BS & RS v The Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne,Mr Justice Peter Charleton
• Judgment Date: 22 May 2019
• Neutral Citation: [2019] IESC 32
• Date: 22 May 2019
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2017:000111 Court of Appeal record number: 2016 no 446 [2017] IECA 179 High Court record number: 2015 no 433 JR [2016] IEHC 469

BETWEEN

B.S.

AND

R.S.

APPLICANTS/APPELLANTS

AND

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

AND

THE REFUGEE APPLICATIONS COMMISSIONER

NOTICE PARTY

[2019] IESC 32

Charleton J.

Dunne J.

Clarke C.J.

MacMenamin J.

Dunne J.

Charleton J.

Finlay Geoghegan J.

Supreme Court appeal number: S:AP:IE:2017:000111

[2019] IESC 032

Court of Appeal record number: 2016 no 446

[2017] IECA 179

High Court record number: 2015 no 433 JR

[2016] IEHC 469

An Chúirt Uachtarach

The Supreme Court

Immigration and asylum – Transfer order – Judicial review – Appellants seeking judicial review – Whether the office of the Refugee Applications Commissioner breached the requirements of Article 34(4) of the Dublin III Regulation

Facts: The appellants appealed to the Supreme Court from a decision of the Court of Appeal, Peart J, Birmingham J, Hogan J (dissenting), delivered on the 14th June, 2017. Peart J delivered the majority judgment of the Court in respect of an appeal against an order made in the High Court by Humphreys J of the 29th July, 2016 refusing reliefs sought by the appellants by way of judicial review. The principal relief sought by the appellants was an order of certiorari to quash the decision of the first respondent, the Refugee Appeals Tribunal, dated the 14th July, 2015. The decision of the Tribunal upheld a decision (the Transfer Order) of the office of the Refugee Applications Commissioner (ORAC) dated the 19th May, 2015 made pursuant to Article 12 of Regulation EU No. 604/2013 (the Dublin III Regulation). The decision reflected the opinion of ORAC that the United Kingdom was the Member State responsible for determining the application of the appellants for asylum. The consequence of the decision made by ORAC, which was subsequently upheld by the Tribunal, was that the appellants would be transferred to the United Kingdom for the purpose of assessing their applications for refugee status and that the State would not process their application for international protection given that the application should be made in the United Kingdom under the terms of the Dublin III Regulation. In a determination dated the 29th June, 2018, the Supreme Court granted leave to appeal to the appellants and in the course of case management, the legal issues to be addressed in the appeal were identified as follows: (1) whether ORAC breached the requirements of Article 34(4) of the Dublin III Regulation with respect to the obligations therein (or any of them) to send the relevant information requests, and in failing to set out the grounds on which the requests were based and state on what evidence, or on what specific and verifiable part of the appellants' statements they were based; (2) whether ORAC breached the requirement of Article 34(4) and Article 34(2) of the Dublin III Regulation in sending the fingerprints of the appellants to the United Kingdom with the relevant information requests; (3) whether, if any breach of the Dublin III Regulation occurred by reason of the manner in which the information requests were sent, such breaches are justiciable on appeal by reason of rights arising under Articles 27 or 34.9 of the said Regulation; (4) whether the Refugee Appeals Tribunal erred in law or fact in respect of its treatment of the question of whether ORAC complied with their obligations under Article 21 of the Dublin III Regulation to make "take charge" requests in respect of the appellants "as quickly as possible", and; (5) if so, what remedy, if any were the appellants entitled to, in particular, (a) were the appellants entitled to the erasure of any data, and (b) were the appellants entitled to have the determination of the responsible Member State to examine their application reached without regard to the information provided by the United Kingdom; and (6) insofar as the above questions gave rise to issues of European law, were they acte clair.

Held by Dunne J that no issue arose that required to be referred.

Dunne J held that the appeal would be dismissed.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton of Wednesday 22 May 2019

1 The applicants sought asylum in Ireland on 16 December 2014. The legislation referred to in this judgment has been largely replaced by the International Protection Act 2015. The relevant legislation for the purpose of this judgment is the Refugee Act 1996, along with the Dublin Convention (Implementation) Order 2000, SI 343 of 2000, which was, on the date that the transfer order was made, 19 May 2015, the operative national legislation for the transfer of an applicant for refugee status from Ireland to another country. This judgment gives reasons for concurrence with the principal judgment; that of Dunne J.

