C.O.I. v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice McGovern
• Judgment Date: 02 March 2007
• Neutral Citation: [2007] IEHC 180
• Court: High Court
• Docket Number: [2005 No. 887 JR]
• Date: 02 March 2007

[2007] IEHC 180

THE HIGH COURT

[No. 887 JR/2005]

I (CO) v MIN FOR JUSTICE

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996, THE IMMIGRATION ACT, 1999

AND THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000

BETWEEN

C. O. I.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996

IMMIGRATION ACT 1999

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

REFUGEE ACT 1996 S17(7)

LADD v MARSHALL 1954 1 WLR 14890

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE ONIBIYO 1996 2 AER 901 1996 QB 768

C (KC) v MIN FOR JUSTICE UNREP MCGOVERN 2.3.2007 2007 IEHC 176

O'KEEFFE v BORD PLEANALA 1993 1 IR 63 1992 ILRM 237 1991 5 1137

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 43

FASAKIN v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP O'LEARY 21.12.2005 2005/25/5110 2005 IEHC 423

SHIRAZI v SECRETARY STATE FOR THE HOME DEPARTMENT 2004 2 AER 602 2004 INLR 92

DIKILU v MIN FOR JUSTICE & INTERIM REFUGEE APPEALS AUTHORITY UNREP FINLAY-GEOGHEGAN 2.7.2003 2003/12/2596

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 632

1 JUDGMENT of Mr. Justice McGovern delivered on the 2nd day of March, 2007

2 This judgment is circulated in redacted form to avoid identification of the parties

3 On the 12th May, 2006 the applicant was given leave to apply by way of application for judicial review for the reliefs set forth at paragraph 4 sub paragraphs (B, C, E, F, G, H and I) in the amended statement grounding the application for judicial review on the grounds set forth at paragraph 5 sub paragraphs (a), (b), (c), (d), (g), (h), (i), (j), (l) and (m).

4 The applicant is from the N. D. area of N. and claims to fear persecution in that country by reason of his race and political opinions. He arrived in Ireland on the 1st September, 2003 with his sister-in-law H.I. with whom he had resided as part of a family unit in N. They both applied for asylum simultaneously. Country of origin information established that the applicant's brother, M.I. and his family are missing following an attack by ethnic Militia in W. The applicant's brother is or was involved with the U.P.U. and the C.D.D. whose aims were the promotion of U. rights in W. Country of origin information suggest that M.I. and his family have been missing since a violent attack on his W. residence by Militia men.

5 The applicant and his sister-in-law both applied for asylum in this jurisdiction. The decision on the applicant's application for asylum was given before that of his sister-in-law.

6 The applicant arrived in Ireland on the 1st September, 2003 and made an application for refugee status. The Refugee Applications Commissioner (RAC) recommended that his application be refused and he was notified accordingly by letter of the 8th September, 2004. The applicant appealed to the Refugee Appeals Tribunal (RAT) but was unsuccessful. By letter dated 26th May, 2005 the applicant's legal representatives made an application seeking the permission of the respondent to make a further application for a declaration of refugee status pursuant to s. 17(7) of the Refugee Act, 1996. The application was made on the basis of fresh evidence directly relevant to the applicant's application for refugee status. The fresh evidence was the fact that the Refugee Appeals Tribunal made a decision in favour of the applicant's sister-in-law subsequent to the decision in the applicant's case. The facts relating to the two applications were almost identical. In his sister-in-law's case the RAT found that her evidence was supported by country of origin information and that the reasons for her fear of persecution are directly related to her husband's involvement with the U.P.U. and the C.D.D. whose aims were the promotion of U. rights in W. The Tribunal member accepted that the account presented by her was coherent, plausible and corroborated by newspaper articles to which she referred.

7 The applicant has two main complaints against the respondent. The first is the failure of the respondent to apply the correct test in considering the s. 17(7) application. The second is the respondent's failure to provide for consistency in the decision making process.

THE TEST TO BE APPLIED

8 The applicant sought the Minister's consent to make a further application on the grounds that his sister-in-law's application based on almost identical circumstances had been allowed and was found to be credible on the basis of objective country of origin information. By letter dated the 21st July, 2005 the Minister refused the applicant's request. The letter contained, inter alia, the following passages:-

"It has been noted that in your letter you refer to the successful outcome of a relatives application. It should be borne in mind that each asylum application is assessed on its own individual merits and, consequently, comparisons cannot be accepted as having relevance."

"Having examined the submissions made, in support of this request and the earlier recommendations of the Refugee Applications Commissioner and the Refugee Appeals Tribunal it was decided that the new evidence submitted does not significantly add to the likelihood of the applicant qualifying for asylum on the totality of the evidence already available and considered."

9 It is submitted by the applicant that the respondent applied an incorrect test when considering the application under s. 17(7). Reliance is placed on Ladd v. Marshall [1954] 1 W.L.R 1489 where Denning L.J. at page 1491 set out the following principles:-

"To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: First it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumed to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."

10 In the case of R v. Home Secretary Ex-Parte Onibiyo [1996] Q.B. 768 Bingham M.R. stated with regard to a fresh or second application for asylum:-

"The asset test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect but a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim."

11 In this application the applicant claims that by making reference to whether the fresh evidence "significantly adds to the likelihood" of the applicant qualifying for asylum he has erred in law in the test to be applied.

12 In my judgment in the case of Kingloo Chia [2006] 201 J.R. also given on this date (the two matters having been heard together) I stated:-

"The preamble to the Refugee Act, 1996 describes it, inter alia, as "AN ACT TO GIVE EFFECT TO THE CONVENTION RELATING TO THE STATUS OF REFUGEES DONE AT GENEVA ON THE 28TH DAY OF JULY, 1951, THE PROTOCOL RELATING TO THE STATUS OF REFUGEES DONE AT NEW YORK ON THE 31ST DAY OF JANUARY, 1967, AND THE CONVENTION DETERMINING THE STATE RESPONSIBLE FOR EXAMINING APPLICATIONS FOR ASYLUM LODGED IN ONE OF THE MEMBER STATES OF THE EUROPEAN COMMUNITIES DONE AT DUBLIN ON THE 15TH DAY OF JUNE, 1990...AND TO PROVIDE FOR MATTERS RELATED TO THE MATTERS AFORESAID."

13 In E.M.S. v. The Minister for Justice, Equality and Law Reform (Unreported Judgment, Clarke J. 21st December, 2004) at page 5 of the judgment the learned judge stated "there is a potential difficulty in applying the jurisprudence of the Course of the United Kingdom in refugee matters to the Irish situation having regard to the difference in the manner in which the respective jurisdictions have legislated for the protection of those seeking refugee status."

14 There is no equivalent provision in the United Kingdom legislation to s. 17(7) and the United Kingdom has introduced the Geneva Convention directly into domestic law in a manner not done by the Refugee Act, 1996. However it seems to be me to be clear from the preamble to the 1996 Act that the State in seeking to give effect to the Geneva Convention and other conventions mentioned therein assumes certain obligations and accepts the application of these conventions to the treatment of refugees save and insofar as the 1996 Act and subsequent legislation imposes controls on the manner in which the convention is implemented in this jurisdiction. In the E.M.S judgment Clarke J. stated "I am nonetheless satisfied that there are substantial arguable grounds for taking the view that the relevant jurisprudence of the United Kingdom Courts would be followed in this jurisdiction." He was referring to decisions in English law relating to the manner in which a fresh claim by an asylum seeker should be entertained....