A (F) v Min for Justice and Others

JurisdictionIreland
JudgeMr. Justice Aindrias Ó Caoimh
Judgment Date21 December 2001
Neutral Citation[2001] IEHC 217
CourtHigh Court
Date21 December 2001

[2001] IEHC 217

THE HIGH COURT

Record No. 390 JR/1999
A (F) v. MIN FOR JUSTICE & ORS
(JUDICIAL REVIEW)

BETWEEN

F A
APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND APPEALS AUTHORITY OF IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

Citations:

CONSTITUTION ART 40.3

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION) ART 1A(2)

PROTOCOL ON THE STATUS OF REFUGEES 1967 ART 1A(2)

RSC O.84 r21

REFUGEE ACT 1996 S2

IMMIGRATION & NATURALIZATION SERVICE V CARDOZA-FONSECA 480 US 421

IMMIGRATION & NATIONALITY ACT 1952 S101(A)(42)

IMMIGRATION & NATIONALITY ACT 1952 S208(A)

IMMIGRATION & NATIONALITY ACT 1952 S243(H)

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX-PARTE SIVAKUMARAN 1988 1 AER 193

R V GOVERNOR OF PENTONVILLE PRISON EX-PARTE FERNANDEZ 1971 1 WLR 987

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX-PARTE ADAMS 1995 AER 177

KARAVIAKARAN V SECRETARY OF STATE FOR THE HOME DEPARTMENT 2000 3 AER 449

CHAN V MIN FOR IMMIGRATION & ETHNIC AFFAIRS 1989 169 CLR 379

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PARA 199

FLANAGAN V UNIVERSITY COLLEGE DUBLIN 1988 IR 724

O'DONOGHUE V VETERINARY COUNCIL 1975 IR 398

HENEGHAN V WESTERN REGIONAL FISHERIES BOARD 1986 ILRM 225

VAN DE HURK V NETHERLANDS 1994 18 EHRR 481

FUGITIVE OFFENDERS ACT 1967 S4(1)(C)

BOUGHEY V QUEEN 1986 161 CLR 10

MURPHY V FLOOD & ORS 1999 3 IR 97

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

Synopsis:

IMMIGRATION

Asylum

Judicial review - Certiorari - Deportation - Whether statutory procedures complied with - Whether applicant had demonstrated well-founded fear of persecution (390JR/1999 - Ó Caoimh J - 21/12/2001)

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

Facts: The applicant had arrived in Ireland and had sought asylum. The respondents had refused the applicant refugee status and had issued a deportation order. Judicial review proceedings were issued by the applicant challenging the decision to deport him.

Held by Ó Caoimh J in dismissing the proceedings. The respondents had correctly applied the test relating to a “well-founded fear of persecution”. The decision reached in this instance had not been shown to be irrational or unreasonable. In addition the applicant’s claim must fail for a failure to move promptly.

1

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 21st day of December 2001

2

On the 3rd March 2000 the Supreme Court gave the applicant leave to seek judicial review for the following relief:

3

1. An Order of Certiorari quashing the recommendations of the first and second named respondent to refuse the applicant recognition of refugee status.

4

2. An Order of Certiorari quashing the decision of the first named respondent its servants or agents to refuse the applicant recognition of refugee status.

5

3. A declaration that the applicant is entitled to a proper and independent appeal of a refusal of recognition of his refugee status and

6

4. An Order of Prohibition restraining the first named respondent, his servants or agents from removing the applicant from the jurisdiction.

7

The grounds upon which the applicant was given leave to seek the aforesaid reliefs are as follows:

8

a "(a) The applicant did not receive a just and proper appeal from the original refusal of recognition of his refugee status; the first named respondent, his servants or agents participating in and in deciding against his own decision and being seen to do so and further disinterested and unbiased adjudication being absent and/or in the alternative

9

(b) the first named and second named respondents exercised discretionary powers without regard to relevant considerations and discriminated evidence in a partial manner and/or in the alternative

10

(c) the first named respondent applied an arbitrary, inapplicable, unestablished standard of proof in reaching a recommendation and/or in the alternative

11

(d) the first named and second named respondents provided incomplete and inadequate reasoning in regard to the decision reached and in particular contrary to rule of law failed to address and to consider and to be seen to so do substantial arguments advanced on behalf of the applicant and/or in the alternative

12

(e) the applicant was not provided with evidence which the second named respondent relied on in coming to the recommendation and/or in the alternative

13

(f) the applicant is in real and substantial risk of violation of his human rights including his rights as a refugee and in particular his rights deriving under (1) Article 40.3 of the Constitution (2) the Refugee Act 1996, (3) the United Nations Convention relating to the Status of Refugees 1951 and the 1967 Protocol"

14

At the time of granting the applicant leave the Supreme Court granted a stay on the deportation order made on foot of a letter dated the 31st December, 1998, from the Asylum Division of the Department of Justice, Equality and Law Reform to the applicant.

