M.B. v Olive Brennan and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Colm Mac Eochaidh |
| Judgment Date | 09 April 2013 |
| Neutral Citation | [2013] IEHC 168 |
| Court | High Court |
| Date | 09 April 2013 |
[2013] IEHC 168
THE HIGH COURT
BETWEEN
AND
AND
AND
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000
RSC O.84
KHAZADI v MIN FOR JUSTICE UNREP MACMENAMIN 2.5.2006 2006/38/8020 2006 IEHC 175
UNHCR HANDBOOK PARA 201
K (G) v MIN FOR JUSTICE 2002 1 ILRM 81 6.3.2001 2001/13/3546 2001 IEHC 29
S (C ) v MIN FOR JUSTICE 2005 1 IR 343
K (G) v MIN FOR JUSTICE 2002 2 IR 418
EMMANUEL (OHE) v REFUGEE APPEALS TRIBUNAL UNREP CLARK 7/7/2009 (TRANSCRIPT UNAVAILABLE)
REFUGEE ACT 1996 S11
REFUGEE ACT 1996 S13
REFUGEE ACT 1996 S8
A (CI) v MIN FOR JUSTICE & ORS UNREP IRVINE 30.6.2009 2009/1/103 2009 IEHC 281
A & ANOR v REFUGEE APPLICATIONS COMMISSIONER 2009 2 IR 231 2008/1/43 2008 IEHC 440
IMMIGRATION LAW
Leave
Refusal of refugee status - Negative credibility findings - Extension of time - Whether substantial argument made that credibility findings based on error - Whether appropriate to extend time - A(J) v Refugee Applications Commissioner [2008] IEHC 440, (Unrep, Irvine J, 3/12/2008) and A(CI) v Minister for Justice, Equality and Law Reform [2009] IEHC 281, (Unrep, Irvine J, 30/6/2009) considered - Illegal Immigrants (Trafficking) Act 2000 (No 29) - Leave granted (2009/69JR - MacEochaidh J - 9/4/2013) [2013] IEHC 168
B(M) v Brennan
Facts The applicant had claimed asylum on the basis of an imputed political opinion and membership of a particular social group. In addition the applicant had claimed that she had been raped following the outbreak of war. The applicant”s claim was rejected on the basis of the lack of credibility of her story. Judicial review proceedings were instituted seeking to quash the decision. It was submitted that the first respondent was in breach of natural and constitutional justice by failing to grant an adjournment of the hearing to enable the applicant to obtain a medical report. It was contended that an application to cross-examine an official was unfairly refused by the Tribunal and that the Tribunal had erred in failing to assess the medical reports and other information submitted in a meaningful way. The applicant also sought an extension of time for the making of the judicial review application. In respect of the delay that had occurred it was contended that the circumstances which led to the delay were beyond her control.
Held by Mac Eochaidh J in granting leave to seek judicial review: A substantial argument had been made that at least part of the credibility findings were based on error, or misconception, of fact and the applicant had mounted sufficient criticism of these findings to warrant a grant of leave to pursue this point by way of judicial review. The court was not persuaded that substantial grounds had been advanced in connection with the complaints relating to medical reports. The respondent was entitled to discount the brutal incidents which had occurred as the incidents in question happened many years before the applicant”s core claim arose and no serious attempt was made by the applicant to establish difficulties in the intervening years. Good and sufficient reason had been advanced by the applicant for extending the period within which the application could be made. The applicant could not be blamed for the delay and it was in the interests of justice to grant the extension of time sought.
This was an application for leave to seek judicial review pursuant to the Illegal Immigrants (Trafficking) Act 2000 and Order 84 of the Rules of the Superior Courts.
The Applicant in this case is seeking, inter alia, an order granting leave to apply for judicial review by way of Certiorari to quash a decision of the Refugee Appeals Tribunal (the "Tribunal") of 3rd April 2008 affirming the recommendation of the Refugee Appeals Commissioner to refuse the applicant refugee status and an order remitting the matter to the Tribunal for re-evaluation and reconsideration.
