DVTS v Minister for Justice, Equality and Law Reform and Another

JurisdictionIreland
CourtHigh Court
JudgeMR. JUSTICE EDWARDS,Mr. Justice Edwards
Judgment Date30 November 2007
Neutral Citation[2007] IEHC 305,[2007] IEHC 451
Docket Number[2005 No. 1026 JR],Case No. 1026JR/2005
Date30 November 2007

[2007] IEHC 305

THE HIGH COURT

[No. 1026 J.R./2005]
S (DVT) v Minister for Justice
JUDICIAL REVIEW

BETWEEN

D.V.T.S.
APPLICANT

AND

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

REFUGEE ACT 1996 S17

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S16

REFUGEE ACT 1996 S16(2)(a)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

IMMIGRATION ACT 1999 S11(1)(k)

RSC O.84

REFUGEE ACT 1996 S13(1)

A (OA) v REFUGEE APPEALS TRIBUNAL UNREP FEENEY 9.2.2007 2007/4/605 2007 IEHC 169

GOODWIN-GILL THE REFUGEE IN INTERNATIONAL LAW 2ED 1996 354

IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416

KRAMARENKO v REFUGEE APPEALS TRIBUNAL & ORS 2005 4 IR 321 2004 2 ILRM 550 2004/26/6170

R v IMMIGRATION APPEAL TRIBUNAL EX PARTE SARDAR AHMED 1999 INLR 473

HORVATH v SECRETARY OF STATE FOR THE HOME DEPARTMENT 1999 INLR 7

IMMIGRATION

Asylum

Application for refugee status - Refusal - Assessment of applicant's credibility - Assessment of objective element of asylum seeker's stated fear of persecution - Evidence - Treatment of conflicting country of origin documentation - Whether rational basis for preferring one set of country of origin information over another - Treatment of medical reports - Whether Refugee Appeals Tribunal erring in law - United Nations Convention Relating to the Status of Refugees 1951 - Certiorari granted (2005/1026JR - Edwards J - 4/7/2007) [2007] IEHC 305

S(DVT) v Minister for Justice

Facts: The applicant was a national of Cameroon and applied for asylum on the basis of political persecution. The applicant sought to quash the decision of the respondent Tribunal refusing him asylum on the basis that the respondent Tribunal had failed to consider the conflicting information contained in the country of origin materials. The respondents alleged that broad ranging leave had not been granted.

Held by Edwards J. that the country of origin information before the RAT contained conflicting information and no indication had been given as to how the conflict was resolved. It was incumbent on the Tribunal to analyse the materials. The reliefs sought would be granted.

Reporter: E.F.

1

Mr. Justice Edwards delivered on the 4th day of July, 2007.

2

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

Background to the proceedings
3

The applicant is a national of Cameroon, West Africa. He arrived in Ireland on 8 th October, 2003 and upon his arrival at the frontiers of the State (Dublin Airport) he applied for asylum based upon his fear of persecution in Cameroon on account of his political opinion. He applied for a declaration pursuant to s. 17 of the Refugee Act, 1996, that he was a refugee as defined in s. 2 of that Act. He completed the necessary form and the questionnaire in support of his claim. He was subsequently interviewed by an investigating officer authorised in that behalf by the Refugee Applications Commissioner in the context of an investigation of the application by the Commissioner pursuant to s. 11 of the Refugee Act, 1996 for the purpose of ascertaining whether the applicant was a person in respect of whom a declaration should be given. Following the said s. 11 investigation, the Commissioner prepared a report in writing in accordance with s. 13 of the Refugee Act, 1996 (as amended) as to the results of the investigation and the said report recommended to the Minister for Justice, Equality and Law Reform that the applicant should not be declared a refugee as he had failed to establish a well-founded fear of persecution as defined under s. 2 of the said Act.

