D (A) v Refugee Applications Commissioner and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Cooke
• Judgment Date: 27 January 2009
• Neutral Citation: [2009] IEHC 77
• Docket Number: [No. 530J.R./2008]
• Court: High Court
• Date: 27 January 2009

[2009] IEHC 77

THE HIGH COURT

[No. 530J.R./2008]

D (A) v Refugee Applications Commissioner & Ors

BETWEEN

A.D.

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S2

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(B)

REFUGEE ACT 1996 S16

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381 1982 ILRM 590 1982/1/1

MCGOLDRICK v BORD PLEANALA 1997 1 IR 497 1995/10/2825

GILL v CONNELLAN 1987 IR 541 1988 ILRM 448 1987/6/1683

BUCKLEY v KIRBY & DPP 2000 3 IR 431 2001 2 ILRM 395 2000/3/887

STEFAN v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY 2001 4 IR 203 2002 2 ILRM 134 2001/23/6290

Z (V) v MIN FOR JUSTICE & ORS 2002 2 IR 135 2002 2 ILRM 215 2003/49/12190

KAYODE v REFUGEE APPLICATIONS CMSR UNREP O'LEARY 25.4.2005 2005/33/6894 2005 IEHC 172

N (BN) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP HEDIGAN 9.10.2008 2008 IEHC 308

REFUGEE ACT 1996 S13(6)

IMMIGRATION

Asylum

Judicial review - Leave - Credibility - Report of commissioner - Recommendation that well-founded fear of persecution not established - Extension of time - Minimal delay - Absence of lack of diligence - Claim of physical and psychological abuse and violation over extensive period - Negative credibility findings - Medical evidence - Physical scars - Diagnosis of PTSD - Country of origin information - Whether substantial grounds for review - Availability of alternative remedy by way of statutory appeal - Appeal pending - Principles applicable to exercise of discretion to grant leave - Necessity to show fundamental flaw or illegality in report such that appeal an inadequate remedy - Alleged flaws going to quality of decision - Complaints capable of being raised and reheard de novo on appeal - State (Abenglen Properties Ltd) v Dublin Corporation [1984] IR 381, McGoldrick v An Bord Pleanála [1997] 1 IR 497, Gill v Connellan [1988] ILRM 448, Buckley v Kirby [2000] 3 IR 431, Stefan v Minister for Justice [2001] 4 IR 203, VZ v Minister for Justice [2002] 2 IR 135, Kayode v Refugee Appeals Commissioner [2005] IEHC 172 (Unrep, O'Leary J, 25/4/2005) and N v Minister for Justice [2008] IEHC 308 (Unrep, Hedigan J, 9/10/2008) considered - Refugee Act 1996 (No 19), ss 2 and 13 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Leave refused (2008/530JR - Cooke J - 27/1/2009) [2009] IEHC 77

D(A) v Refugee Appeals Commissioner

Mr Justice Cooke

Introduction

1 1. In this application leave is sought to apply to the Court for judicial review of the report of the Refugee Applications Commissioner ("the Commissioner") dated 10^th March, 2008 ("the Contested Report"). In the report which was notified to the applicant under cover of a letter dated 2^nd April, 2008 and made under s. 13(1) of the Refugee Act 1996 (as amended), ("the 1996 Act") the Commissioner recommended that the applicant should not be declared a refugee because he, the Commissioner, was satisfied that the applicant had not established a well-founded fear of persecution as required by s. 2 of that Act.

2 2. If leave is granted the applicant will seek the following orders by way of relief;

3 a a. An order ofcertiorari quashing the contested report and recommendation;

4 b b. a declaration that the Commissioner erred in law and acted in breach of fair procedures in determining the applicant's application;

5 c c. an order extending the time for bringing this application pursuant to s. 5, ss. 2 of the Illegal Immigrants (Trafficking) Act2000; and

6 d d. an injunction restraining the Refugee Appeals Tribunal from acting on foot of the report.

7 3. The applicant appears to have received notification of the report within a few days of 2^nd April, 2008 and she contacted her solicitor on or about 10^th April, 2008. A medical report was obtained and, by the time information had been assembled, counsel had been consulted and papers drafted, the present proceedings was commenced on 2^nd May, 2008. As there was no obvious lack of diligence on the part of the applicant and in view of the minimal delay beyond the statutory period of 14 days, the Court is satisfied that, if necessary, there would be good and sufficient reason to grant the necessary extension of time in this case.