The applicant is a national of the Democratic Republic of Congo and entered the State on 13 th March 2006 at Dublin Airport. The applicant claimed asylum on the basis of an imputed political opinion and membership of a particular social group, namely as a witness to the kidnapping of her father, a political activist with the Union for Democracy and Social Progress ("UDPS"). The applicant also claims that while she was in Congolo in 2000 to visit her aunt and uncle she was raped by five men of Burundian and Rwandan nationality following the outbreak of war. She claims that while her aunt and uncle were killed by the soldiers, her life was spared. She became pregnant from this rape and later gave birth to a child on 13 th June 2001. The applicant claims this child is with her mother in the Democratic Republic of Congo and that she does not know anything about him.
In February 2006 the applicant claims she went to visit her father in Kinshasa, whereupon soldiers surrounded his house and kidnapped him when he refused to produce important files in his possession regarding the UDPS. The applicant claims she then fled on the advice of a soldier who was a school friend of her brother and who warned her that other soldiers were looking for her as she had witnessed her father's kidnapping. The applicant claims she sought help from a priest who arranged for her to escape the country and come to Ireland.
The Office of Refugee Applications Commissioner ("ORAC") made a negative recommendation on the applicant's claim for refugee status in their report, sent by letter dated 24 th July 2006. Her claim was recommended for rejection primarily as there were concerns about her credibility. Following this refusal of the applicant's claim for refugee status she appealed to the Tribunal and it is that decision which is sought to be impugned in these proceedings.
The Tribunal affirmed the recommendation of ORAC and refused the applicant's claim for refugee status entirely on the basis of the lack of credibility of her story.
The Tribunal stated that it reached its decision following the assessment all relevant documentation in connection with the appeal including the Notice of Appeal, the country of origin information, the asylum questionnaire and also the replies given to questions in respect of the s. 13 report.
The applicant states that in support of her appeal to the Tribunal, she submitted particularised country of origin information and several medical reports. She also claims that at the oral hearing on the 13 th March 2008, a request was made for an adjournment in a situation where the applicant was facing difficulty in obtaining a medical report from Dr. Farooq, a psychiatrist in St. Davnet's Hospital in Monaghan or alternatively an extension of time to submit same. The applicant also claims to have sought to cross examine the presenting officer of ORAC on a particular contest of fact. These applications were refused by the Tribunal.
The applicant submits that the first respondent erred in law and breached natural and constitutional justice by failing to grant an adjournment of the hearing or an extension of time in light of the fact that the applicant's medical report from her consultant psychiatrist was not available and the fact that the applicant was on anti-depressant medication on the day of her hearing. The applicant also submits that the respondents erred in failing to make any reference or assessment of the medical report in her decision.
Further, the applicant contends that the first respondent breached constitutional justice and fair procedures in failing to allow cross-examination of the presenting officer on the point of whether a meaningful s. 8 interview took place and as to what precisely was said at that time. It is submitted on behalf of the applicant that this is of particular importance given the finding in the Tribunal's decision that: "In the Applicant's Section 8 interview she made no mention of any problems regarding her father… Given that it is the supposed core reason why the Applicant claimed to have left DR Congo it seems unbelievable that she would not have made reference to it at this juncture."
Two particularised country of origin reports were submitted on behalf of the applicant by letter of 26 th March 2008 and a report of Dr. Rachael Cullivan, a consultant psychiatrist at St. Davnet's Hospital, was also faxed to the offices of the Tribunal on 3 rd April 2008. The applicant submits that this is a notable report as it sets out the details of the applicant's ongoing treatment for Post-Traumatic Stress Disorder and depression.
The applicant submits that the Tribunal erred in failing to assess any of the medical reports submitted in a meaningful way, especially in light of the negative credibility findings made against the applicant. The applicant also contends that the respondents erred in law, in particular, by failing to make any assessment of the medical report of Dr. Marian Smyth, dated 9 th July 2007, which certified that the applicant was suffering from Post Traumatic Stress Disorder and depression and a further report from Dr. Bello dated 19th June 2007, which certified that the applicant was attending him regularly for psychiatric reviews.
The applicant also submits that the respondents erred in failing to state they were in possession of a certificate from Ann Conachy, counsellor...
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D.F.S. (Also Known as D.M.)
...to grant leave. 13 Insofar as an extension of time is concerned the applicant relies on the judgment of Mac Eochaidh J. in M.B. v. RAT [2013] IEHC 168 where having considered other cases and jurisprudence he identified the significant issues that follows:- '(1) The relevant statutory time ......