K (K) v Refugee Appeals Tribunal (Hurley)

• Jurisdiction: Ireland
• Judge: Mr. Justice McGovern
• Judgment Date: 22 May 2007
• Neutral Citation: [2007] IEHC 148
• Docket Number: [No. 737 J.R./2005]
• Court: High Court
• Date: 22 May 2007

K (K) v REFUGEE APPEALS TRIBUNAL (HURLEY)

IN THE MATTER OF ILLEGAL IMMIGRANTS (TRAFFICKING) ACT,

2000, THE REFUGEE ACT, 1996 AS AMENDED

AND IN THE MATTER OF JUDICIAL REVIEW

BETWEEN

K.K.

APPLICANT

AND

PATRICK HURLEY ACTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

FIRST NOTICE PARTY

AND

IRELAND AND THE ATTORNEY GENERAL

SECOND NOTICE PARTY

[2007] IEHC 148

[No. 737 J.R./2005]

THE HIGH COURT

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

REFUGEE ACT 1996

B-M (A) v MIN JUSTICE & INTERIM REFUGEE APPEALS AUTHORITY & AG UNREP O'DONOVAN 23/7/2001 2001 1 267

Mr. Justice McGovern

1 This judgment is circulated in redacted form to avoid identification of the parties

2 1. The applicant is a national of the Ivory Coast who was born on the 24th September, 1954. He was married and had five children in that marriage. His wife died in 1997. There is some confusion as to whether he is married to his current partner. In his affidavit granting the application he says that he resides with his "second wife", N.R.E. in L. and that they have one child (a son) his date of birth is the 1st March, 2003. In the questionnaire completed in connection with his application for refugee status on the 9th January, 2003 he says that his "present marital status" is unmarried but refers to a marriage by ethnic rite and goes on to describe his spouse or partner as N.R.E. He also says "I have five children by my female common law partner who died in 1997". It has to be said that his marital status is somewhat unclear from the information which he has provided.

3 2. The applicant applied for asylum in this jurisdiction on the 23rd December, 2002. He was interviewed on the 4th March, 2003 and was subsequently found by a Refugee Applications Commissioner not to be a refugee. He appealed against this decision and the Refugee Appeals Tribunal held an oral hearing on the 15th February, 2005. The Tribunal found that the applicant was not a refugee and at the conclusion of the Tribunal Report the Member stated:

"I find the applicant's account unsatisfactory in terms of credibility and substance".

4 The applicant has challenged the decision to refuse him refugee status. On the 20th day of November, 2006 the applicant was granted leave to apply for judicial review for the reliefs set forth in a draft amended statement approved by the court on the following grounds:-

5 2 "1. The respondent's decision contains several errors on the face of the record in particular:

6 (i) The applicant's attempt to visit his father at the town of I., his failure to go to that town because of reports he had received from people fleeing from I. to the effect that rebels were in control in that town, burnt down his father's house and were looking for him.

7 (ii) The applicant's inability to return to his home town of B. because rebels were there going from house to house killing non-Muslims.

8 (iii) The issue in relation to two guns held by his father in his house and how that was interpreted by the Tribunal Member.

9 (iv) The issue in relation to his separation from his children and his partner.

10 (2) In the premises the decision of the respondent's (sic) was based on a flawed view or on a misunderstanding of the evidence".

11 3. In granting the applicant leave to apply for judicial review Dunne J. stated:

"I am conscious of the fact that a court in looking at matters of credibility should be careful not to interfere with a decision on credibility given that the court has not had the opportunity that the Tribunal Member has had a viewing in assessing the applicant directly…".

12 4. It seems to me that is especially the case where the applicant has been granted an oral hearing which is what occurred in this case. The legislature has put in place a particular regime for challenging decisions made in the asylum process. It is the Refugee Appeals Tribunal and not the courts which act as the forum for an appeal from a decision of the Refugee Applications Commissioner. The Illegal Immigrants (Trafficking) Act, 2000 permits an applicant to question the validity of certain matters, including a decision to refuse refugee status but specifies that this must be done by way of an application for judicial review. That means that where an issue has been decided against an applicant on the facts - whether arising on a credibility issue or otherwise - the applicant will have to show that there was some issue involving want of fairness or a breach of natural or constitutional justice, or that the manner in which the respondent assessed the evidence was outside the powers granted to him, in other words ultra vires. It is not the function of the courts, in an application for judicial review, to substitute its view on the facts for those of the Commissioner or the Tribunal.

13 5. I have considered the evidence in this case and the submissions made by counsel for the applicant and the respondents.

14 The applicant in his submission states:

"The s. 13 report at page 2 states that the applicant decided to visit his father as he was worried for his safety".

15 7. He says that this is factually incorrect because the interview shows that when he heard the rebels had taken control of I. he wanted to go there to visit his father because he is very old. It seems to me that this amounts to the same thing. What other reasons would he have for wanting to visit his father on the basis that he was very old and that rebels and taken over control of the area where he lived other than out of concern for his safety? Certainly I see nothing inconsistent in the interpretation given by the Commissioner to the evidence. This is a submission which is directed towards the s. 13 report of the Commissioner. No allegation is made that the decision of the Tribunal (the first respondent) contains an error of fact on this issue.

16 8. The applicant complains that at paragraph 4(2) of the s. 13 report the Commissioner is factually incorrect in stating that the town of I. where the applicant...