A(EJ) v Refugee Applications Commissioner and the Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 05 March 2004
• Neutral Citation: 2004 WJSC-HC 165
• Court: High Court
• Date: 05 March 2004

2004 WJSC-HC 165

THE HIGH COURT

No 440 JR/2003

AGWU v. REFUGEE APPLICATIONS COMMISSIONER & REFUGEE APPEALS TRIBUNAL

JUDICIAL REVIEW

BETWEEN

EBERE JOHNSON AGWU

APPLICANT

AND

THE REFUGEE APPLICATIONS COMMISSIONER

AND

THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

Citations:

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2002 S5

REFUGEE ACT 1996 S13

IMMIGRATION ACT 2003 S7(H)

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

IMMIGRATION ACT 1999 S6(2)

REFUGEE ACT 1996 S16(2)(C)

REFUGEE ACT 1996 S16(2)(D)

REFUGEE ACT 1996 S16

IMMIGRATION ACT 1999 S11(1)(K)(I)

REFUGEE ACT 1996 S11(B)

IMMIGRATION ACT 2003 S7(F)

REFUGEE ACT 1996 S16(16)(A)

REFUGEE ACT 1996 S11(B)(C)

O'KEEFFE V BORD PLEANAL 1993 1 IR 39

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 632

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

IN THE MATTER OF ART 26 OF THE CONSTITUTION & S5 & S10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 2000 2 IR 360

Z V MIN JUSTICE 2002 2 ILRM 216

REFUGEE ACT 1996 S12(4)

IMMIGRATION ACT 2003 S7(G)

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992

CARCIU V MIN JUSTICE UNREP FINALY-GEOGHEGAN 4.7.2003

CAMARA V MIN FOR JUSTICE UNREP KELLY 26.7.2000 2000/4/1247

EIRCELL V LEITRIM CO COUNCIL 2000 ILRM 81 2000 1 IR 482

O V MIN FOR JUSTICE & ORS (BABY O CASE) 2002 2 IR 169 2003 1 ILRM 241

A V MIN JUSTICE UNREP 19.11.2003 GILLIGAN (EX TEMPORE)

Abstract:

Immigration - Asylum - Judicial review - CertiorariLack of credibility - Refugee law - Practice and procedure - Fair procedures - Whether decision of Refugee Appeals Tribunal flawed - Whether failure to properly consider evidence of applicant - Refugee Act, 1996 - Illegal Immigrants (Trafficking) Act, 2000.

The applicant had arrived in the State and had applied for refugee status. The applicant was refused refugee status by the Refugee Appeals Commissioner and on appeal by the Refugee Appeals Tribunal. The applicant then initiated the present application seeking leave to bring judicial review proceedings. Counsel on behalf of the applicant submitted that the Refugee Appeals Tribunal erred in law and adopted unfair procedures in assessing the credibility of the applicant, had failed to consider the various reports given by the applicant of his travel details and had failed to consider the applicant’s explanations for any misstatements in that regard.

Held by Herbert J in refusing leave to bring judicial review proceedings. It was open to the relevant member of the Refugee Appeals Tribunal on the facts to find against the applicant and to reach the conclusions regarding the credibility of the applicant. This conclusion could not be said to be indefensible as contrary to reason and commonsense. The applicant had not established substantial grounds as set out in the Illegal Immigrants (Trafficking) Act, 2000 and leave would be refused.

Reporter: R.F.

1 Judgment of Mr. Justice Herbert delivered the 5th day of March 2004 .

2 In this case the Applicant seeks leave pursuant to s. 5 of the IllegalImmigrants (Trafficking) Act, 2002, to apply for Judicial Review in respect of the Report of the authorised officer of the first named respondent dated the 31 ^st July, 2001 and the Decision of the member of the second named respondent given on the 29 ^th May, 2003, that his claim for refugee status was manifestly unfounded. An issue arose with regard to the service of the Notice required to be served on the Applicant by s. 13 of the Refugee Act, 1996, as substituted by s. 7(h) of the Immigration Act, 2003. This Notice, dated the 24 ^th October, 2001, was re-issued on the 24 ^th April, 2004. Notice of the decision of the member of the second named respondent is dated the 30 ^th May, 2003 and it is accepted that this Notice was duly served by registered post on the applicant. The Notice of Motion seeking leave to apply for Judicial Review and the statement required to ground the application for Judicial Review in this application are each dated the 13 ^th June, 2003. In an Affidavit sworn by Martin O'Mahony, an Officer of the first named respondent, on the 2 ^nd December, 2003, objection is taken that the application for leave to apply for Judicial Review is out of time in respect of the first named RESPONDENT at least, by 33 days or more than twice the time allowed. Section 5(2)(a) of the Illegal Immigrants (Trafficking) Act, 2000provides that the application must be made within fourteen days, commencing on the date on which the person was notified of the decision sought to be impugned. By section 6(2) of the Immigration Act, 1999, a Notice is deemed to have been duly served on the third day after the day on which it was sent.

