Hakizimana v Minister for Justice Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 14 November 2006
• Neutral Citation: [2006] IEHC 355
• Court: High Court
• Docket Number: [2006 No.
• Date: 14 November 2006

[2006] IEHC 355

THE HIGH COURT

[No. 357 J.R./2006]

HAKIZIMANA v MIN FOR JUSTICE & ORS

JUDICIAL REVIEW

IN THE MATTER OF ARTICLE 40.3 OF THE CONSTITUTION AND IN

THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN

RIGHTS ACT 2003 SECTIONS 2, 3, 5 AND 6

BETWEEN

JEAN RYAN HAKIZIMANA

APPLICANT

AND

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

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S6

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(1)

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 196

Z v MIN JUSTICE 2002 2 IR 135 2002 2 ILRM 215

REFUGEE ACT 1996 S11(8)

REFUGEE ACT 1996 S13

IMMIGRATION ACT 2003 S7

DPP, PEOPLE v QUILLIGAN 1993 2 IR 305

LAVERY v MEMBER IN CHARGE CARRICKMACROSS GARDA STATION 1999 2 IR 390

R (MAPAH) v SECRETARY OF STATE FOR THE HOME DEPT 2003 TLR 1 2003 EWHC 306 (ADMIN)

R (DIRSHE) v SECRETARY OF STATE FOR THE HOME DEPT 2005 1 WLR 2685

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD v AG 1970 IR 317

REFUGEE ACT 1996 S11(2)

IMMIGRATION:

Asylum

Application for refugee status - Application procedure - Interview - Whether entitled to require interview to be recorded - Whether procedures comply with requirements of natural and constitutional justice - R (Dirshe) v Secretary of State [2005] EWCA Civ 421,[2005] 1 WLR 2685 and Mapah v Secretary of State for the Home Department [2003] EWHC 306 (Admin) distinguished - Refugee Act 1996 (No 17), s 11 - Constitution of Ireland, 1937, Article 40.3 - Relief refused (2006/357JR - Feeney J - 14/11/2006) [2006] IEHC 355H(JR) v Minister for Justice, Equality and Law Reform

The applicant asylum seeker sought a declaration based upon a decision of the Court of Appeal in England

that he was entitled to tape record his interview with the respondent or that the respondent was required by reason of fair procedures and natural and constitutional justice to tape record the interview. The respondents contended that fair procedures were already accorded to a sufficient degree to the applicant in the procedures.

Held by Feeney J. that the procedures in this country differed significantly to those in England. In this jurisdiction, the applicant was required to sign every page of an interview as being a true account thereof and the applicant was entitled inter alia to have his own legal representative present and had access to legal advice in advance of the interview.

Extensive appeal processes were provided for by way of statute and so the Court would decline the reliefs sought.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Feeney delivered on 14th day of November, 2006 .

2 The Applicant in this case arrived in Ireland from England in January of 2004. He is a national of Burundi and immediately upon arrival he sought asylum as a refugee. As part of the asylum process the Applicant was interviewed pursuant to s. 11 of the 1996 Act on the 15th and 30th August, 2005. That resulted in a recommendation from the commissioner that refugee status be refused. The Commissioner's recommendation was the subject of a judicial review application [No. 2005/1180 J.R.]. Those proceedings resulted in an agreement whereby on consent the Commissioner's recommendation was set aside. The settlement also provided that the report which had been prepared pursuant to s. 13(1) of the 1996 Act would be withdrawn and removed from the Applicant's file and it was agreed that a fresh consideration of an application for refugee status would be considered.

3 Thereafter, the Applicant was notified that in relation to his application for a declaration as a refugee that an interview would take place on Thursday, 23rd March, 2006 . That notification was forwarded to the Applicant by letter dated the 13th March, 2006 . Following consultation with his solicitors MacGeehin Toale Nagle they sent a letter on the Applicant's behalf dated the 21st March, 2006, in which it was stated:

"In previous High Court proceedings brought by our client, he has disputed the accuracy of the records of previous interviews. While his High Court proceedings have been settled, they were specifically settled by both sides on the basis that none of the grounds advanced were either conceded or withdrawn. In the circumstances, our client requires that the interview on the 23rd March, be electronically recorded in full rather than being merely reduced to writing by way of "notes of interview" or otherwise, and that a copy be provided to him as soon as possible after the interview. Alternatively, our client wishes to record the interview with his own equipment. Please confirm that you with (sic) either record the interview or permit it to be recorded."

