H (D) v Refugee Applications Commissioner and Others

JurisdictionIreland
JudgeMr. Justice Herbert
Judgment Date27 May 2004
Neutral Citation[2004] IEHC 95
CourtHigh Court
Docket NumberHC 216/04
Date27 May 2004

[2004] IEHC 95

THE HIGH COURT

HC 216/04
[No. 629 J.R./2003]
H (D) v. REFUGEE APPLICATIONS COMMISSIONER & ORS
JUDICIAL REVIEW

BETWEEN

D.H.
APPLICANT

AND

REFUGEE APPLICATIONS COMMISSIONER, REFUGEE APPEALSTRIBUNAL AND MINISTER FOR JUSTICE, EQUALITY AND LAWREFORM
RESPONDENTS

Citations:

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

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S16(2)(D)

REFUGEE ACT 1996 S16(16)

REFUGEE ACT 1996 S13(1)

UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951 ART 1(A)(2)

UN CONVENTION AGAINST TORTURE & OTHER CRUEL INHUMAN & DEGRADING TREATMENT (1989)

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S11(2)

REFUGEE ACT 1996 S7(E)(II)

UNHCR HANDBOOK PAR 199

Z V MIN JUSTICE & ORS 2002 2 IR 135 2002 2 ILRM 215

UNHCR HANDBOOK PAR 196

UNHCR HANDBOOK PAR 195

HATHAWAY THE LAW OF REFUGEE STATUS 2001 PAR 3.2

MEMISHI V REFUGEE APPEALS TRIBUNAL UNREP PEAR 25.6.2003

AGWU V REFUGEE APPLICATIONS CMSR & ORS UNREP HERBERT 5.3.2004

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

INS V CARDONZA-FONSECA 467 US 407 (1987)

AKIPOTOR V MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY UNREP 4.10.2002 2003/2/347

SHIRAZI V SECRETARY STATE FOR THE HOME DEPARTMENT 2004 2 AER 602

BUJARI V MIN JUSTICE UNREP FINLAY-GEOGHEGAN 7.5.2003 2003/7/1414

PROTOCOL ON THE STATUS OF REFUGEES 1967

Z V MIN JUSTICE UNREP FINNEGAN 3.3.2001

HORVATH V SECRETARY OF STATE FOR THE HOME DEPARTMENT 2000 WLR 379 2000 3 AER 577 2000 INLR 15

KHAMIS V MIN JUSTICE UNREP SMYTH 24.6.2002 2002/1/29

AG, CANADA V WARD FCAD A1190-88 5.3.1990

Abstract:

Immigration - Asylum - Application for leave to seek judicial review - Standard of proof to be applied in asylum decisions - Approach to be adopted in relation to assessment of independent country of origin information in support of asylum claims - Whether fair procedures breached in assessment of asylum appeal - Illegal Immigrants Trafficking Act 2000, section 5.

Facts: the applicant's appeal against a recommendation of the first respondent refusing her refugee status had been refused by the second respondent. The applicant applied for leave to seek judicial review of that decision of the second respondent on the grounds, inter alia, that it was irrational, that there was an error of law on the face of the record and that the principles of fair procedures had been breached.

Held by Herbert J in dismissing the application that placing total reliance on reports furnished to governments or state departments of the USA or Great Britain was not always a sufficient compliance with the need to ascertain and evaluate all relevant circumstances in the country of origin of a particular applicant but, nevertheless, the second respondent had not acted in disregard of the guidelines contained in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status. The "balance of probabilities" was the requisite standard of proof in reaching decisions in asylum applications which the second respondent had more than met.

Fair procedures required that any material procured by or on behalf of the determinative body be furnished to the applicant and afforded a sufficient period of time within which to consider the material and to formulate a response to it if desired. However, the principle of audi alteram partem did not require the determinative body to debate its conclusions in advance of publication with the parties. The second respondent had adhered to that basic principle of natural and constitutional justice during all aspects of the appeal hearing. Some basis had to be advanced, however vague or uncertain, however much dependant on inference or hearsay, to support the alleged subjective fear of persecution alleged by a claimant for asylum.

Reporter: P.C.

1

Mr. Justice Herbertdelivered the 27th day of May,2004

2

This is an application for leave to seek Judicial Review, pursuant to the provisions of s. 5 (2) (a) of the Illegal Immigrants (Trafficking) Act, 2000, of the decision of the second named respondent confirming the recommendation of the first named respondent that the applicant's request for refugee status in this State pursuant the provisions of s. 2 of the Refugee Act, 1996, be refused.

