L.D. v The Refugee Appeals Tribunal and the Minister for Justice Equality and Law Reform

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice McGovern,MR. JUSTICE HEDIGAN
Judgment Date11 November 2008
Neutral Citation[2008] IEHC 351,[2006] IEHC 218
Date11 November 2008
Docket Number[2005 No.

[2006] IEHC 218

THE HIGH COURT

[No. 717 JR/2005]
DARJANIA v REFUGEE APPEALS TRIBUNAL (O'BRIEN) & MIN FOR JUSTICE
JUDICIAL REVIEW

BETWEEN

LANZIRA DARJANIA
APPLICANT

AND

ELIZABETH O'BRIEN (SITTING AS THE REFUGEE APPEALS TRIBUNAL) AND THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
RESPONDENTS

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S13(6)(C)

REFUGEE ACT 1996 S13(5)

OXFORD HANDBOOK OF GENERAL PRACTICE

REFUGEE ACT 1996 S16(2)

REFUGEE ACT 1996 S13(6)

MOYOSOLA v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP HIGH COURT CLARKE 23.6.2005 2005/40/8261

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S16

REFUGEE ACT 1996 S22

IMOH & ORS v REFUGEE APPEALS TRIBUNAL UNREP CLARKE 24.6.2005 2005/31/6393

KARANAKARAN v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2000 3 AER 449

E v SECRETARY OF STATE 2004 QB 531

JANUZI v SECRETART OF STATE 2006 2 WLR 397

OKEKE v MIN JUSTICE UNREP PEART 17.2.2006

HATHAWAY THE LAW OF REFUGEE STATUS 1991

BUTLER v AG 1999 NZAR 205

IMMIGRATION

Asylum

Appeal - Oral hearing - Whether applicant entitled to oral hearing - Whether within power of Refugee Appeals Tribunal to grant oral hearing - Internal relocation - Whether correct test applied - Whether internal relocation inherent in definition of refugee - M v Refugee Appeals Commissioner [2005] IEHC 218 (Unrep, Clarke J, 23/6/2005); E v Secretary of State [2006] UKCA Civ 1032, [2004] QB 531; I v Refugee Appeals Tribunal [2005] IEHC 220 (Unrep, Clarke J,24/6/2005); Okeke v Minister for Justice [2006] IEHC 46 (Unrep, Peart J, 17/2/2006) and Januzi v Secretary of State [2006] UKHL5, [2006] 2 WLR 397 considered - Karanakaran v Secretary of State [2000] 3 All ER 449 not followed - Refugee Act 1996(No 17), ss 13(6)(c) and 16(2) - Illegal Immigrants (Trafficking) Act 2000 (No 29), s5 - Relief refused (2005/717JR - McGovernJ - 7/7/2006) [2006] IEHC 218, [2006] 3 IR 439

D(L) v Refugee Appeals Tribunal

The applicant applied for judicial review of the decision of the first respondent. The applicant contended that the first respondent failed to correctly apply the tests in relation to the issue of internal relocation. The applicant also contended that she had been deprived of an oral hearing in her appeal to the RAT.

Held by McGovern J. in the refusing the reliefs sought that the first respondent did not err in law in holding that the applicant did not suffer from a well founded fear of persecution in view of the option of internal relocation. The first respondent was not acting ultra vires in dealing with the case without an oral hearing.

Reporter: P.C.

1

JUDGMENT of Mr. Justice McGovern delivered on the 7th day of July, 2006

2

This is an application for judicial review pursuant to an order of the High Court made on the 7th November, 2005, giving the Applicant leave to apply for judicial review for the reliefs set forth at paragraph D 1, 2, 3, 4, 8 and 9 in the statement required to ground an application for judicial review and on the grounds set forth in paragraph E of the said statement. The Applicant was born in Abkhazia in 1971. Abkhazia is a region within the state of Georgia, formally a part of the Soviet Union. In 1992, the Georgian government sent troops into Abkhazia and in fighting between the two states the Abkhazian's defeated the Georgian troops. As a result of this all Georgian's living within Abkhazia were forced to leave. In 1990 the applicant married a Georgian man and they had a son who was born in Abkhazia. She says that as a result of the war between Abkhazia and Georgia there was much hatred between the two peoples and she found herself hated by both sides since she was an Abkhazian married to a Georgian. She fled with her husband and son into Georgia but was only able to stay there for two months before being forced to return to Abkhazia with her son. Her husband remained in Georgia and she sent her child to see him there on several occasions and she also travelled to Georgia approximately twice a year but says she was too fearful to remain given the hatred between the two people. She says that herself and her son were subjected to persecution in Abkhazia because of the fact that she had married a Georgian man and her son was Georgian. She gave evidence that she was beaten while pregnant in 1997 and lost her unborn child and she also says that she was raped on numerous occasions and that her son was beaten and was tortured on one occasion and that threats of rape were made against her son.

