertake the same exercise in the application form, he had completed it in the same way.

19 Moreover, the body of the...