4 The following day the office of the Refugee Applications Commissioner replied by letter dated the 22nd March, 2006, wherein it was stated in the second paragraph:

"The position is that it is not the policy of this office to electronically record interviews. In the circumstances we will not be acceding to your request."

5 The letter of the 22nd March, 2006, was faxed to the Applicant's solicitors who replied on the same date stating:

"Even if it is your policy not to record interviews, this does not impinge on the recording of the interview by the Applicant. We note that though you have stated in the telephone conversation that our client would not be permitted to record the interview although this is not specifically stated in your fax. If it is your policy that nobody is allowed to record the interview please confirm and please also state the reasons."

6 A notice of motion was duly issued within these proceedings on the 23rd March, 2006 and that motion duly came on for hearing on notice to the Respondents before the High Court and the Applicant was given leave to apply by way of judicial review for the reliefs set forth at paragraph (d), section A, 1, 2, 3 6, 7 and 9 in the statement of the grounds set forth at paragraph (e)1 and 5 therein. It was also ordered that the relief set forth at paragraph (d), section A(1) be amended by deleting legitimate expectations therefrom. The grounds for the application for judicial review considered by this court are set forth in the (amended statement grounding application for judicial review amended in accordance with the order of the High Court of the 6th April, 2006, dated the 19th April, 2006). It is the relief therein claimed on the grounds therein set out that this court has to consider.

7 The main issue to be considered relates to the request for the electronic recording of the interview of the Applicant to be conducted by the Refugee Applications Commissioner. The Applicant claims a declaration that he is entitled to make his own tape recording of the proposed interview or alternatively that the Applicant is entitled to require the second named Respondent to tape record the said interview and a further declaration is sought that the failure or refusal of the second named Respondent to tape record the interview or permit the Applicant to do so and/or to furnish the record to the Applicant prior to a decision being made, is contrary to the Applicant's rights under article 40.3 of the Constitution and/or is an unlawful exercise of the second named Respondent's statutory powers.

8 In the statement of opposition dated the 29th May, 2006, the Respondents contend that the Refugee Applications Commissioner is not required to record the interview with the Applicant and that the procedures of the Refugee Applications Commissioner in relation to the carrying out of interviews under s. 11 of the Refugee Act 1996(as amended) are fair and comply with the requirements of natural and constitutional justice.

9 The issue to be considered by this court is whether the procedures used by or intended to be used by the Refugee Applications Commissioner in carrying out the interview of the Applicant under s. 11 of the Refugee Act 1996are fair and comply with the requirements of natural and constitutional justice in circumstances where there is a refusal to record or to permit a recording of such interview. During the course of the hearing it was acknowledged by counsel on behalf of the Respondents that it was the policy of the second named Respondent that there would be no recording made nor would the Applicant be permitted to record the interview.

10 The procedures which apply to such interviews and applied to the Applicant's interview are as follows, namely:

11 (a) An Applicant who makes an application for refugee status is provided with an application form in an appropriate language. That form is available in 25 different languages. In the case of this Applicant his native language was Kirundi — Kinyarwanda also called Kinyarinanda and an application form in the French language was provided as the Applicant also spoke French.

12 (b) At the time of making an application an Applicant, as did this Applicant, signs a form known as the ASY1 form confirming that the information set forth in that form is correct and confirming that he has been given an opportunity to amend any inaccuracies. That form also confirms, the fact that the Applicant had received documentation/information namely an information leaflet for applicants for refugee status in Ireland, a questionnaire in connection with his application for a declaration as a refugee, change of address forms, a refugee legal service information leaflet and verbal advice of his right to consult a solicitor/UNHCR. This Applicant received the above documentation at the time of his initial arrival in Ireland on...