3

The Applicant arrived in Ireland on 21st May, 2004 having left Georgia on 30th April, 2004. On 22nd June, 2004, she applied for asylum. In doing so she completed a questionnaire. She was interviewed in relation to her asylum application on 16th December, 2004. In response to her question as to what motivated her to return to Abkhazia she stated that "we felt hatred." People used bad language towards us. My son was beaten up a few times. It was just the attitude in general — it felt like they looked at you with hatred in their eyes. It was other children and teenagers who beat up my son. In response to one question in a questionnaire she said that she had stayed in Georgia for seven years but when questioned at interview said that there were periods she spent in Georgia and sometimes she sent her son to her husband there and returned roughly twice a year for maybe a week or two. In response to other questions she said that her son would stay in Georgia with her husband sometimes for a week or two and sometimes for a month.

4

The Refugee Applications Commissioner found that the Applicant had not established that she had a well founded fear of prosecution as defined under s. 2 of the Refugee Act 1996, as amended, and further decided that s. 13(6)(c) of the Act applied by reason of the Applicants failure, without reasonable cause to make an application as soon as reasonably practicable after arrival in the State. As a result of that finding the Applicant's subsequent appeal to the Refugee Appeal Tribunal was one without an oral hearing.

5

Having heard submissions on behalf of both parties and read the affidavits of the statement required to ground an application for judicial review it seems to me that the issues which arise in this application are as follows:

6

i "(i) the issue of internal relocation and whether the first named respondent failed to correctly apply the tests set out in both case law and the U.N.H.C.R. guidelines concerning the option of internal relocation. The applicants submits that the first named respondent failed to take into account the evidence given by the applicant of subjective difficulties which are personal to her as an Abkhazian woman married to a Georgian man, with a son who is viewed by Georgians as a Abkhazian and that her decision that for the applicant to relocate to another part of Georgia would be neither unreasonable nor unduly harsh cannot be allowed to stand;

7

(ii) The first named respondent did not give any consideration or proper consideration to the effect of internal relocation on the applicants dependent son given the difficulties he had experienced in another part of Georgia and given the fact that his claim was to be decided on foot of the applicants claim;

8

(iii) The first named respondent acted ultra vires and in excess of her jurisdiction in that she failed to consider the appeal within the jurisdiction given to her and in particular in dealing with the case on papers only under s. 13(5) because the Refugee Applications Commissioner had included in his recommendation a finding "that the applicant, without reasonable cause, failed to make an application as soon as reasonably practicable after arrival in the State".

9

The Applicant was therefore deprived of an oral hearing.

10

It seems to me that I should deal with the last of the above issues first. My decision on that issue may have a bearing on the other matters.

SECTION 13(6)(c) ISSUE
11

The Refugee Applications Commissioner in making his report made a finding under s. 13(6)(c) namely "that the applicant, without reasonable cause, failed to make any application as soon as reasonably practicable after arrival in the State". This finding was appealed to the Refugee Appeals Tribunal on the basis that the Applicant was ill and due to medical difficulties was unable to make her application upon arrival. She stated that she had been held in the store room of a ship for the duration of her journey to Ireland and that on arrival she was in a poor medical condition. Medical evidence was produced which indicated that she was suffering significant symptoms of post traumatic stress disorder including flashbacks nightmares depression, insomnia and feeling that someone is going to attack her from behind. She would lock herself in her room wanting to be alone and she was constantly anxious. There was also medical evidence that she had other problems such as a rash all over her body and was suffering from recurrent infections, heartburn, dry mouth and abdominal pain. The medical opinion furnished by Dr. Julie McMahon states "this lady displayed symptoms of severe P.T.S.D. plus anxiety and depression as quoted by Oxford Handbook of general practice." She referred her on to other medical experts including a psychiatrist and an expert in infectious disease. A doctor indicated that the Applicant's son had suffered similarly and would need referral to other experts.

12

I am satisfied that the first named Respondent did not consider the issue of delay and whether in fact the application was made "....as soon as reasonably practicable" after the Applicant arrived in the State. The Respondents have submitted that the Refugee Appeals Tribunal's jurisdiction to make decisions is confined by s. 16(2) to either (a) affirming recommendation of the...

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