M. G. D. v Refugee Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 27 November 2014 |
| Neutral Citation | [2014] IEHC 566 |
| Court | High Court |
| Date | 27 November 2014 |
[2014] IEHC 566
THE HIGH COURT
BETWEEN
AND
Immigration and asylum - Refugee status - Telescoped application for leave to apply for judicial review - Order of Certiorari - Commissioner made finding pursuant to s. 13(6) (b) Refugee Act 1996 - Credibility findings - Country of Origin Information - Speculation by Tribunal - Breach of fair procedures
Facts The applicant is a Sudanese national. He was a member of the Dinka tribe. He fled his village when it was attacked by the militia, an attack in which his mother was killed. He fled to Libya and remained there for one year. He arrived in Ireland on 5 th July 2009. He was arrested upon arrival and held in prison before claiming asylum on 7 th July 2009. He was helped by the Refugee Legal Service and an interpreter in his s.11 interview with ORAC. His claim was rejected as manifestly unfounded, owing to a lack of credibility. On appeal he claimed the Commissioner failed to take into account all relevant information including Country of Origin Information (COI). The Refugee Appeals Tribunal upheld the decision of the Commissioner and refused the applicant”s appeal citing lack of credibility. The proceedings were issued 6 days outside the time limit laid down by s.5 (2) Illegal Immigrants (Trafficking) Act 2000. The Court had to be satisfied there was a good and sufficient reason for granting an extension of time. An affidavit was sworn by an employee of the Judicial Review Unit of the Refugee Legal Service stating the delay was neither inordinate nor inexcusable. None of the respondents had suffered any prejudice by reasons of the delay, thus the judge was satisfied a good explanation had been given and granted an extension of time up to and including the date on which the notice of motion was issued. The respondent applied to the Court for an order dismissing / striking out the proceedings as an abuse of process and/or wrongful conduct. However, the judge concluded that there was no attempt made by the applicant or his legal advisers to mislead the Court and so refused the relief sought by the respondent.
Held The Tribunal claimed that there was no documentation before it relating to an attack in the applicant”s village on 17 th May 2008. The judge held this was factually incorrect as the applicant had supplied a significant amount of COI in relation to the violence. The applicant submitted the Tribunal member did not even refer to the COI, much less give it proper consideration. Accordingly, the judge held the finding made by the Tribunal member could not stand. The applicant sustained an injury in his home country. The Tribunal said that as the applicant received medical treatment it was difficult to understand how he did not know whether he was shot or not. The judge concluded this was based on speculation as to what the applicant may or may not have been told at the time of receiving medical attention. Therefore the finding was irrational and could not stand. The applicant said a new currency was introduced in Sudan yet it was not really used in the south of the country. The judge held the Tribunal did not address the explanation offered by the applicant for why he could not recognise some of the bank notes. He concluded the finding was therefore made in breach of the applicant”s rights to fair procedures and could not stand.
-Decision quashed; matter referred back to Refugee Appeals Tribunal for consideration by a different Tribunal member.
1. This is an a telescoped application for leave to apply for judicial review seeking an order of certiorari in respect of the decision of the Refugee Appeals Tribunal, dated 31 st January 2010, to refuse the applicant a recommendation of refugee status. The applicant was refused a recommendation at first instance by the Office of the Refugee Applications Commissioner ("ORAC") in a decision dated 9 th October 2009. The Commissioner also made a finding pursuant to s. 13(6)(b) of the Refugee Act 1996, namely that "the applicant made statements or provided information in support of the application of such a false, contradictory, misleading or incomplete nature as to lead to the conclusion that the application is manifestly unfounded". As a result, in accordance with s. 13(5), the applicant's appeal was dealt with by the Tribunal on a papers only basis, without an oral hearing.
