Croitroriu v The Refugee Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 21 June 2005 |
| Neutral Citation | [2005] IEHC 476 |
| Court | High Court |
| Docket Number | 81 J.R./2004 |
BETWEEN
AND
[2005] IEHC 476
THE HIGH COURT
Immigration - Asylum - Judicial review - Fair procedures - Assessment of credibility - Material factors to be taken into account - Country of origin information - Whether material factor taken into account - Whether substantial grounds for granting leave to seek judicial review - Immigration Act 2000, section 5
the applicant was refused asylum by the Refugee Applications Commissioner. His solicitors lodged a notice of appeal of the said decision with the respondent without prejudice to his right to judicially review the decision of the Refugee Applications Commissioner. Shortly thereafter, he did in fact institute judicial review proceedings against the Refugee Applications Commissioner on the grounds that the Commissioner refused to adjourn his interview and that certain documents which were posted from Romania were not before the Commissioner at the time of the said decision and that he was prevented from having legal representation thereat. The respondent proceeded to determine the said appeal whilst the judicial review proceedings against the Commissioner were extant. The applicant contended that the respondent was on constructive notice of the said judicial review proceedings and should have deferred its decision on the appeal until they had been determined and that his decision was thereby ultra vires, unreasonable and contrary to constitutional and natural justice.
Held by MacMenamin J in refusing to grant leave to seek judicial review that the documents in question could not have assisted the applicant at first instance or on appeal and that there were no grounds for reviewing the decision in question.
Reporter: P.C.
UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951
PROTOCOL ON THE STATUS OF REFUGEES 1967
UNIVERSAL DECLARATION OF HUMAN RIGHTS
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S13(6)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S13(6)(E)
REFUGEE ACT 1996 S16(2)(A)
REFUGEE ACT 1996 S11(A)(3)
REFUGEE ACT 1996 S16(16)
REFUGEE ACT 1996 S16(16)(A)
OKUNGBOW v REFUGEE APPEALS TRIBUNAL & ORS RAC 8.6.2005
K (G) & ORS v MIN JUSTICE 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557
SAVIN v MIN JUSTICE UNREP SMYTH 7.5.2002 2002/13/3176
COOKE v COOKE 1919 IR 248
DAWSON v HAMILL 1989 IR 275
FLYNN v RUANE 1989 ILRM 690
BYRNE v JUDGE JAMES SCALLY UNREP HIGH 12.10.2000 2000/3/1065
The applicant herein initiated judicial review proceedings on 3rd February, 2004 seeking an order of certiorari upon the recommendation of the Refugee Applications Commissioner that he not be declared a refugee together with various declaratory reliefs with respect to the "safe country of origin" provisions implemented by the respondents.
By notice of appeal dated 28th January, 2004 an appeal was lodged by the applicant with the Refugee Appeals Tribunal without prejudice to his right to seek judicial review of the said recommendation on the advice of his legal advisors in order to meet the strict time limits set down by statute. The applicant contends that at all material times the Refugee Appeals Tribunal (the first named respondent herein) was aware that the decision of the Refugee Appeals Commissioner was the subject matter of judicial review proceedings. Further the applicant states that the said judicial review proceedings were served on Chief State Solicitor as solicitor for the respondents. It is contended therefore that in the circumstances the first named respondent had constructive notice of the proceedings against the Refugee Appeals Commissioner and the second third and fourth named respondents herein. These judicial review proceedings were against the Commissioner were initiated on 3rd February, 2004.
Although the High Court judicial review proceedings against the Commissioner (the first set of proceedings) has been adjourned on a number of occasions the first named respondent herein decided to proceed to deal with the appeal. The applicant contends that this decision wasultra vires arbitrary and unreasonable and contrary to constitutional and natural justice.
