G.O. v Refugee Applications Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice MacEochaidh,Mr. Justice Mac Eochaidh
• Judgment Date: 13 October 2015
• Neutral Citation: [2015] IEHC 645,[2015] IEHC 646
• Court: High Court
• Date: 13 October 2015

O (G) v Refugee Applications Cmsr

BETWEEN

G. O.

APPLICANT

AND

THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

[2015] IEHC 645

[No. 518 J.R./2015]

THE HIGH COURT

Asylum, Immigration & Nationality – Multiple asylum applications in multiple countries – Subsidiary protection – Fear of persecution – Negative credibility findings – Judicial review – Error of jurisdiction

Facts: The applicant sought leave to seek judicial review against the decision of the respondent alleging that the respondent had committed an error of law by not taking account the claim presented by the applicant.

Mr. Justice Mac Eochaidh refused to grant leave to seek judicial review to the applicant. The Court held that the introduction of a new claim of fear of being discriminated in the country of origin for the first time after the original claim for subsidiary protection was filed would not give a ground to seek judicial intervention even though there was a manifest error of law committed by the respondent by not mentioning about the said claim. The Court observed that the conduct of the applicant in initiating various asylum applications in different countries and multiple applications for getting subsidiary protection in Ireland constituted an abuse of process of law. The Court found that the appropriate remedy for the applicant was to pursue the matter before the Refugee Appeals Tribunal and hence no injustice would be caused to the applicant.

1 EX TEMPORE JUDGMENT of Mr. Justice MacEochaidh delivered on the 13th day of October, 2015.

2 1. I refer to the decision of this court in S.F.A. v. Minister for Justice, Equality & Ors [2015] I.E.H.C. 364 and in particular to the summary of the law governing the circumstances in which this court will entertain judicial review of a first instance decision maker in the asylum process. I refer to the various paragraphs in my judgment as to what is an error as to jurisdiction. I also refer to the dicta of Hogan J. in C.E. v. Minister for Justice Equality and Law Reform [2012] I.E.H.C. 3 and to the decision of Reid L.J. in Anismimic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147 in relation to errors as to jurisdiction and judicial review and the modem view as to what that constitutes. Finally, I refer to my own conclusions as to the desirability of the Anismimic approach, it being simple.

3 2. Effectively, all of those rules require the person seeking judicial review of a first instance decision maker to identify an error as to jurisdiction which I interpret to be an error of law in the decision and to put forward arguments as to why the error is of a particular quality which merits intervention at this stage. Not all errors as to jurisdiction attract judicial review and the interests of justice is a paramount consideration in considering whether judicial review is appropriate in any given case following a first instance decision in the asylum process.

4 3. In this case the applicant is not the sort of person who induces feelings of great sympathy from the Court. The applicant has presented on his own account applications for asylum in Ireland, England, Germany, Austria and Switzerland. He has done so using multiple identities and advancing multiple and conflicting claims for asylum. His credibility is in shreds. He has sought to re-enter the asylum claim and that has been rejected in Ireland. He has presented multiple applications for subsidiary protection containing conflicting accounts as to identity and as to reasons for seeking international protection. He was invited to re-present a claim for subsidiary protection. He did so by way of continuing a much earlier claim for asylum which for various reasons had not been pursued.

5 4. There is an obligation on persons seeking subsidiary protection to co-operate with the State and to present the claim in a reasonable fashion. A claim was presented, a form was filled and there was an indication as to the basis of that claim. Following the interview in the matter which took place on the 14 ^th of January, 2015, the applicant's solicitors, who were new solicitors in the case, called Synnott Solicitors, sent a letter to the first instance decision maker some days after the oral procedure introducing for the first time an entirely new ground for international protection that the applicant feared suffering indiscriminate violence in Nigeria.

6 5. No reference was made in the letter that this new claim was being presented for the first time many years after the original claim for subsidiary protection. No apology is made as to why it is introduced after the form has been filled, after the interview has been conducted and I note that one of the questions asked in the interview was whether the matters discussed in the interview constituted the entirety of the claim to which the applicant responded "yes".

