O (F) v Min for Justice & Refugee Applications Commissioner

• Jurisdiction: Ireland
• Judge: Mr Justice Cooke
• Judgment Date: 26 June 2009
• Neutral Citation: [2009] IEHC 300
• Docket Number: [No. 1459 J.R./2006]
• Court: High Court
• Date: 26 June 2009

[2009] IEHC 300

THE HIGH COURT

[No. 1459 J.R./2006]

O (F) v Min for Justice & Refugee Applications Commissioner

BETWEEN/

F.O.

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S2

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

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

KAYODE v REFUGEE APPLICATIONS COMMISSIONER UNREP 29.1.2009 (EX TEMPORE)

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

D (A) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 27.1.2009 2009 IEHC 77

M (J) v REFUGEE APPLICATIONS CMSR & MIN FOR JUSTICE COOKE 27.1.2009 2009 IEHC 64

A (TT) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP COOKE 29.4.2009 2009 IEHC 215

A (RL) v MIN FOR JUSTICE UNREP COOKE 30.4.2009 2009 IEHC 216

N (N) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP COOKE 20.5 2009 2009 IEHC 234

S (P) (A MINOR) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 18.6.2009 2009 IEHC 298

A (O) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 25.6.2009 2009 IEHC 296

IMMIGRATION ACT 2003 S10

REFUGEE ACT 1996 S11(6)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(2)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)

IMMIGRATION

Asylum

Refugee status - Leave for judicial review - Claim based on persecution - Whether substantial grounds for review - Whether commissioner had general obligation to disclose or put country of origin information to applicant - Assessment of credibility - Matter for tribunal of fact - Obligation to disclose a shared duty to ascertain and evaluate all relevant facts - Whether commissioner's obligation to inquire in to all relevant facts extended to specific inquiries in to availability of treatment for HIV/Aids in country of origin - Application of applicant's child's case for asylum - Whether assessment sufficient - Stefan v Minister for Justice [2001] 4 IR 203, Kayode v RAC (Unrep, SC, 28/1/2009), B (NN) v Minister for Justice [2008] IEHC 308 (Unrep, Hedigan J, 9/10/2008), D (A) v RAC [2009] IEHC 77 (Unrep, Cooke J, 27/1/2009), M (J) v RAC [2009] IEHC 64 (Unrep, Cooke J, 27/1/09, A (TT) v Minister for Justice [2009] IEHC 215 (Unrep, Cooke , 29/4/2009), A (RL) v RAC [2009] IEHC 216 (Unrep, Cooke J, 30/4/2009), N (N) v RAC [2008] 1 IR 501, S (P) (a minor) v RAC [2009] IEHC 298 (Unrep, Cooke J, 18/6/2009) and A(O) v. RAT (Unrep, Cooke J, 25/6/2009) considered - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Leave refused (2006/1459 JR - Cooke J - 26/6/2009) [2009] IEHC 300

O (F) v Minister for Justice, Equality and Law Reform

Facts: The applicant who was a national of Nigeria sought leave to challenge by way of judicial review the decision of the office of the refugee applications commissioner (ORAC), which found that the applicant had failed to establish a well founded fear of persecution and recommended that she should not be declared a refugee. An appeal against that decision was initiated before the Refugee Appeals Tribunal but was left in abeyance pending the outcome of the present proceeding. The applicant submitted that the officer acted unlawfully by relying selectively upon country of origin information which was not disclosed or put to the applicant at interview in breach of the principles of natural and constitutional justice, in particular, the principle audi alteram partem. The applicant also submitted that the officer breached those same principles by failing to put to the applicant at interview and allow the applicant to answer or resolve apparent doubts regarding the credibility and veracity of the applicant’s claim. It was further submitted that the report failed to have any regard to the provisions of the European Communities (Eligibility for Protection) Regulations 2006, the report failed to comply with the obligation to discharge a shared duty to ascertain and evaluate all relevant facts and further that no proper assessment or analysis of the applicant’s child’s case for asylum was carried out when the child was included in the asylum application.

Held by Cooke J. in refusing the application for leave: That this case was one in which any ground of substance proposed to be advanced was capable of being considered and was more suitable to consideration and determination by means of the statutory appeal to the Refugee Appeals Tribunal.

Reporter: L.O’S.

Mr Justice Cooke

1 1. The applicant is from Nigeria and arrived in the State, according to her affidavit, on an unspecified date "in or about the month of August 2006" although she appears to have made an application to the Minister for a declaration of refugee status on the 26^th July, 2006.

2 2. She gave birth to a daughter on the 19^th September, 2006 in Dublin. On the 23^rd October she signed a form confirming that she wished to have her daughter included in her application for asylum but her daughter is not a party to the present application.

3 3. She attended for interview under section 11 of the Refugee Act 1996 on the 18^th November, 2006 and on the 23^rd November, 2006 she received the section 13 report of the Commission's authorised officer which appears to be made on the date of the interview, the 18^th November, 2006. The authorised officer found that the applicant had failed to establish a well founded fear of persecution for the purposes of s. 2 of the 1996 Act and recommended that she should not be declared a refugee. An appeal against that report and recommendation has been initiated before the Refugee Appeals Tribunal but has been left in abeyance pending the outcome of the present proceeding.

4 4. The applicant now seeks leave pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000 to apply for, inter alia, an order of certiorari to quash that report. If it is to grant leave, the Court must be satisfied that there are substantial grounds for contending that the section 13 recommendation is invalid and that it ought to be quashed.

5 5. As presented, the application has reduced the 17 grounds envisaged in the proposed statement of grounds as lodged, to five grounds which might be formulated more succinetly as follows:

6 (1) The Commissioner's authorised officer acted unlawfully by relying selectively upon country of origin information which was not disclosed or put to the applicant at the interview in breach of the principles of natural and constitutional justice and in breach, in particular, of the principleaudi alteram partem.

7 (2) The authorised officer acted unlawfully and in breach of the same principles by failing to put to the applicant during the interview and to allow the applicant to answer or resolve, apparent doubts held by the authorised officer as to the credibility and veracity of the applicant's claim.

8 (3) The report failed to have any adequate regard to the provisions of the European Communities (Eligibility for Protection) Regulations 2006; a mere statement that they had been considered being insufficient...