L (v C B)(No. 2) v Refugee Appeals Tribunal & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 16 November 2010
• Neutral Citation: [2010] IEHC 362,[2010] IEHC 408
• Court: High Court
• Date: 16 November 2010

[2010] IEHC 362

HIGH COURT

[No. 1117 JR/2008]

L (V C B) v Refugee Appeals Tribunal & Ors

[2010] IEHC 362

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

V. C. B. L.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL, CHAIRPERSON OF THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

B-M (A) v MJELR UNREP O'DONOVAN 23.7.2001 2001 IEHC 110

CIE v BORD PLEANALA UNREP CLARKE 19.6.2008 2008/8/1508 2008 IEHC 295

HOLLAND, STATE v KENNEDY 1977 IR 193

CUNNINGHAM, STATE v O'FLOINN 1960 IR 198

SIMPLE IMPORTS v REVENUE CMSRS 2000 2 IR 243

REFUGEE ACT 1996 S2

IMMIGRATION

Asylum

Ethnic and political persecution - Credibility - Misnaming country of origin - Material error of fact - Substantial grounds - Whether mistake of fact was so material to substantive analysis and consideration as to vitiate its validity - Whether actual misunderstanding or misconception - Whether decision contrary to natural justice and fair procedures - Whether error on face of record - B-M (A) v Minister for Justice (Unrep, O'Donovan, 23/7/2001); State (Cunningham) v O'Floinn [1960] IR 198 and Simple Imports v Revenue Commissioners [2000] 1 IR 243 considered - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Refugee Act 1996 (No 17), s 2 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 5(1)(a) - Leave refused (2008/1117JR - Cooke J - 15/10/2010) [2010] IEHC 362

L (VCB) v Refugee Appeals Tribunal

1 1. This is an application for leave to seek judicial review of a decision of the Refugee Appeals Tribunal ("The Contested Decision") dated 16 ^th September, 2008, which affirmed a negative recommendation upon an application for asylum by the above-named applicant made by the Refugee Appeals Commissioner in a report dated 20 ^th November, 2006.

2 2. The Contested Decision rejects the claim made by the applicant to fear persecution if returned to his country of origin upon the same ground as that given by the Commissioner in the report namely, a lack of credibility in the account which the applicant gave of having fled because of discrimination he had suffered as a member of a particular ethnic group and more importantly because of persecution by reason of his imputed association with the political activities of his father.

3 3. The applicant is a native of the Republic of Congo (Brazzaville) the former French colony but now a state which is to be distinguished from the neighbouring former Belgian colony, the Democratic Republic of Congo. The applicant claimed that his father had been a politician and a member of the Pan-African Union for Social Democracy (UPADS). He said his father had been imprisoned for his political activities but escaped to the Ivory Coast. According to the applicant his mother and sister had been killed by Cobra Rebels.

4 4. The Contested Decision is distinguished by two features. First, it refers in its title and at several places in the body of the text to the applicant as having "DR Congolese" nationality and his country of origin as being "DR Congo". The opening sentence of the summary of his claim set out in s. 3 reads: "This applicant said he was from the Democratic Republic of Congo." The following sentence reads: "He was born in Brazzaville."

5 5. Not surprisingly, this admitted mistake constitutes the primary basis for the substantial ground put forward as requiring that the decision be quashed as unsound. It is submitted that this is an error on the face of the record which makes the decision unsafe; which goes to the heart of the Tribunal's jurisdiction in the appeal and therefore renders the decision invalid.

6 6. The second feature of the case strongly relied upon is that there has been an excessive delay in the determination of the appeal following the oral hearing. The hearing by the Tribunal member took place on 15 ^th February, 2007 but the Contested Decision did not issue until 16 ^th September, 2008 - a delay of 19 months. That this delay was excessive is accepted by the respondents. The applicant had complained about this delay to the Tribunal member when a year had elapsed following the hearing and, in the absence of a response from the Tribunal member, gave notice in September, 2008, of an intention to apply for judicial review in order to compel the Tribunal to determine the appeal. That proceeding (2008 No. 1040 JR) was then initiated but shortly thereafter was overtaken by the issue of the Contested Decision and proceeded no further.