4

The applicant appealed the recommendation of the Refugee Applications Commissioner to the Refugee Appeals Tribunal (the second named respondent herein) pursuant to s. 16 of the Refugee Act, 1996. The applicant's appeal was heard on 23 rd March, 2005. He was afforded an oral hearing. Moreover, he was legally represented at the oral hearing by the Refugee Legal Service. The applicant himself gave evidence and was cross-examined by the presenting officer. The Tribunal also considered certain documents submitted by the applicant including a political party membership card with a letter of attestation re his identity and nationality, a birth certificate and two photographs. The applicant submitted medical reports including a report furnished by a Dr. John Goode of the Centre for the Care of Survivors of Torture dated 19 th March, 2005 (hereinafter referred to as the SPIRASI report) and certain country of origin information. The second named respondent had also been furnished with copies of the reports, documents and representations in writings submitted to the Commissioner under s. 11 and, of course, the Tribunal had a copy of the Commissioner's s. 13 report. Moreover, the Tribunal itself sought certain clarifications of the SPIRASI report, and the clarifications were provided by letter of the 8 th April, 2005.

5

On 30 th day of June, 2005 the second named respondent decided to refuse the applicant's appeal. Accordingly, the Refugee Appeals Tribunal affirmed the recommendation of the Refugee Applications Commissioner given under s. 13 of the Refugee Act, 1996 that the applicant should not be declared to be a refugee. The decision of the Refugee Appeals Tribunal under s. 16 (2)(a) of the 1996 Act was duly notified to the applicant in accordance with the requirements of the Act and no issue arises in relation to that.

6

The applicant is dissatisfied with the decision of the Refugee Appeals Tribunal. He has sought to challenge it by way of application for judicial review in the context of which he seeks diverse reliefs including an order of certiorari quashing the said decision. Section 5 of the Illegal Immigrants (Trafficking) Act 2000 provides that a person shall not question the validity of a decision of the Refugee Appeals Tribunal under s. 16 of the Refugee Act 1996 as amended by s. 11(1)(k) of the Immigration Act 1999, otherwise than by way of an application for judicial review under O. 84 of the Rules of the Superior Courts. Moreover, an application for leave to apply for judicial review must be made within the period of fourteen days commencing on the date on which the person was notified of the decision unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made. The application is required to be made by motion on notice and leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed.

7

By a notice of motion supported by a grounding affidavit, dated 23 rd September, 2005 the applicant sought leave to apply for diverse reliefs by way of judicial review including an order of certiorari quashing the decision of the second named respondent dated 13 th June, 2005. The said application was out of time but when the matter came on for hearing before MacMenamin J. in the High Court, on 14 th February, 2007 the applicant succeeded in persuading the court that there were good and sufficient reasons for extending the period within which the application shall be made. Moreover, the court was disposed to grant the applicant's application for leave to apply for judicial review in part. It was satisfied that there were substantial grounds for contending that the decision of the Refugee Appeals Tribunal ought to be quashed albeit on a more restricted basis than that contended for by the applicant. Accordingly, the court ordered that the applicant do file an amended Statement of Grounds and granted him leave to apply by way of application for judicial review for the reliefs now set forth at para. 4 of the amended Statement of Grounds that was filed in accordance with the High Court's said order on 20 th January, 2007, on grounds now set out at para. 5 of the same document. Those paragraphs are in the following terms:

8

2 "(4) Reliefs sought:

9

(a) An order of certiorari by way of application for judicial review quashing the decision of the second named respondent dated the 30 th day of June, 2005, notified to the applicant by letter dated July 26 th, 2005, that the applicant's claim for asylum in Ireland be refused.

10

(b) Such further or other order as to this Honourable Court shall see meet.

11

(c) An order providing for costs.

12

(5) Grounds upon which relief is sought:

13

(i) The second named respondent failed to take relevant considerations as to torture and country of origin information into account in reaching the decision that the applicant herein was not entitled to asylum in the State and/or took into account irrelevant considerations when making that decision. Without prejudice, the second named respondent failed to consider the relevant facts and documents as provided by the applicant and the relevant country of origin information in reaching its said decision."

14

At the hearing before me it was strenuously argued by Ms. Sarah Moorehead, S.C. on behalf of the respondents, that the applicant was not at large to argue anything he liked on account of the second sentence in para. 5(1) of the Statement of Grounds, that is the sentence commencing with the words "without prejudice". She submitted the applicant had not been granted leave to challenge the second named respondents' assessment of his credibility generally, or specifically in relation to details of escape; failure to apply for asylum in France; distribution of placards; supporting documentation (including photographs) or with respect to whether or not matters were put to the applicant. She contended that the applicant had been granted leave to apply for judicial review on just one ground...

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