M.D.A. v Refugee Appeals Tribunal and the Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Irvine
• Judgment Date: 20 July 2009
• Neutral Citation: [2009] IEHC 328
• Docket Number: [No.510 J.R./2008]
• Court: High Court
• Date: 20 July 2009

[2009] IEHC 328

THE HIGH COURT

[No.510 J.R./2008]

A (M D) v Refugee Appeals Tribunal (O'Brien) & Min for Justice

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996, THE IMMIGRATION ACT 1999, THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

BETWEEN

M.D.A.

APPLICANT

AND

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

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)

MCNAMARA v BORD PLEANALA 1995 2 ILRM 125

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S3

EUROPEAN COMMUNITIES ELIGIBILITY FOR PROTECTION REGS 2006 518/2006

REFUGEE ACT 1996 S16

REFUGEE ACT 1996 (APPEALS) REG 2003 SI 424/2003

REFUGEE ACT 1996

REFUGEE ACT 1996 S16(11)

IMMIGRATION ACT 1999 S11

DA SILVERIA v REFUGEE APPEALS TRIBUNAL UNREP PEART 9.7.2004 2005/15/3102

FASAKIN v REFUGEE APPEALS TRIBUNAL UNREP GEOGHEGAN 21.12.2005 2005/25/5110 2005 IEHC 423

ATANASOV v REFUGEE APPEALS TRIBUNAL UNREP SUPREME 26.7.2006 2006/3/519

IMMIGRATION

Asylum

Hearing - Fairness - Adjournment refused - Alleged fear of persecution for political opinion - Settlement of judicial review proceedings on basis of remission for re-hearing - Refusal of application for adjournment by commissioner prior re-hearing - Objection to hearing proceeding in absence of commissioner - Whether tribunal acted ultra vires in conducting hearing in absence of officer - Whether tribunal took into account likelihood of subsequent challenge to High Court - Whether tribunal erred in concluding that evidence of persecution on basis of status as failed asylum seeker absent - Whether incorrect standard of proof applied - Whether tribunal erred in concluding that statements inconsistent - Standard of proof - Whether substantial grounds for review - Application for extension of time - McNamara v An Bord Pleanála (Unrep, Carroll J, 24/1/1994); Da Silveira v Refugee Appeals Tribunal [2004] IEHC 436 (Unrep, Peart J, 9/7/2004); Fasakin v Refugee Appeals Tribunal [2005] IEHC 423 (Unrep, O'Leary J, 21/12/2005) and Atanasov v Refugee Appeals Tribunal [2006] IESC 53 (Unrep, SC, 26/7/2006) considered - Refugee Act 1996 (No 17), ss 13 and 16 - Refugee Act 1996 (Appeals) Regulations 2003 (SI 424/2003), reg 9 - Leave granted (2008/510JR - Irvine J - 20/7/2009) [2009] IEHC 328

A (MD) v Refugee Appeals Tribunal

Facts The applicant (a native of Togo) had arrived in the State and had applied for asylum. Both the Refugee Applications Commissioner and the Refugee Appeals Tribunal had not accepted his claim. However judicial review proceedings were instituted and the matter was remitted to the Tribunal. An adjournment was sought by the Refugee Applications Commissioner as the Commissioner's representatives could not attend the reconstituted hearing. The adjournment was refused and the hearing before the Refugee Appeals Tribunal went ahead. The applicant's claim was rejected on a number of grounds by the Tribunal and the applicant sought leave to bring judicial review proceedings.

Held by Irvine J in granting leave to seek judicial review proceedings. The applicant had not made out an arguable case to suggest that the Tribunal member in question had acted in breach of natural justice or fair procedures. However the Tribunal should not have proceeded in hearing the appeal without the Commissioner's representative. In addition the Tribunal had failed to take evidence into account regarding the risk of persecution failed asylum seekers faced when they returned to Togo.

Reporter: R.F.

JUDGMENT of

Ms. Justice Mary Irvine

delivered on the 20th day of July, 2009

1 By notice of motion dated 25^th April, 2008, the applicant seeks leave to challenge the decision of the first named respondent dated 27^th February, 2008, which was notified to him by letter of 31^st March, 2008, recommending refusal of his application for refugee status.

