J.N. v Minister for Justice

• Jurisdiction: Ireland
• Judge: MR. JUSTICE BIRMINGHAM
• Judgment Date: 04 June 2008
• Neutral Citation: [2008] IEHC 214
• Docket Number: [2006 No. 636
• Court: High Court
• Date: 04 June 2008

N (J) v Min for Justice & Refugee Appeals Tribunal (O'Brien)

BETWEEN

J.N.

APPLICANT

AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM and ELIZABETH O'BRIEN, SITTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

[2008] IEHC 214

[636 JR/2006]

THE HIGH COURT

IMMIGRATION

Asylum

Refugee Appeals Tribunal - Breach of fair procedures - Duty to give reasons - Whether tribunal erred in failing to allow submissions based on earlier linked case - Whether tribunal ought thereafter to have reopened case to hear witness - Whether tribunal failed to address material factors in reaching decision - Whether tribunal failed to give adequate reasons for decision - M v Refugee Applications Commissioner (Unrep, Smyth J, 25/6/2002) distinguished; F v Refugee Appeals Tribunal [2005] IEHC 423, (Unrep, O'Leary J, 21/12/2005) followed - Relief granted (2006/636JR - 4/6/2008) [2008] IEHC 214

N(J) v Minister for Justice

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

FASAKIN v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP O'LEARY 21.12.2005 2005/25/5110 2005 IEHC 423

ATANASOV & ORS v REFUGEE APPEALS TRIBUNAL & ORS UNREP MACMENAMIN 7.7.2005 2005/50/10529 2005 IEHC 237

ATANASOV & ORS v REFUGEE APPEALS TRIBUNAL & ORS 2007 1 ILRM 288

1 The applicant in this case was, on 22 ^nd February, 2008, granted leave by McKechnie J. to seek judicial review of a decision of the Refugee Appeals Tribunal ("RAT"). This is a case to which section 5 of the Illegal Immigrants Trafficking Act applies. Accordingly, in granting leave, McKechnie J. was concluding that there were substantial grounds for contending that the RAT decision in question was invalid. As it happens, no additional information has been put before the Court since leave was granted so today we have had, essentially, a re-argument of the issues that were already fully argued before McKechnie J.

The Factual Background

2 The applicant in this case states that she is a Ugandan national who came to this country on 16 ^th July, 2005. Thereafter, an application for asylum was submitted. She was interviewed in relation to the claim on 23 ^rd August, 2005 and, on 2 ^nd September, 2005, the Office of the Refugee Applications Commissioner ("ORAC")issued a recommendation that the applicant not be declared a refugee. I pause to say that the recommendation/decision is a very careful one involving a close analysis of issues relating to credibility.

3 From this unfavourable decision, the applicant appealed. An oral hearing was originally scheduled for November 2005 but the listing was adjourned to 5 January, 2006. It seems that this adjournment was at the request of the applicant's legal advisors. The Tribunal Member to whom the case was assigned issued her decision on 3 ^rd May, 2006, which affirmed the recommendation of ORAC that the applicant not be declared to be a refugee.

4 The circumstances in which that decision is now challenged are as follows. Central to the applicant's claim for asylum was that she was a political activist in Uganda. Arising from her political activities she suffered ill-treatment, including rape at the hands of agents of the Government. In particular, it was said that she was a member or certainly a supporter of the Forum for Democratic Change. She has not been entirely consistent as to her precise role with that organisation and that she was also in an organisation known as the Women's Action for Development group ("WAD"). In the case of this organisation, she was claiming to have worked for them as an employee over a pretty extended period.

5 In an impressively argued decision, the Tribunal Member concluded that the account that was being advanced was not credible. Of particular significance is the fact that she was not satisfied that the applicant had the level of involvement claimed with the WAD. Indeed, it is clear from the decision that the Tribunal Member is deeply sceptical about the existence of that organisation.

6 It is also clear from the decision of the Tribunal that there are quite a large number of areas where the applicant was found was not to be credible. However, it isequally clear that core or central to the applicant's claim, to use the language of the decision itself, was the claim of the applicant that she was an activist of WAD. The Tribunal Member was unable to accept this proposition. The particular relevance of this in the context of the present challenge is that the applicant travelled to Ireland along with a companion, Miss K, who also claimed asylum. It does not seem to be in doubt that Miss K was also claiming to have been a member of WAD, and to have been politically active alongside the applicant. A claim for asylum by Miss K was successful in that ORAC recommended that she be declared a refugee. This recommendation issued on 15 ^th December, 2005. While I have not seen the recommendation in Miss K's case, both counsel were of the view that it wasn't necessary that I should do so. It seems beyond doubt that the authorised ORAC officer in that case must have accepted that WAD existed and that Miss K had an active involvement with it.

7 At the oral hearing on 5 ^th January, 2006, the counsel who was then appearing, who is not the same counsel who appears in these judicial review proceedings, sought to refer to the favourable outcome of Miss K's application, which was seen as a related case. However, the Tribunal Member declined to permit submissions or indeed, as far as I gather, any reference to the Miss K case. Apparently this was because of concerns on the...