C (XL) v Minister for Justice, Equality & Law Reform and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 10 February 2010
• Neutral Citation: [2010] IEHC 148
• Court: High Court
• Date: 10 February 2010

[2010] IEHC 148

THE HIGH COURT

[No. 1221 J.R./2007]

C (X L) v Min for Justice & Refugee Applications Commissioner

JUDICIAL REVIEW

BETWEEN/

X. L. C.

APPELLANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S15

K (A) v MIN FOR JUSTICE UNREP SUPREME 28.1.2009 (EX TEMPORE)

O (F) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP COOKE 26.6.2009 2009 IEHC 300

OLUNLOYO v MIN FOR JUSTICE & ANOR UNREP COOKE 6.11.2009 (EX TEMPORE)

REFUGEE ACT 1996 S13(6)(C)

REFUGEE ACT 1996 S13(5)

MOYOSOLA v REFUGEE APPLICATIONS CMSR & ORS UNREP CLARKE 23.6.2005 2005/40/8261 2005 IEHC 218

REFUGEE ACT 1996 S11

AJOKE v MIN FOR JUSTICE UNREP COOKE 30.4.2009 (EX TEMPORE)

I (GO) v REFUGEE APPLICATIONS CMSR UNREP COOKE 15.10.2009 2009 IEHC 463

REFUGEE ACT 1996 S17(1)

A (NA) v REFUGEE APPLICATIONS CMSR & REFUGEE APPEALS TRIBUNAL 2007 2 IR 787 2007/1/110 2007 IEHC 54

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5

REFUGEE ACT 1996 S16(6)

REFUGEE ACT 1996 S13(4)(A)

REFUGEE ACT 1996 S16(5)

REFUGEE ACT 1996 S16(8)

EEC DIR 2005/85 ART 39

REFUGEE ACT 1996 S13(6)

IMMIGRATION

Asylum

Judicial review - Leave - Commissioner's report - Circumstances where judicial review of Commissioner's report appropriate - Function of Commissioner and Tribunal - Role of Commissioner and Tribunal in asylum process - Applicant found lacking credibility - Appeal to Tribunal to be determined without hearing - Whether judicial review of Commissioner's report appropriate - (K)A v Minister for Justice, Equality and Law Reform (Unrep, SC, 28/1/2009) applied - (O)F v Minister for Justice, Equality and Law Reform [2009] IEHC 300 (Unrep, Cooke J, 26/2/2009) and O(BA)(A Minor) & Ors v Minister for Justice, Equality and Law Reform [2009] IEHC 499 (Unrep, Cooke J, 6/11/2009), A(RL) v Refugee Application Commissioner [2009] IEHC 216, (Unrep, Cooke J, 30/4/2009), A(NA) v Refugee Applications Commissioner [2007] IEHC 54, [2007] 2 IR 787 approved - and I(GO) v Minister for Justice, Equality and Law Reform [2009] IEHC 463, (Unrep, Cooke J, 15/10/2009) approved - M(SO) v Refugee Applications Commissioner [2005] IEHC 218, (Unrep, Clarke J, 23/6/2005) distinguished - Refugee Act 1996 (No 17), ss 11, 13, 15, 16 & 17 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 5 - Council Directive 2005/85/EC, art 39 - Leave refused (2007/1221JR - Cooke J - 10/2/2010) [2010] IEHC 148

C(XL) v Minister for Justice, Equality and Law Reform and Refugee Applications Commissioner

Facts: Leave was sought by the applicant, a Chinese national, for judicial review of a report and negative recommendation made by the respondent under s. 13 Refugee Act 1996, as amended in circumstances were an appeal to the Refugee Appeals Tribunal was lodged but left in abeyance pending the outcome lf the proceedings. The issue arose as to whether the Court could intervene by way of judicial review in advance of the completion of the examination of the asylum applicant by the conclusion of the pending appeal to the Tribunal. The applicant contested findings as to lack of credibility. The applicant arrived in Ireland in 2000 and lived and worked here without a work permit and applied for asylum in 2007. The appeal would be heard without an oral hearing.

Held by Cooke J. That the s. 13 report did not depend for its negative conclusion on any finding of a lack of credibility on the part of the applicant which would require to be revisited by oral testimony at an appeal hearing. The Court would refuse leave on the ground that an alternative remedy was appropriate and suitable and n the basis that no substantial ground was made out as to the illegality of the way in which the s. 13 report was compiled and the negative recommendation reached.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Cooke delivered on the 10th day of February, 2010.

