Badri v Refugee Applications Commissioner and Another
| Jurisdiction | Ireland |
| Judge | Ms. Justice Finlay Geoghegan |
| Judgment Date | 16 December 2005 |
| Neutral Citation | [2005] IEHC 452 |
| Court | High Court |
| Docket Number | [2004 No. |
| Date | 16 December 2005 |
[2005] IEHC 452
THE HIGH COURT
BETWEEN
AND
AND
REFUGEE ACT 1996 S11(2)
REFUGEE ACT 1996 S13(1)
REFUGEE ACT 1996 S11(1)
REFUGEE ACT 1996 S13(4)(d)
REFUGEE ACT 1996 S17(1)(a)
REFUGEE ACT 1996 S17(1)(e)
REFUGEE ACT 19961996 SCHED 1 PAR 9
UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS UNDER THE 1951 CONVENTION & THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES PAR 204
EDOBAR v RYAN 2005 2 ILRM 113
HOWARD v CMRS OF PUBLIC WORKS 1994 1 IR 101
REFUGEE ACT S21(1)(e)
Immigration - Asylum - Section 13 report - Suspension of consideration of Iraqi applications - Whether suspension ultra vires - Reconsideration or completion of report - Statutory scheme for consideration of applications for refugee status - Refugee Act 1996
The applicant was a national of Iraq and a medical doctor. He applied for judicial review seeking an order of certiorari of the decision of the Commissioner and other reliefs. The issues before the Court were whether a s. 13 report prepared and signed by a person on behalf of the Commissioner containing the findings of the Commissioner could be considered to contain a recommendation of the Commissioner that the applicant should be declared a refugee and whether the decision of the Commissioner to suspend consideration of applications from Iraqi nationals, including that from the applicant, was ultra vires and invalid.
Held by Finlay Geoghegan J. in granting reliefs sought that the decision to suspend consideration of applications from Iraqi nationals was ultra vires and invalid. The point reached in the statutory scheme on the consideration of the applicant's claim for refugee status when the ultra vires decision to suspend was made was that a s. 13 report had been prepared. There was no power for the Commissioner to reopen the investigation or go behind the findings in the s. 13 report. The applicant was entitled to have the s. 13 report completed by the making of a recommendation consistent with the findings in the report.
Reporter: R. W.
Ms. Justice Finlay Geoghegandelivered on the 16th day of December 2005.
By order of the High Court of the 13 th January, 2005, the applicant was granted leave to apply by way of judicial review for the reliefs set out at paragraph 4 (other that subparagraph(ix)) of the statement of grounds upon the grounds set forth at paragraph 5 therein. Notice of opposition dated the 14 th February, 2005, was delivered. At the commencement of the hearing, the Court was informed that the first named respondent ("the Commissioner") agrees that the applicant is entitled to the relief sought at paragraph 4 (viii) namely an order of certiorari of the decision of the Commissioner of the 19 th April, 2004. The other reliefs claimed are opposed.
The applicant is a national of Iraq and a medical doctor. He is a member of the Muslim Shia community. He arrived in Ireland with his wife and child on the 19 thSeptember, 2002, and applied for refugee status in the State. He completed the required ASY/1 form and application questionnaire on the 27 th September, 2002. He was interviewed by Mr. Charles McCarron, on behalf of the Commissioner on the 19 th February, 2003, and on 6 th March, 2003. The applicant claimed to have a well founded fear of persecution because of his political opinion if returned to Iraq. The applicant relied upon a number of specified incidents which took place in the hospital in Tikrit, in which he was working as a surgeon prior to leaving Iraq, in support of his claim.
The applicant states that around the 18 th March, 2003, he telephoned the office of the Commissioner and was informed that a decision on his application had been made on the 12 th March, 2003, and that the decision would be sent to him within 10 days. He did not receive this. He wrote a letter to the Commissioner on the 4 th April, 2003, as he describes it, "imploring" the Commissioner to send his decision to him. This was on the basis of the hard situation in which his family was living by reason of his inability to work and contributed to by his wife's ill health. In the meantime the invasion of Iraq had commenced on the 21 st March, 2003. The applicant received a formal acknowledgement of his letter of 4 th April, 2003, and was told that the contents had been noted.