The background to this application can best be understood by a brief chronology of events. On 15th September, 2003 the applicant's country of origin Romania was determined to be a safe country of origin. Two weeks thereafter he left that country and on 6th October, 2003 applied for refugee status in this jurisdiction. On 15th October, 2003 he filled out a pro forma questionnaire which was translated on 30th October, 2003. It was decided by the Commissioner that the interview should take place on 4th November, 2003. However in order to allow certain documents which the applicant contended would assist his case the actual interview was adjourned until 6th January, 2004. I am informed that on 18th November, 2003 the documents were notarised in Romania. On 23rd December five weeks the documents were sent to Ireland by post.
On 5th January, 2004 the applicant states that he contacted his solicitor for the first time and as a result his solicitor sent a brief letter to the Commissioner seeking adjournment of the interview due to take place on Tuesday 6th January, 2004.
With reference to the above named we confirm that we have just been instructed by this man and would ask you that you postpone his interview for a further two weeks. It is currently scheduled for Tuesday 6th January, 2004 at 13.30." The interview however was not adjourned. It proceeded on 6th January, 2004. On that date the applicant was not represented or he contends was he given the opportunity to make legal submissions. The recommendation from the Commission's delegated officer was made on 12th January, 2004. It recommended against a granting of refugee status. A secondary recommendation was made on 15th January, 2004. On 16th of that month notice in writing of such recommendation was sent to the applicant. On 19th January, 2004 the applicant states that certain supporting documentation which would have assisted him in his interview arrived in this country. On 28th January, 2004 a notice of appeal was lodged to the first named respondent as against the decision of the Commissioner.
As stated earlier judicial review proceedings against the Commissioner were commenced by way of notice of motion on 3rd February, 2004. These were served upon the Chief State Solicitor's office. There is not evidence however that the Refugee Appeals Tribunal, or its delegated officer Mr. Eamonn Barnes, had any knowledge of the initiation of these proceedings. By reason of the nature of the application and finding, the applicant was entitled to an accelerated hearing which was conducted in documentary form. On 9th February, 2004 nine days after the appeal was lodged the relevant decision, which was impugned in these proceedings was made by the Refugee Appeals Tribunal.
The return date for the judicial review motion against the Commissioner in the first set of proceedings was 3rd March, 2004. On 2nd May, 2004 judicial review proceedings were commenced against the respondents in these proceedings where ultimately the return date was 14th July, 2004.
The application before the court is for leave to bring judicial review proceedings.
While other grounds are raised in the notice of motion the argument was in truth confined to the issue of fair procedures. In this context it is contended that the matters in issue are
(a) The decision of the first named respondent to proceed with his hearing when the first set of proceedings against the Commissioner were being challenged (although there is no evidence that this was known to the Tribunal)
(b) The nature of the decision made by the first named respondent which it is contended is of an irrational nature and
(c) The failure of the Refugee Appeals Tribunal to refer to or have regard to the fact that the Commissioners Officer did not accede to the application to adjourn the interview on 6th January, 2004.
A subsidiary issue arises regarding the appropriateness of judicial review upon the facts of this case.
It is accepted that nothing in the Illegal Immigrants (Trafficking) Act of2000entitles a person to legal advice at interview. But it is contended the forms and the nature of the interview provide for the possibility of such legal representation.
The applicant contends that the Commission official should not have proceeded to make his decision in the absence of documentation which he contended was being prepared and readied in his native country. He contends that this documentation would have substantiated a contention that he had a well founded fear of persecution within the meaning of the 1951 Convention relating to the status of refugees as amended by the 1967 protocol thereto, and s. 2 of the Refugee Act1996.
The applicant states that as appears from the questionnaire submitted to the Commissioner he has endured malicious prosecution, wrongful imprisonment and assaults by the Romania police and members of the PDSR owing to his active membership of the PNTCD (the National Peasants Party Democratic Convention). The applicant states that he was also assaulted and hospitalised previously when he complained about the refusal of the authorities to issue him with a revolution-participant card to which he was entitled owing to his active role in the over throw of...
To continue reading
Request your trial