15

An affidavit has been filed on behalf of the applicant which has been sworn by his solicitor Mr Anthony Conleth Pendred. He says that the applicant arrived in this country on the 3rd July, 1997, and sought asylum. The first named respondent on the 30th June, 1998, refused to grant the applicant recognition of Refugee Status. An appeal from this decision came before the second named respondent on the 21st October, 1998, when he was represented by Mr Pendred. At the appeal the applicant gave evidence of his experience of arrest, imprisonment and subjection to torture, cruel, inhumane and degrading treatment in Sierra Leone and further that such treatment occurred by reason of political activity and membership of a social group. Mr Pendred states further that the applicant gave evidence of his fear of further such treatment and victimisation should he return to Sierra Lcone. It is stated that the applicant further gave evidence of grave national civil and political disorder and violence in Sierra Leone.

16

It is stated that no evidence was offered at the hearing in contradiction of this testimony. On the 31st December, 1998, a Mr Richard Fennessy representing the Minister wrote to the applicant to inform him of the outcome of the appeal. It appears that this decision was arrived at following recommendations made by the second named respondent. Mr Pendred says that the letter fails to address the substantial arguments advanced on behalf of the applicant at the hearing. He says that the letter purports to show that the applicant's evidence lacked bona fides by means of giving a single instance of an alleged untruth on the part of the applicant and that the said letter states that the applicant actually gave a correction to his evidence in this regard during the hearing. Mr Pendred further points out that the letter makes reference to an alleged source of information known as the Political Handbook of the World. He says that by reference to this book it was purported to discredit the evidence of the applicant that his persecution and fear of persecution in Sierra Leone in part arose from his membership of the Kabbah Party. He says that the applicant was not informed of this purported source of evidence prior to the hearing nor was he provided with same at the hearing. He says that no evidence of further investigation by the first named respondent in this regard was offered to the hearing and that in particular no reference made to the United Nations High Commission for Refugees investigation. Mr Pendred says that in purporting to rely upon the applicant's membership of the Kabbah Party the first named respondent in the letter proposes that this fact would ensure the applicant's safety in Sierra Leone. He says that independent sources state that no such presumption is possible, that stable Government is not established, that all political activity in Sierra Leone is highly dangerous and that members of all factions have suffered indiscriminate violence in a Civil War environment. In further reference to the letter from Mr Fennessy, Mr Pendred says that it purports to state that the Appeals Authority applied a standard of proof in considering evidence of "reasonable likelihood" of persecution. He says that the purported standard was not at any time stated as that to be applied. He says further that the purported standard is not present in relevant Conventions applicable to refugees and in particular is not present in the 1951 Convention relating to status of refugees and the 1967 Protocol thereto.

17

Mr Pendred says that by letter of the 7th January, 1999, he wrote to the Minister in reply to the letter of the 31st December, 1999, outlining therein his objections to and concerns with the contents of the letter. He says that he further petitioned the Minister on behalf of the applicant for leave to remain in this jurisdiction on humanitarian grounds. He says that be has received no reply to this letter. He says that the applicant has received no further notice of being made subject to deportation.

18

The letter of the 31st December, 1998, indicates that the Appeals Authority stated that he was unable to accept the bona fides of the applicant's claim and concluded that he had difficulty in believing his account of events. Mr. Fennessy, in reference to the decision/recommendation of the Appeals Authority stated as follows:

"For instance, he has stated that when asked about details about your mother's death you originally stated that she was killed in May 1997. He indicated that you could not confirm the precise date. Later, he stated that you change your mind about the date of her death and confirm that she was, in fact, killed earlier in 1995.

The Appeals Authority stated that your convention grounds for asylum in Ireland are based on your membership of a social...

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