2. The applicant is a Sudanese national, bom on 6 th June, 1985, and is a member of the Dinka tribe. He claims to have fled his village, Abyei, when it was attacked by militia on 17 th May, 2008, an attack in which he states his mother was killed. The applicant claims to have suffered an injury in the course of escaping from the attack but cannot say whether it was caused by gunshot or not. The applicant fled to Libya where he remained for a year before arranging passage out of that country through an agent, arriving in the State on 5 th July, 2009. The applicant was arrested on arrival at Dublin Airport and held in Cloverhill Prison before claiming asylum on 7 th July, 2009.
3. The applicant was initially helped by a friend, who completed his questionnaire in Arabic, as he claims he can speak that language but is unable to write it. The applicant was represented by the Refugee Legal Service in making his asylum application and had an interpreter present at his s. 11 interview at ORAC which took place on the 3 rd and 15 th September, 2009. The applicant's claim was rejected by the Commissioner principally on the grounds of a lack of credibility, such that it was ultimately held that his claim was manifestly unfounded.
4. The applicant appealed this decision, and written submissions were made on his behalf by the Refugee Legal Service. The applicant claimed that the Commissioner failed to take into account all relevant information, including country of origin information in reaching his findings. The applicant included the relevant supporting documentation with his submissions in this regard. The Refugee Appeals Tribunal upheld the recommendation of the Commissioner and refused the applicant's appeal, once again citing a lack of credibility in respect of the applicant's claims. It is that decision which is impugned in these proceedings.
5. Before turning to the substantive matters in this application, it is necessary to deal first with two issues pertaining to the applicant's case.
6. The present proceedings were issued six days outside the time limit laid down by s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000. While the respondent has not objected to the applicant's application for an extension of time, it is necessary, nonetheless, that the court be satisfied that there is good and sufficient reason for granting the extension.
7. An affidavit has been sworn by Mary Conroy of Judicial Review Unit of the Refugee Legal Service in which she sets out the steps which were taken on behalf of the applicant to issue the within proceedings. According to Ms. Conroy, the impugned decision was sent to the applicant under cover of a letter dated 8th February, 2010. When the applicant attended at the offices of the RLS, his file was transferred to Ms. Conroy in the Judicial Review Unit.
8. Ms. Conroy considered the file and formed the view that it was appropriate to apply, as required, to the Legal Aid Board for permission to obtain counsel's opinion. She did this on Thursday, 18th February, 2010. She was notified of the grant of that permission on the same date. Thereafter, she arranged for a brief to be prepared and to be forwarded to counsel. That brief was sent out on Monday, 22nd February, 2010. Counsel received the brief on Wednesday, 24th February, 2010, and forwarded a written opinion on the following day. Thereupon, Ms. Conroy applied to the Legal Aid Board for a legal aid certificate authorising the institution of proceedings. Such certificate was granted on Friday, 26th February, 2010. Counsel forwarded draft pleadings over the weekend and on Thursday, 3rd March, 2010, Ms. Conroy contacted the applicant and an interpreter and arranged for them to attend at the offices of the Refugee Legal Service to discuss the draft pleadings and to amend and/or confirm the contents thereof as appropriate.
9. Ms. Conroy submitted that, having regard to the internal procedures in operation within the Refugee Legal Service, the delay was neither inordinate nor inexcusable. She also submitted that none of the respondents had suffered any prejudice by reasons of the delay herein.
10. Having regard to the affidavit sworn by Ms. Conroy, I am satisfied that a good explanation has been given for the short delay in instituting the within proceedings. I will extend the time for the issuing of the proceedings up to and including 3rd March, 2010, which is the date on which the notice of motion issued.
11. After the conclusion of the hearing of the application herein, the respondent applied to the court for an order dismissing or striking out the proceedings as an abuse of process and/or for wrongful conduct and/or lack of candour and/or non-disclosure on the part of the applicant.
12. This application was based on an affidavit sworn by Ms. Katherine Bateson of the Chief State's Solicitor's Office on 24th April, 2014. She deposed to the fact that in the s. 11 interview and at hearing before the RAT, the applicant had maintained that he was a Sudanese national with a date of birth of 6th June, 1985, and that he fled to Libya from Sudan and remained there until 25th June, 2009, before travelling to...
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