7 7. Thus, the second ground advanced is to the effect that the long delay renders the Contested Decision unlawful because it has been adopted in breach of the applicant's rights to natural justice and fair procedures. It is also argued that the delay caused or contributed to the mistake of fact made by the Tribunal member as to the country of origin. Supplementary grounds are also advanced to the effect that the Tribunal failed to consult and to take account of up-to-date information relating to the conditions in the country of origin. This argument is directed at the fact that the finding of lack of credibility at para. 6 (a) of the Contested Decision relies upon information to the effect that the political movement or party (UPADS) which the applicant said was the target of repression and the source of the political persecution which he feared, had, since elections in 2002, no longer been suppressed but had become part of the political process.

8 8. The issue before the Court on the present application, accordingly, is whether these constitute "substantial grounds" warranting the grant of leave for the purposes of s. 5 of the Illegal Immigrants (Trafficking) Act 2000.

9 9. While it is undoubtedly true that the applicant is a native of the Republic of Congo (Brazzaville) and that the references in the Contested Decision to the DRC are incorrect, this cannot be said, in the Court's judgment, to constitute a mistake of fact which is so material to the substantive analysis and consideration in the Contested Decision as to vitiate its validity. In reality, this Tribunal member has given an incorrect title to the country of origin in question but does not appear to have made any mistake in understanding the identity of the particular state to which the facts, events and alleged persecution related. It is a mistake as to the correct name of two similarly named and neighbouring countries. Indeed, as counsel for the respondents pointed out, the same mistake was also made by the applicant's own legal representatives (The Refugee Legal Service) when writing during 2008 on his behalf. Their letters too, describe the applicant as being a native of the Democratic Republic of Congo.

10 10. More importantly, however, it is clear from the body of the decision that the Tribunal Member made no mistake as regards the details and substance of the case before him. The exposé of the factual background of the claim including the recital of the history and events, the description of the locations, ethnic groups and persons referred to by the applicant, are all correctly described. The events are recounted as having occurred in Brazzaville or other locations within the Republic of Congo and not as having taken place in Kinshasa or at locations identifiable as within the DRC. The political party is the UPADS and the elections are those which took place in the Republic of Congo in 2002.

11 11. The Court is therefore satisfied that, notwithstanding the misnaming of the country of origin, there has been no material error of fact which could be argued to raise an implication that there had been an actual misunderstanding or misconception on the part of the Tribunal member which vitiated his assessment of the claim and evidence before him in the appeal.

12 12. In support of this ground, reliance has been placed by counsel for the applicant on the judgement of the High Court in A.B.-M. v. MJELR (Unreported, O'Donovan J., 23 ^rd July, 2001) as authority for the proposition that a mistake by the administrative decision maker as to the identity of the country of origin is a material error which renders the Contested Decision invalid. Coincidentally, the asylum seeker in that case had been referred to in the relevant decision as being from the DRC when he, too, was a native of the Republic of Congo. However, a judgment does not become an authority on a point of law by reason only of a coincidence of facts. The Court has not found this judgment to be of material assistance to the issue that arises in the present case for the following reason.

13 13. It is striking that the judgment in question contains no indication of the basis upon which the asylum claim had been made or of the particular type of persecution claimed to have been feared. It is not apparent therefore what connection existed between the identity of the country of origin of the applicant and the ground upon which the claim for asylum had been rejected. It was accepted by the parties that there had been a mistake in naming the country of origin in the decision but without knowing the basis of the claim it is not possible to understand why, as a matter of law, such an error of fact necessarily jeopardised the validity of the decision to refuse a declaration of refugee status. The learned High Court judge seems to have approached the matter in the following manner:

· He accepted the principle from C.I.E. v. An Bord Pleanála to the effect that an error of fact is not a ground for certiorari unless it produces an error of law; that the mistake must result in the decision maker thereby giving itself a jurisdiction it would not otherwise have;

· He had regard also to the judgment of Henchy J. in State (Holland) v. Kennedy [1997] I.R. 193, to the effect that a tribunal...