3

The statement of grounds was delivered on 19 th August, 2003. At paragraph 8 of the grounding affidavit, sworn by the applicant on14 th August, 2003, and filed on 19 th August, 2003, the applicant accepts that she received, by registered post, notification of the Decision of the second named respondent, made17 th July, 2003. This notice, which is exhibited in the grounding affidavit of the applicant appears to be undated and there was no evidence as to when it was sent. However, no issue was taken at the hearing bythe respondents that the application was not made within the time allowed by s. 5(2)(a) of the Act of 2000.

4

The grounds upon which the applicant claims Judicial Review, as explained to the court by counsel for the applicant, appear to me to be as hereafter set out.

5

5.1. Now abandoned.

6

5.2. The member of the second named respondent acted unconstitutionally and contrary to law, in not excluding from the appeal, material recorded at the interview of the applicant by the Authorised Officer of the first named respondent, which concentrated unduly on the credibility of the applicant and on her means of travel from her country of origin to this State. This was in disregard of the UNHCR Handbook guidelines and at the expense of the material facts relevant to her application for refugee status in the State.

7

53. Now abandoned.

8

5.4, 5.6 and 5.17. The member of the second named respondent erred in law and failed to adopt, fair procedures by applying an incorrect burden of proof. In holding that the applicant must satisfy the Refugee Appeals Tribunal that she had a well-founded fear of persecution for one of the five reasons set out in s. 2 of the Refugee Act, 1996, he failed to apply a shared burden of proof. He applied an incorrect standard of proof by adopting a, "a reasonable degree of likelihood" standard rather than a "reasonable possibility" standard.

9

5.5. The member of the second named respondent erred in law andadopted unfair procedures in not properly evaluating the country of origin evidence to the extent that he failed to make any sufficient or proper independent check on that evidence through diplomatic or otheragencies.

10

5.7. In the conduct of the Oral Appeal the member of the second named respondent erred in law and failed to apply fair procedures by failing to observe the principle of Audi Alteram Partem, in that he did not put to the applicant the findings made by him or the inferences drawn by him from that evidence so as to afford her and her legal representatives an opportunity of addressing these matters

11

5.8 and 5.9. The finding of the member of the second named respondent that the lack of proper pre-natal and maternity care in the applicant's country of origin and, the fact that the Government of that country was either unable or unwilling to provide proper pre-natal and maternity care for the applicant, did not amount to, "persecution" within the meaning of section 2 of the Refugee Act, 1996, was irrational and unreasonable and contrary to constitutional and natural justice.

12

5.10 The member of the second named respondent erred in law and failed to adopt fair procedures in failing to consider that the applicant was suffering economic proscription sufficient to amount to, "persecution", within the meaning of s. 2 of the Refugee Act, 1996.

13

5.11, 5.12, 5.13 and 5.14. The member of the second named respondent erred in law and his decision was irrational and unreasonable in that he failed to find that the applicant, because of her membership of aparticular social group, namely poor rural dwellers with large families in the North East of her country of origin, had in fact suffered and sustained a systematic denial of basic human rights as an expectant mother, which the Government of that country would not, or could notprevent.

14

5.15. The member of the second respondent erred in law and his decision was irrational and unreasonable in failing to find that there was a reasonable degree of likelihood that the applicant would be persecuted if returned to her country of origin.

15

5.16. The member of the second named respondent adopted unfair procedures in failing to give reasons for his findings that he was not satisfied that the applicant has a well-founded fear of persecution for any one of the reasons set out in s. 2 of the Refugee Act, 1996.

16

The applicant arrived in this State on 9 th March, 2002. She formally sought asylum in the State as a refugee on 10 thMarch, 2002. On 21 st March, 2002, a child was born to the applicant in the State. On 20 th May, 2002, the applicant completed an "Applicant for Refugee Status" questionnaire. On 26 th July, 2002, she was interviewed by an Authorised Officer of the first named respondent. Following upon this interview a report was furnished by the Authorised Officer of the first named respondent and a recommendation was made by the first named respondent on the 19 th August, 2002, that the applicant be refused refugee status. Notice of this decision was given to the applicant on20 th September, 2002. On 18 th November, 2002, the applicant delivered a Notice of Appeal to the second named respondent against the recommendation of the first named respondent.

17

On 3 rd July, 2003, the member of the second respondent conducted an oral hearing of the applicant's appeal. The decision of the member of the second named respondent was made on 17 th July, 2003, and the applicant accepts that she was notified by registered post of this decision. The motion on notice for leave to seek Judicial Review, the statement of grounds, and the verifying affidavit were filed on 19 th August, 2003.

18

In his decision dated 17 th July, 2003, the member of the second named...

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