The applicant appears, from this correspondence, to have learnt in the month of April from the member of the Commissioner's office who had interviewed his wife that all Iraqi cases had been suspended. He wrote again about the 5 th May, 2003, seeking to know what was happening in his case. He and his wife received a response dated the 19 th May, 2003, which in the operative parts stated:
"The Refugee Applications Commissioner has decided to hold, for the present, the determination of a number of applications relating to Iraqiapplicants, (including cases such as yours', where the interview has already been conducted, but where no final recommendation has been made). The rationale for this decision is that it is not possible to carry out meaningful analysis of individual claims in the current circumstances. The position is in line with the most recent advice from the United Nations High Commissioner for Refugees which essentially recommends suspension of individual determinations for the present. This Office cannot comment on any position taken by the Refugee Appeals Tribunal.
The delay in reaching a determination in relation to your case, and any distress caused by this delay, is sincerely regretted. The situation will be kept under review and a recommendation will be made in your case as soon as it is considered practical to resume determination of Iraqi applications."
In the meantime on the 9 th May, the Refugee Legal Service had written on the applicant's behalf seeking a copy of all documentation in relation to his application for asylum. On the 19 th May, 2003, the office of the Commissioner sent to the Refugee Legal Service a copy of the report pursuant to s. 11 (2) of the Refugee Act 1996(as amended) relating to the applicant and a copy of a document entitled "Pursuant to Section 13 (1) of the Refugee Act 1996(as amended) Report and Recommendation of the Refugee Applications Commissioner". This document is divided into three parts:
1. Results of investigation
2. Findings
3. Recommendation.
The first two parts of the document contain much detail and run to seven pages. At the end of the first two parts the document has been signed by Mr. Charles McCarron"For the Refugee Applications Commissioner" and is dated the 14 th March, 2003. In the third part of the document under the heading recommendation there is typed "I have read the file and pursuant to the provisions of Section 13 (1) of the Refugee Act 1996(as amended) I recommend that Mr. Ziad Al-Badri be declared a refugee". There is then a gap (intended it would appear for a signature) and underneath is typed the name Martin F. Grehan again "For the Refugee Applications Commissioner" and again dated the 14 th March, 2003.
Thereafter unsuccessful attempts were made by or on behalf of the applicant to have the Commissioner complete this report and forward it to the second named respondent under the provisions of the Act of 1996. On the 12 th September, 2003, the Refugee Legal Service made further submissions based on then current views being expressed by UNHCR.
Ultimately, by letter of the 26 th February, 2004, the applicant was informed that the Office of the Commissioner would shortly recommence processing applications from Iraqi nationals. He was told that if there was any additional information he wished to have considered as part of his application to forward it before Friday 5 th March, 2004. By letter dated the 22 nd April, 2004, he was informed that the Commissioner "is recommending that you should not be declared to be a refugee". Enclosed was a report pursuant to s. 13 (1) of the Refugee Act 1996(as amended). This document is in slightly different format to the earlier document. The first part of the document is divided into eight sections, the last of which is headed "Recommendation". It is then signed by a Ms. Maura Herlihy for the Refugee Applications Commissioner and dated the 19 th April, 2004. Under that signature there is then one further paragraph recommending that the applicant should not be declareda refugee and this is signed by a Mr. Chris Carroll also for the Refugee Applications Commissioner and also dated the 19 th April, 2004.
There was then further correspondence from the applicant and Refugee Legal Service to the office of the Commissioner. By letter of the 30 th April, 2004, written by Mr. Chris Carroll on behalf of the Commissioner the steps taken were explained in the following terms.
"It is regretted that a draft of the Report Pursuant to Section 13 (1) of the Refugee Act, 1996(as amended) was erroneously included in the documentation concerning your application forwarded to the Refugee Legal Service by this Office on 19 May, 2003. There was no recommendation to the Minister made by the Refugee Applications Commissioner at that stage.
Shortly after the compilation of this draft report the Commissioner took a decision, in line with UNCHR advice, to suspend processing of applications for asylum from Iraqi nationals because the rapidly evolving situation in that country had made meaningful analysis of applications unfeasible. Consequently, the finalisation of the Section 13 Report, setting out the Commissioner's...
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