IG v Refugee Application Commissioner

• Jurisdiction: Ireland
• Judge: O'Donnell J,Ms. Justice Dunne
• Judgment Date: 16 May 2018
• Neutral Citation: [2018] IESC 25
• Date: 16 May 2018
• Court: Supreme Court
• Docket Number: [Appeal No. S:AP:IE:2017:000036] [Appeal No. S:AP:IE:2017:000038] [Appeal No. S:AP:IE:2017:000037]

[2018] IESC 25

THE SUPREME COURT

Dunne J.

Clarke C.J.

O'Donnell Donal J.

McKechnie J.

Dunne J.

O'Malley Iseult J.

[Appeal No. S:AP:IE:2017:000036]

[Appeal No. S:AP:IE:2017:000038]

[Appeal No. S:AP:IE:2017:000037]

BETWEEN

I.G.

APPELLANT

AND

REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

BETWEEN

F.G. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND I.G.)

APPELLANT

AND

REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

BETWEEN

AND

REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

Immigration and asylum – Refugee status – Judicial review – Appellants seeking to apply for judicial review of the respondent’s decision – Whether the trial judge properly applied the law concerning the obligation not to depart from a decision of a colleague judge of the same rank without sufficient reason

Facts: The appellants, nationals of Albania, each applied to the respondent, the Refugee Applications Commissioner (RAC), for refugee status. They were refused. The appellants were concerned as to the manner in which their applications for asylum were processed. As a result, an ex parte application for leave to apply for judicial review was made in separate proceedings by each of the appellants. Leave was refused in each case on foot of the judgment of the High Court (Humphreys J) of the 14th November, 2016 and a certificate of leave to appeal that decision was refused by the order of the High Court of the 13th February, 2017. The appellants made a “leapfrog” application for leave to appeal to the Supreme Court. In determinations of the 23rd June, 2017, the appellants were granted leave to appeal to the Supreme Court on the following grounds: (a) that the trial judge erred, in all the circumstances of the case, in determining that the appellants had not established substantial grounds for the contention that, on the evidence before the High Court, it was sufficiently arguable that the RAC had not itself carried out the investigation required by s. 11 of the Refugee Act 1996 in the manner required by that statute; and (b) that the trial judge did not properly apply the law concerning the obligation not to depart from a decision of a colleague judge of the same rank, without sufficient reason, as identified in Kadri v Governor of Wheatfield Prison [2012] 2 ILRM 392.

Held by Dunne J that the trial judge erred in deciding that the appellants had not established substantial grounds for their applications for leave to apply for judicial review. Dunne J was satisfied that in the circumstances of this case the trial judge erred in not following the decisions of his colleague to grant leave on the same issue where there was no apparent basis for him to come to a different view.

Dunne J held that, in the circumstances, she would allow the appeal and thus, the appellants were entitled to apply for judicial review of the decision of the RAC.

Appeal allowed.

Judgment of Ms. Justice Dunne delivered the 16 day of May 2018

1 F.G. and X.G. are the daughters of I.G. They are nationals of Albania. Each applied to the Refugee Applications Commissioner for refugee status. They were refused. Following the refusal of their applications for asylum, the appellants were concerned as to the manner in which their applications for asylum were processed. As a result, an ex parte application for leave to apply for judicial review was made in separate proceedings by each of the appellants. Leave was refused in each case on foot of the judgment of the High Court (Humphreys J.) of the 14th November, 2016 and a certificate of leave to appeal that decision was refused by the order of the High Court of the 13th February, 2017.

2 Curiously, the respondent was put on notice of the application for a certificate of leave to appeal to the Court of Appeal and was heard on that application, despite not having been put on notice for the originating application for leave, made as one would expect, on an ex parte basis, and which was refused on the 14th November, 2016 as mentioned previously. Even more curiously, an order for costs of the proceedings was made in favour of the respondent even though its participation was confined to the hearing on the application for leave to appeal. No doubt, no costs would have been incurred by the respondent in respect of the ex parte application for leave to appeal, nonetheless it does seem odd that an order was made for costs of the proceedings as a whole rather than simply in relation to the hearing at which the Refugee Applications Commissioner was present.

