A (HH) (A Minor) v Refugee Applications Cmsr and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 02 October 2014
• Neutral Citation: [2014] IEHC 499
• Court: High Court
• Date: 02 October 2014

[2014] IEHC 499

THE HIGH COURT

[No. 466 J.R./2010]

A (HH) (a minor) v Refugee Applications Cmsr & Ors

JUDICIAL REVIEW

BETWEEN

H. H. A. (A MINOR SUING THROUGH HIS NEXT FRIEND THOMAS DUNNING)

APPLICANT

AND

THE REFUGEE APPLICATIONS COMMISSIONER, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

Order of Certiorari – Refugee – Credibility – Persecution - Trafficking – Irrationality – Constitutional Justice – Evidence – Decision-Making – Appeal – Language Reports

Facts: In the case at hand, the applicant, a Somali national of Bajuni ethnicity sought an order of certiorari in respect of a report and recommendation of the first named respondent dated 22nd February 2010, wherein it was recommended that the applicant should not be declared a refugee. The applicant also sought an extension of time. The applicant claimed that he had been persecuted on account of his ethnicity and that when his father was murdered he fled and managed to obtain a Tanzanian Passport in the name John Peter Thomas from a family friend (Mohammed), who then took him to the British Embassy. The applicant gave his fingerprints and a UK visa was issued to the applicant in the name of John Peter Thomas. He claimed that he flew to Ethiopia, and then to Ireland. Once in Ireland, Mohammed allegedly took the applicants travel documents, and went to a house where he stayed from July 2007 until December 2007. He was told not to go out and he just stayed indoors and watched television. On the 11 ^th December, the applicant was taken to the Refugee Applications Commissioner (hereinafter RAC) and told that he had to give false dates and a false account of his travel to Ireland. Following the necessary procedural assessments and procedures, it was stated by the respondents that the applicant only decided to come clean about his travel arrangements when the respondents were informed by the UK Border Authority that the fingerprints of the applicant matched those of a John Peter Thomas DOB 11th June 1998, who was a Tanzanian national and who presented in Dar Es Salaam on 26th July 2007, with his Passport and was given a six-month multi-visit visa for the United Kingdom. The applicant was informed of this information and it was the respondents” case that he only decided to tell the truth about his travel arrangements when that information had been furnished to him. The applicant alleged that there were a number of defects in the report issued by the first named respondent. The applicant made the case that he was treated by the respondent as a minor with a Date of Birth of 11th June 1992, and was placed in the care of the HSE. His view was simply that the identity given by the trafficker when obtaining a UK visa for the applicant must have been the applicant”s true identity and that that was absolutely determinative of the matter. It was submitted that that was unreasonable and irrational. On 5th October 2009, Sprakab , a Swedish language analysis company engaged by the respondents, found that the applicant spoke a variety of Swahili, found with certainty, not in Somalia but in Kenya. The applicant contended that the Sprakab report was deeply flawed and that the first named respondent ignored the internal inconsistency and relied on the report to establish that the applicant was not a Somali of Bajuni ethnicity who had lived on Chula Island. The applicant also made submissions in relation to his religion. He stated that he was a Muslim. The applicant complained that no attempt was made in the s. 13 report to reconcile this with the fact that the Tanzanian Passport was in the name of a Christian, and the finding that the applicant”s true name was John Peter Thomas. It was submitted that that was another example of the respondent unfairly preferring to base his findings on the applicant”s identity completely on the passport supplied by the trafficker, while totally ignoring all evidence against this. The applicant stated that in relying on the details in the Tanzanian passport, to the exclusion of all other contra-indicators, the first named respondent had opted for the shortest route possible to a conclusion on identity, in breach of natural and constitutional justice and that had resulted in an irrational and unsafe decision in the applicant”s case.