2 1. This is a further case in which leave is sought to apply for judicial review of a report and negative recommendation made by the Refugee Applications Commissioner (R.A.C.) under s. 13 of the Refugee Act 1996 (as amended) in circumstances where an appeal to the Refugee Appeals Tribunal (R.A.T.) has been lodged but left in abeyance pending the outcome of the present proceeding.

3 2. The approach of these Courts to the issue as to the availability of a specific alternative remedy in the asylum process in the form of the appeal to the R.A.T. under s. 15 of the 1996 Act has now been made clear in a series of judgments delivered over the last eighteen months including notably that of the Supreme Court in the case of A.K. v. M.J.E.L.R. of 28 ^th January, 2009 (Unreported). This Court has endeavoured to summarise that position more briefly in cases such as F.O. v. M.J.E.L.R. & Anor. [2009] I.E.H.C. 300 and Olunloyo. v. M.J.E.L.R. & Anor (Unreported, High Court, Cooke J., 6 ^th November, 2009) in these terms:

"It is now settled law that, consistently with the scheme and the legislative intention of the 1996 Act, this Court should intervene to review a s. 13 report and recommendation in advance of a decision on appeal by the R.A.T., only in the rare and exceptional cases where it is necessary to do so in order to rectify a material illegality in the report; which is incapable of or unsuitable for rectification by the appeal; which will have continuing adverse consequences for the applicant independently of the appeal; or is such that if sought to be cured by the appeal, will have the effect that the issue or that some wrongly excluded evidence involved, will not be reheard but will be examined only for the first time on appeal."

4 3. Accordingly, the immediate issue before the Court on this application is whether its circumstances and the grounds proposed to be raised are such as bring it within the category of cases in which the Court will exercise its discretion to intervene by way of judicial review in advance of the completion of the examination of the asylum application by the conclusion of the pending appeal to the R.A.T.

5 4. Counsel for the applicant argues that it is such a case because the contested s. 13 report makes findings of lack of credibility against the applicant and contains in its final paragraph, 6, an express finding to the effect that s. 13 (6) (c) of the 1996 Act applies namely, that the applicant, "without reasonable cause, failed to make an application as soon as reasonably practicable after arrival in the State".

6 5. The applicant arrived in the State in 2000 and apparently lived and worked here without a work permit and only applied for asylum in 2007 when arrested and detained in prison. There can be no doubt, therefore, that the factual basis clearly existed which entitled the Commissioner to make that statutory finding and counsel for the applicant does not contend otherwise.

7 6. The consequence of that finding is that s. 13 (5) of the Act now operates to require that the pending appeal be determined by the Tribunal without an oral hearing. Paragraph (c) of subs. 6 is one of five findings which have this effect, the others being:

8 (a) The application showed either no basis or a minimal basis for the contention that the applicant is a refugee;

9 (c) The applicant made statements or provided information of such false, contradictory, misleading or incomplete nature as to lead to the conclusion that the application is manifestly unfounded;

10 (d) The applicant had applied for asylum previously in another State, a party to the Geneva Convention;

11 (e) The applicant is a national of or has a right of residence in a designated safe country of origin.

12 It is not disputed that the resulting exclusion of an oral hearing is mandatory so far as both the Commissioner and the Tribunal are concerned. The exclusion cannot be waived either by them or by the Minister.

13 7. It is this feature of the case which, it is submitted, entitles the applicant to seek and requires the Court to treat the case as one in which the challenge to the report should be entertained. It is argued that the report depends upon a finding of lack of credibility and the applicant is now deprived of an opportunity of persuading the decision-maker on appeal, the Tribunal member, to take a different view of his credibility by giving testimony in person. The case, it is said, is on all fours with that considered by Clarke J. in his judgment of 23 ^rd June, 2005, in Moyosola v. R.A.C. & Ors. [2005] I.E.H.C. 218).

14 8. Before considering these issues it is necessary to summarise briefly the factual and procedural background from which the present application arises.

15 9. The applicant is a Chinese national who claims to have fled China in 1998. He says he spent two years in France. In a s. 11 interview he said he had paid $10,000 for two years lodging and food in France and for travel to France but could not remember where he had lived during that period or the name of the town in question. He spoke no French and did not work there.

16 10. He says he came to Ireland not to claim asylum but to work and in the latter objective he was obviously successful having first worked in Cork and then in Carnew, Co. Wicklow where he now has a proprietary interest in the restaurant in which he was employed. He speaks no English.

17 11. When he claimed asylum the applicant maintained that if returned to China he would face a risk of arrest because in early 1998 he had distributed leaflets or flyers for the Falun Gong movement in his home area. In the s. 11 interview he said that he had never wanted to be in France but had been left there by the agent whom he had paid to arrange his travel. He wanted to get to Ireland because, before he left China, he had friends...