7 6. When the decision was taken at first instance by the authorised officers no mention was made in the decision of the late and new claim presented on behalf of the applicant that he feared the consequences of indiscriminate violence contrary to art. 15(c) of Directive 2004/83 E.C.. I accept that that is an error of law in the decision of the first instance decision maker.

8 7. However, having regard to the undoubted role that the applicant and his lawyers played in the late submission of the new ground without explanation, the fact that it was introduced after the oral procedure had been concluded, the fact that no explanation for this has ever been provided either to the decision maker or to this court and having regard to the very significant rejection of credibility of the applicant and to the fact that he has, and I say this without any hesitation, abused the asylum process, not just in Ireland but in many countries, it seems to me that the interests of justice would not be served by permitting intervention to set aside the decision of the first instance decision maker and to correct the error of law which undoubtedly has happened in the case. I am satisfied that an adequate remedy lies to the Refugee Appeals Tribunal where this matter can be fully and properly pursued and no injustice is thereby caused. In these circumstances I reject the application for leave to seek judicial review in this case.

O (G) v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

G. O.

PLAINTIFF

AND

MINISTER FOR JUSTICE AND EQUALITY, THE REFUGEE APPLICATIONS COMMISSIONER IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2015] IEHC 646

[724 JR/2011]

THE HIGH COURT

Asylum, Immigration & Nationality –The Refugee Act 1996 – Fear of persecution – Whether evidence of applicant credible – Judicial review

Facts: The applicant sought leave as well as an order for setting aside the decision of the second named respondent. The applicant contended that the second named respondent had erroneously made credibility findings against him and had not paid heed to the country of origin information.

Mr. Justice Mac Eochaidh refused to grant leave and all other reliefs to the applicant. The Court found that the finding on the credibility of the applicant was lawful and appropriate given the inconsistencies that were found between the s. 13 report and the narration of events given by the applicant. The Court found that the country of origin information in the present case was supplied by the second named respondent and it was given due weight in its decision. The Court held that the decision of the second named respondent did not suffer from any infirmity and thus did not call for judicial intervention.

1 1. In these telescoped proceedings the applicant seeks leave and final orders to set aside the decision of the Refugee Applications Commissioner. The applicant says he is a national of Nigeria bom on the 3 ^rd March, 1972. He arrived in the State on the 12 ^th May, 2011, and made an application for asylum on the 30 ^th May, 2011. In a s. 13(1) report dated the 4 ^th July, 2011, the Commissioner recommended that the applicant not be given a declaration for refugee status. It is that decision which is the subject of these proceedings today.

2 2. The Superior Courts have given detailed guidance on the circumstances in which it is appropriate to review decisions of the Refugee Applications Commissioner and the principles which apply to such reviews were recently set out in a decision of this Court entitled P.D. v. Minister for Justice and Law Reform [2015] I.E.H.C. 111 where I said that the following principles applied to such reviews:-

2 "1. The High Court is entitled to grant certiorari or other public remedy in respect of a decision of the Refugee Applications Commissioner where an error as to jurisdiction is identified.

2 The significance of the error will determine whether the court may exercise its discretion to grant judicial review.

3 Not all errors as to jurisdiction attract judicial review.

4 The court must carefully consider the nature of the error in deciding whether the interests of justice require the first instance decision to be quashed and taken again rather than the error being the subject of an appeal to the Refugee Appeals Tribunal.

5 The court should bear in mind the extent of the Refugee Appeals Tribunal's capacity to provide a remedy and reverse the error. (The nature of appeals to the RAT has recently been fully described by Charleton J. in the Supreme Court in M.A.R.A..)"

3 I should say in passing that it is clear from the decision of the Supreme Court in M.A.R.A. (Nigeria) (an infant) v. Minister for Justice, Equality and Law Reform [2014] I.E.S.C. 71 that there is no question of law or no question of fact that the Refugee Appeals Tribunal can be precluded from deciding, that it is a comprehensive de novo consideration...