Held by Justice Barr that based on the evidence presented that he was satisfied that there was good and sufficient reasons as to why the 14-day period was not adhered to in this case. He reasoned that it was reasonable to allow the applicant to pursue his case and extended the time for instituting proceedings up to and including 16th April 2010. In light of the applicant”s submissions and having examined the evidence, Justice Barr was of the view that in analysing these apparent inconsistencies, the RAC had to weigh up different pieces of evidence in relation to each of the issues identified by the applicant. The weight to be attached to each of those factors was a matter for the RAC. Thus, he found no fault in the manner in which the Commissioner dealt with the evidence before him. Give that the Tanzanian passport of the applicant gave his date of birth as 11th June, 1988, Justice Barr stated that it was reasonable for the Commissioner to reach the decision that the applicant was an adult. He was entitled to come to the conclusion that given the inconsistencies in the applicant”s version of his travel to Ireland that he was not entitled to the benefit of the doubt. It was determined that the report could not be faulted for the findings in that regard. The Court was further satisfied that the findings made by the first named respondent were supported by the evidence. It was open to the first named respondent to conclude that the applicant only gave the true version about his travel details when he was informed of the UK border authority”s information on the basis of the fingerprints. Furthermore, Justice Barr reasoned that the respondent was entitled to have regard to the fact that even the ‘ new version’ of his travel to Ireland had inconsistencies which could not be explained. The Commissioner was entitled to the view that these further untruths further contributed to a negative credibility finding against the applicant. In respects of the visa applications, Justice Barr agreed with the submissions of the respondent, it was open to the first named respondent to reach the view that he did in relation to the issuance of the UK Visa, having regard to the applicant”s own account as to how he came to obtain it. In respects of the language analysis, Justice Barr concluded that the applicant had been given a fair opportunity to deal with the language analysis report. Consequently, it was reasoned that the Commissioner”s report could not be faulted on account of the way that he dealt with the Sprakab report. The Court further determined that it was satisfied that it was reasonable for the applicant to seek judicial review of the RAC report rather than proceed by way of appeal to the RAT. Thus, Justice Barr was satisfied that the applicant had failed to establish that there were good grounds to quash the report and recommendation of the first named respondent dated 22nd February, 2010. Accordingly, he refused the applicant”s claim to relief.

Introduction

1 1. In this telescoped hearing, the applicant seeks an order of certiorari in respect of a report and recommendation of the first named respondent dated 22 ^nd February 2010, wherein it was recommended that the applicant should not be declared a refugee. The applicant has set out a number of grounds on which he alleges that the s. 13 report of the first named respondent is defective and unlawful.

2 2. Before coming to the matters which are in issue between the parties to the proceedings, it is necessary to deal with the issue of the extension of time.

Extension of Time

3 3. It appears that the applicant received notification of the report and recommendation of the first named respondent by letter dated 1 ^st March 2010. The notice of motion appears to have been issued on 16 ^th April 2010. This was approximately one month outside the 14-day period provided for under s. 5 of the Illegal Immigrants (Trafficking) Act 2000. This delay is dealt with in the affidavit sworn by the applicant's solicitor, Mr. Albert Llussa Itorra, sworn on 13 ^th April 2010.

4 4. According to the applicant's solicitor, the delay occurred in the following manner: on 3 ^rd March 2010, Mr. Llussa Itorra was referred the applicant's asylum appeal by the Refugee Legal Service (RLS) private practitioner scheme. The earliest time that a consultation could be arranged to suit the applicant's social worker and the deponent was on Monday 15 ^th March 2010. On that morning, the applicant's solicitor received a phone call from the applicant's social worker, informing him that the applicant had been admitted into a hospital A& E Department and that the appointment had to be cancelled. The solicitor was instructed by the social worker to draft a Notice of Appeal and to consider possible grounds for judicial review. The solicitor submitted a Notice of Appeal to the third named respondent and then formed the view that there might be grounds for judicial review.

5 5. Counsel was instructed on 16 ^th March 2010, and advised on 26 ^th March 2010 that there were grounds for review.

6 6. On Friday 30 ^th March 2010, the solicitor wrote to the applicant and the HSE, informing them that counsel had advised that there were grounds for review in this case and asked them to contact him immediately if they wished to arrange an appointment to discuss the matter. An appointment was requested and the earliest that the parties could meet was on Wednesday 7 ^th April 2010. Mr. Llussa Itorra was out of the country on Thursday 1 ^st April 2010, and the firm...