3 It was further submitted by Counsel for the Respondents that the Applicant had, in any event, elected to proceed by way of Appeal to the second named respondent from the decision of the authorised officer of the first named respondent, despite the now alleged breaches of constitutional and natural justice on the part of the authorised officer of the first named respondent in the conduct and determination of that investigation. The Applicant's Notice of Motion does not seek an order of the Court extending the time within which the application for the relief sought against the first named respondent might be made. The Grounding Affidavit sworn by the Applicant on the 13 ^th June, 2003 does not, nor does the Supplemental Affidavit sworn by him on the 12 ^th January, 2004 explain or excuse the delay, even though the latter affidavit is stated to be made in reply to the affidavit of Martin O'Mahony, sworn on the 2 ^nd December, 2003 and addresses the issues raised in the remainder of that affidavit in very great detail.

4 In the circumstances, this Court has no basis upon which it could conclude that there is a good and sufficient reason to exercise its discretion to extend the time and cannot therefore do so. Accordingly, this Application must proceed as an application for leave to seek Judicial Review of the decision of the member of the second named respondent only.

5 As against the second named respondent, the Applicant's Statement of Grounds seeks the following relief:

6 i "(iv) A Declaration that the Second Named Respondent failed to have regard to and/or take into account all relevant considerations and/or failed to act in accordance with fair procedures and natural and constitutional justice in affirming pursuant to s. 16(2)(c) of the Refugee Act, 1996(as amended) the recommendation of the First Named Respondent that the Applicant's claim is manifestly unfounded.

7 (v) A Declaration that the Second Named Respondent failed to have regard to and/or take into account all relevant considerations and/or failed to act in accordance with fair procedures and natural and constitutional justice in failing to set aside, pursuant to s. 16(2)(d) of the Refugee Act, 1996(as amended), the recommendation of the First Named Respondent that the Applicant's claim is manifestly unfounded.

8 (vi) An Order of Certiorari quashing the decision of the Second Named Respondent to affirm the recommendation of the First Named Respondent.

9 (vii) An Order of Mandamus directing the Second Named Respondent to remit the Application to the First Named Respondent in accordance with s. 16(2)(d) of the Refugee Act, 1996(as amended).

10 At paragraphs 32 to 36 inclusive of the Grounding Affidavit sworn by the Applicant on 13 ^th June, 2003, he avers as follows:

11 2 "32. I say that, not only does the decision of the Second Named Respondent fail to rectify the fundamental errors of the First Named Respondent. I say that it relies on the very same breaches of statute, fair procedures and/or of natural and constitutional justice in arriving at same.

12 33. In particular, I say that the decision pursuant to s. 16(2)(c) of the Act of 1996 (as amended) also refers to an inconsistency about “Belgium”. I say and am advised that this finding is unjustified and unfounded and is in utter disregard of a fair and reasonable consideration or any consideration of my appeal in accordance with the statute and/or natural and constitutional justice.

13 34. I say that reference to “Belgium”, in circumstances where no such reference occurred, is a fundamental error in the decision making process of the Second Named Respondent. I say that failure to identify that error and exclude it from the consideration is a fundamental error in the decision making process. I say that reliance on that error in affirming the recommendation of the First Named Respondent is a fundamental error in the decision making process. Finally, I say and am advised that, in light of my claim and the entirely of the evidence submitted, a recommendation that my claim is manifestly unfounded is a fundamental error in the decision making process.

14 35. I say that the Notice of Appeal specifically enclosed in detail the grounds upon which the earlier recommendation of the First Named Respondent should be set aside including the inexplicable reference to "Belgium". I say and believe and am so advised that there is no basis in law or in fact for the Second Named Respondent to recommend that your Deponent's claim is manifestly unfounded on the basis of the decision pursuant to s. 16 (2) (c) of the 1996 (as amended).

15 36. Further or in the alternative, I say and am advised that there is no basis on all or any other grounds that are or may be relied upon herein or any basis for the Second Named Respondent to decide that the recommendation of the First Named Respondent should be so affirmed."

16 During the course of the hearing of this application, the original Application Form seeking asylum, commonly referred to as the A.S.Y.1 Form, completed by the Applicant himself, on the 11 ^th April, 2000, at the Office of the Asylum Division, Refugee Applications Centre, 79/83 Lower Mount Street, Dublin...