3 All three appellants having been refused leave to apply for judicial review and thereafter having been refused a certificate of leave to appeal made a ‘leapfrog’ application for leave to appeal to this Court. In determinations of the 23rd June, 2017, the three appellants were granted leave to appeal to this Court on the following grounds:

‘(a) That the trial judge erred, in all the circumstances of the case, in determining that I.G., [F.G. and X.G.] had not established substantial grounds for the contention that, on the evidence before the High Court, it was sufficiently arguable that the RAC had not itself carried out the investigation required by s.11 of the Refugee Act, 1996 in the manner required by that statute; and

(b) that the trial judge did not properly apply the law concerning the obligation not to depart from a decision of a colleague judge of the same rank, without sufficient reason, as identified by this Court in Kadri.’

The appeals in respect of each of the appellants came on for hearing together and for that reason it is appropriate to deliver a joint judgment in respect of the issues raised herein.

The issue that gave rise to the ex parte application for judicial review

4 The issue giving rise to the application for leave to apply for judicial review concerns the processing of applications for asylum. Section 11 of the Refugee Act 1996 provides for the Refugee Applications Commissioner (‘the RAC’) to investigate applications for asylum. Section 11(1) provides as follows:

‘(1) Where an application is received by the Commissioner under section 8 and the application is not withdrawn or deemed to be withdrawn pursuant to this section or section 9 or 22, it shall be the function of the Commissioner to investigate the application for the purpose of ascertaining whether the applicant is a person in respect of whom a declaration should be given.

(2) In a case to which subsection(1) applies, the Commissioner shall, for the purposes of that provision, direct an authorised officer or officers to interview the applicant concerned and the officer or officers shall comply with any such direction and furnish a report in writing in relation to the interview concerned to the Commissioner.’

It is provided in paragraph 9 of the First Schedule of the Act of 1996 as follows:

‘The Commissioner may delegate to any members of the staff of the Commissioner any of his or her functions under this Act save those conferred by section 7.’

Once an investigation is carried out by the RAC, he or she in accordance with the provisions of s. 13 of the Act of 1996, is obliged to

‘…prepare a report in writing of the results of the investigation … and shall set out the findings of the Commissioner together with his or her recommendation whether the applicant concerned should or, as the case may be, should not be declared to be a refugee.’

5 It would appear that in or around 2013, the RAC established a ‘case processing panel of legal graduates’ to perform the role of ‘case processing’ initially in relation to subsidiary protection claims. In 2015, the remit of this panel was expanded so that panel members would ‘process applications for refugee status and carry out other support work’. The ‘case processing panel members’ were engaged as contractors under a contract for services and were made up of solicitors, barristers or other law graduates.

6 Complaint is made as to the way in which the investigation mandated by s. 11 of the Act of 1996 was being carried out by panel members on the basis that the RAC had no power to delegate the functions under the Act to panel members. It was also pointed out that each ‘recommendation’ from the Commissioner to the Minister was accompanied not only by a s. 13 report (as was the norm prior to that) but also by a draft s. 13 report. It is contended that the two versions of the s. 13 report would invariably be identical to one another albeit that the ‘draft’ report was signed by a panel member whereas the ‘final’ report was signed by two civil servants. This is contrasted with the practice in relation to the Commissioner's responsibilities in relation to subsidiary protection or Dublin III transfer decisions. Accordingly, it is contended by the appellants that the only ‘investigation’ of their asylum claims and the only analysis of their credibility was one carried out by an outside contractor retained by the RAC. All that was done by the staff of the RAC was to amend the heading of the s. 13 report so as to remove the word ‘draft’ and to add to the body of the report the following statement:

‘I agree with and adopt/approve the draft findings of the panel member.’

7 The application for leave to apply for judicial review of the decision of the RAC in these cases is one to which the provisions of s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000, as amended, applies so that leave shall not be granted ‘unless the High Court is satisfied that there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed’. Not surprisingly, the respondent takes issue with the contention of the appellants that they have established substantial grounds in relation to the use by the RAC of independent contractors to carry out the investigative function provided for in s. 11 of the Act of 1996.

The judgment of the High Court

8 ...