8 4. The applicant has also lodged an appeal against the Contested Report to the Refugee Appeals Tribunal ("the Tribunal") in order to stop time running. That appeal was brought within the statutory time limit and is still pending.

9 5. The applicant is a national of Guinea who arrived in the State in 2003 and applied for refugee status on 17^th November, 2003. She claims to have suffered appalling physical and psychological abuse and violation over an extensive period and to have fled Guinea to escape it.

The Claim for Refugee Status

10 6. The history of her application for refugee status is somewhat lengthy but insofar as is relevant to the issues in the present proceeding it can be summarised as follows:

11 a) She applied, as mentioned, for refugee status in November, 2003, completing the ASY1 form and the refugee status questionnaire;

12 b) She was first interviewed in the Commissioner's office in April, 2004, and a first report by the Commissioner on 3rd June, 2004, recommended refusal of refugee status.

13 c) This was appealed to the Tribunal and a hearing took place on 30^th September, 2004. At this hearing she learned, to her apparent surprise, that her twin sister was in Ireland and had been here since 2001.

14 d) The Tribunal decision of 8^th October, 2004, upheld and confirmed the Commissioner's refusal recommendation.

15 e) The applicant then applied successfully to the Minister to be allowed to make a new application for refugee status on the basis that her sister would be available to corroborate her evidence.

16 f) In April, 2005, she made a new application again completing the required forms and questionnaire and she furnished country of origin information and a corroborating affidavit of her sister. She also submitted a SPIRASI medical report and a UN record of the General Assembly Plenary Session of 24^th September, 1999.

17 g) She was interviewed on 30^th June, 2005, and on 30^th December, 2005, the Commissioner issued a second report recommending, once again, that she be refused refugee status.

18 h) This report was challenged by judicial review proceedings and was vacated by consent.

19 i) In advance of a new interview by the Commissioner, on 23^rd November, 2007, the applicant submitted a new medical report by the Department of Psychology of St James' Hospital.

20 j) The interview took place on 9^th February, 2008, and resulted in the Contested Report of 10^th March, 2008, which is now sought to be quashed.

Applicant's history

21 7. The events in the personal history recounted by the applicant and which form the basis of the negative findings of credibility in the contested report can be summarised as follows.

22 a A) The applicant's father is claimed to have been a wealthy businessman who supported the UFR Guinean opposition party. On 19^th April, 1999, it is claimed that he attended a reception in the United States at the Guinean Embassy for the president of Guinea at which a form of demonstration against the president broke out and which was described by the applicant "as a kind of uprising". As a result, the president ordered the arrest in Guinea of all Guineans returning from the United States including the applicant's father. The police then sought him out and killed both him and the applicant's mother.

23 b B) She and her sister were imprisoned by the police. Her sister was released because she was pregnant but the applicant was detained for ten months during which she claims she was repeatedly raped and tortured.

24 c C) She says she was then taken by the Prisons Commissioner to his house and kept from January, 2002, until November, 2003, during which time she was raped continuously by the commissioner and his friends.

25 d D) The applicant claims that one of those friends, a man called Alphonse, befriended her, helped her escape, and brought her to Ireland.

Medical Evidence

26 8. The medical report of the Centre for the Care of Survivors of Torture, (the SPIRASI report,) is that of Dr Sabrina Vascia and Patrick O'Sullivan of 9^th June, 2005, and after recording the history of extensive physical and sexual assaults, detention, forced abortions, the burning with cigarette butts and beatings, it concludes

"The physical examination reveals numerous scars which are highly consistent or consistent with the history of cigarette burns and knife wounds that she reports sustaining while detained. She also exhibits many psychological features which would be consistent with a state of post-traumatic stress disorder".

27 9. The report from St James' Hospital dated 18^th October, 2007, is a psychological assessment carried out by Professor Andrea Vangara, senior clinical psychologist and psychotherapist and Dr Linda Finnegan, principal psychologist and psychotherapist.

28 10. This too, sets out the background history given by the applicant and the extensive difficulties and symptoms which she exhibited or of which she complained. These included headaches, difficulty in talking of her experiences, flashbacks, suicidal thoughts, self-harm, memory difficulties, anxiety, and fearfulness. The report also describes the treatment she had received based on the diagnoses of post-traumatic stress disorder and the good progress she had made in that therapeutic process. The report then concludes:

"This 23 year old woman has a diagnosis of PTSD as a direct result of her experience of repeated torture and rape by a series of assailants during her abduction and...