2 The applicant's proceedings seeking leave to apply for judicial review were issued eight days outside of the statutory period for the commencement of such proceedings. Whilst the statutory time limit is a strict one, and the court only has discretion to extend time where there are good and sufficient reasons for doing so, the court has concluded that it should extend the time provided for in s. 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000, so as to permit the present application to be maintained. In doing so, the court has taken into account the brief period in respect of which the extension is required, the potential strength of the applicant's claim and the attitude of the respondent thereto.

3 The standard of proof to be applied on the present application is that set out by Carroll J. inMcNamara v. An Bord Pleanála namely:-

"In order for a ground to be substantial, it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous."

4 It is as against this test that the court has assessed the validity of the applicant's claims.

5 The applicant is a national of Togo. He arrived in the State on 2^nd November, 2005. He applied for refugee status with immediate effect. He supported his application for refugee status based upon an alleged fear of persecution by reason of political opinion allegedly imputed to him, which he contends forced him to leave Togo.

6 The applicant completed the standard refugee status questionnaire on the 9^th November, 2005. His interview with office of the Refugee Applications Commissioner ("ORAC") took place on 23^rd November, 2005. By letter of 4^th January, 2006, the applicant was advised that his application for refugee status had been refused. A copy of the s. 13 report was enclosed with that letter.

7 The applicant lodged an appeal against the decision of ORAC. That appeal was heard on 16^th March, 2006, but was the subject matter of judicial review proceedings which were compromised on the basis that the case would be remitted to the Tribunal for re-hearing.

8 The Refugee Appeals Tribunal heard the applicant's appeal on 12^th February, 2008. At that time, the Tribunal had been furnished with a substantial body of additional material including additional grounds of appeal, written submissions, photographs depicting violence in the aftermath of elections in Lomê, the applicant's birth certificate, additional country of origin information and a number of previous decisions of the Tribunal thought to have a bearing on the facts in issue.

9 On the day before the scheduled hearing i.e. 11^th February, 2008 and without notice to the applicant's solicitors, the Tribunal member heard an application for an adjournment by the Refugee Applications Commissioner. The Tribunal member refused that application. The following day, counsel for the applicant submitted to the Tribunal member that she should not proceed with the hearing in the absence of the presenting officer of ORAC. He also indicated that had the applicant been on notice of the adjournment application that he would have consented to the same and that the applicant wished the presenting officer to be present as was provided for by statute.

10 The Tribunal member proceeded with the hearing of the appeal notwithstanding the applicant's protestations, and by letter dated 31^st March, 2008, the applicant was notified of the Tribunal member's recommendation that his appeal be disallowed. That decision was made on 27^th February, 2008.

11 The facts relied upon by the applicant in support of his claim for refugee status can be briefly summarised as follows. The applicant is a married man with three children. He was born in Dalabe which is an area near Lomê, Togo. He moved to Bé on the outskirts of Lomê in 1990, and worked as a barber. Bé is an area which at all relevant times was populated mostly with government opposition party members. The applicant, however, had no party political involvement. The applicant left his home in Bé due to upcoming elections and went to stay with his family in Dalabe which was allegedly safer. There were usually problems in Bé at election time. His son became ill and he had to go back to Bé to collect money which he had left in his house in order to bring him to the hospital. In the course of this trip the applicant became caught up in a disturbance. His son was knocked unconscious and his own identity card was taken. Because his identity card showed him to be from Bé, he was picked up by soldiers who considered him to have been one of those involved in the demonstration. The soldiers took his money and his ID card, before putting him on a truck with other people. The applicant escaped from this truck when it stopped to pick up other protestors. Following his escape he ran to a friend's house and stayed there for a few days before going to Ghana, where he stayed for six months before travelling through London and on to Dublin. The applicant claimed that he had had some contact with his family and that they had advised him that police had come regularly to look for him. They further advised him that they believed he would be at risk if he returned to Togo.

12 The decision of the Tribunal member, after setting out the grounds of appeal at s. 3, deals with the factual basis for the applicant's claim. There is no complaint that the facts therein recited exclude any material evidence submitted by the applicant. In particular, the Tribunal member noted that the applicant had become caught up in demonstrations in Bé when he went back there to collect money to take his son to hospital. She noted that he was beaten, that his ID card was taken from him and that because of the address on his card, he was thought to be a demonstrator. She also records the applicant's claim that he was considered to be amongst those responsible for the injury of a government soldier on that date. She also referred to the fact that his family had told him that the...