Implementing law

2 Naturally, the Dublin Convention Order was the first port of call for public servants working for the Office of the Refugee Applications Commissioner or for the Refugee Appeals Tribunal. This Order applies where an application has been made under section 8 of the Refugee Act 1996 for a declaration under section 17 of the Act. Article 6 of the Order delays any such transfer for a minimum period of five working days or for the entire duration of any appeal taken by an applicant. What this appeal has been about is the nature of the information that might be requested from another country which is party to the Dublin Regulation, now in its third iteration as Dublin III Regulation (EU) No 604/2013. Article 4(1) of the Order enables the Commissioner, and on appeal the Tribunal has equal powers, to ‘make or cause to be made such inquiries and, by notice in writing, request such information in relation to matters specified in the notice as is necessary or expedient for the purpose of making a determination’ under Article 3 as to whether an applicant should ‘be transferred to a convention country for examination’ as to whether an applicant qualifies for refugee status or should instead ‘be examined in the State.’

3 There is no legislative restriction on what might be asked under the terms of the Order and nor is there any limit as to whether an enquiry might be made of one or more countries. The only boundary is set at not moving outside Dublin Regulation countries. While the schedules to the 2000 Order set out a notice of possible transfer, a notice of determination to transfer and a notice of appeal, legal formalism has not intruded into the nature of the information sought or the manner in which any query may be raised: nor should it. Common to those three documents is the necessity to recite the name of the applicant, to give reasons for a transfer and, as regards the notice of appeal, for the appellant to specify their own name and address, nationality and their temporary residence certificate number. Under the Refugee Act 1996 (Application Form) Regulations, SI 345 of 2000, an applicant seeking refugee status must fill out a prescribed form which states under their signature that they ‘apply for a declaration as a refugee in Ireland’ and which requires them to specify: their family name and forename; their date of birth; their nationality; their country of birth; their address in their own country; the name of any spouse or partner and children; and their dates of birth. In this case, almost every such detail would be wrong through the applicants undermining their assertions as to who they were by providing a completely false name and address and by answering questions in the application form with misleading propositions. For instance, on their true identity becoming known in consequence of information being supplied by Great Britain, and on it emerging that they had obtained a visa for travel to that country in Warsaw in Poland, it was alleged by the applicants that an agent had organised their itinerary and that they were never present in that city and had never applied for any such visa. Yet, their fingerprints are on the relevant visa application form.

4 Section 11B of the Refugee Act 1996, as inserted by section 7(f) of the Immigration Act 2003, proposes that in assessing the credibility of a claim that an applicant was persecuted in their country of origin, and consequently has fled to Ireland, regard be had to their possession or not of identity documents, the account given of travel to Ireland, and whether ‘manifestly false evidence’ had been adduced in support of the asylum claim. In common with the principle, stated in, among other places, the United Nations Refugee Handbook, the process of application is in no way adversarial. As the Handbook provides, it is a two-stage fact-finding process: ‘Firstly, it is necessary to ascertain the relevant facts of the case. Secondly, the definitions in the 1951 Convention and the 1967 Protocol have to be applied to the facts thus ascertained.’; paragraph 29, United Nations Refugee Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees HCR/IP/4/Eng/REV 1 Reedited, Geneva, January 1992, UNHCR 1979. This is a collaborative process designed to find out the truth. That requires good faith on both sides. It is never a question of the applicant being on trial or the State parties attempting to catch people out. What is involved is an enquiry into reality. That is a bipartisan process which requires Ireland to, for instance, keep abreast of information on the country of origin of applicants in relation to persecution of minorities and, where subsidiary protection is sought, as to whether civil turmoil reigns in the place of an ordered society. International protection is given on the basis of a collaborative process between the applicant and the examining authorities. In that regard, the duty to cooperate cast on an applicant by section 11C of the Refugee Act 1996, as inserted by section 7(f) of the Immigration Act 2003 is...