M (J) v Refugee Appeals Commissioner & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr Justice Cooke
• Judgment Date: 27 January 2009
• Neutral Citation: [2009] IEHC 64
• Docket Number: [No.262 J.R./2008]
• Court: High Court
• Date: 27 January 2009

[2009] IEHC 64

THE HIGH COURT

[No.262 J.R./2008]

M (J) v Refugee Appeals Commissioner & Min for Justice

BETWEEN/

J.M.

APPLICANT

AND

REFUGEE APPEALS COMMISSIONER

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S13(5)

REFUGEE ACT 1996 S13(6)

REFUGEE ACT 1996 S13(6)(D)

D (A) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 27.1.2009 2009 IEHC 77

STEFAN v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY 2001 4 IR 203 2002 2 ILRM 134 2001/23/6290

Z (V) v MIN FOR JUSTICE & ORS 2002 2 IR 135 2002 2 ILRM 215 2003/49/12190

BALOGUN v REFUGEE APPLICATIONS CMSR UNREP HIGH 9.10.2008 (EX TEMPORE)

N (BN) v MIN FOR JUSTICE UNREP HEDIGAN 9.10.2008 2008 IEHC 308

MOYOSOLA v REFUGEE APPLICATIONS CMSR UNREP CLARK 10.5.2005 (EX TEMPORE)

O (F) & ORS v MIN FOR JUSTICE UNREP MCGOVERN 16.5.2007 2007/45/9466 2007 IEHC 237

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

IMMIGRATION

Asylum

Judicial review - Leave - credibility - Report of commissioner - Recommendation that well-founded fear of persecution not established - Finding that protection should be sought in second country of available nationality - Lodgment of prior application in another state party - Citizenship - Whether investigation and report infringed right to fair procedure - Reliance on documentary information not disclosed to applicant - Failure to await arrival of originals of documents - Criticism of legibility of copies - Application for originals - Request for postponement of negative recommendation - Whether failure to put matters to applicant - Failure to alert applicant to significance being attached to possibility of dual nationality - Whether substantial grounds for review - Availability of alternative remedy by way of statutory appeal - Appeal pending - Principles applicable to exercise of discretion to grant leave - Necessity to show fundamental flaw or illegality in report such that appeal an inadequate remedy - Absence of oral hearing on appeal - Whether potential unfairness could be cured by appeal - Discrepancy between significance of dual nationality finding to report and absence of significance during investigation - Whether failure to await receipt of originals serious violation of right to fair procedures - Stefan v Minister for Justice [2001] 4 IR 203, VZ v Minister for Justice [2002] 2 IR 135, N v Minister for Justice [2008] IEHC 308 (Unrep, Hedigan J, 9/10/2008), Moyosola v Refugee Appeals Commissioner [2005] IEHC 218 (Unrep, Clarke J, 10/5/2005) and O(F) v Minister for Justice [2007] IEHC 237 (Unrep, McGovern J, 16/5/2007) considered; D(A) v Refugee Appeals Commissioner [2009] IEHC 77 (Unrep, Cooke J, 27/1/2009) distinguished - Refugee Act 1996 (No 17), s 13 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Leave granted (2008/262JR - Cooke J - 27/1/2009) [2009] IEHC 64

M(J) v Refugee Appeals Commissioner

Mr Justice Cooke

1 This is an application for leave to seek judicial review brought by the applicant who arrived in the State on 1^st December, 2006, and applied to be declared a refugee shortly thereafterwards. He is a national of Zimbabwe and claims to have fled that country to escape persecution on the grounds of his political activities as a member of the MDC opposition party and of his role as a trade unionist opposed to the regime of the current government.

2 This application for leave was heard by the Court immediately after a similar application for leave in the case of AD against the same respondents. Both are applications for leave to seek relief by wayinter alia of an order of certiorari to quash the reports of the first named respondent, ("the Commissioner,") recommending that each applicant should not be declared a refugee. Both are cases in which appeals to the Refugee Appeals Tribunal ("the Tribunal") against the respective reports have been initiated and left in abeyance pending the outcome of the judicial review proceedings. As in the AD case, therefore, it is again necessary here to consider whether this is a case in which judicial review is an appropriate and necessary remedy to cure the alleged illegalities in the decision of the Commissioner.

3 Slightly unusually in these cases, the adverse report and recommendation of the Commissioner which is sought to be challenged ("the Contested Report") does not turn upon the credibility of the applicant's claim to fear persecution if returned to his country of origin, or upon the reality of the claims to have suffered persecution before escape, nor upon the claim of membership of a social or political group liable to be persecuted. It turns upon a finding by the Commissioner that the applicant is entitled to Mozambique citizenship because his father was born in Mozambique and that he can and should, therefore, seek protection in his second country of available nationality and is thus in no need of international protection.

4 It is unnecessary for the purpose of ruling on this application for leave to recite the full history of the applicant which is claimed to have led to his flight from Zimbabwe because the Commissioner has accepted that the country of origin information clearly shows that members of the MDC party are routinely mistreated, imprisoned and tortured by the Zimbabwe authorities and that this vindicates his assertion that he has been so tortured by them. He also accepted that the questioning of the applicant on his knowledge of Zimbabwe showed that he was someone who had at least lived there for some time and his level of knowledge of the tobacco industry appeared to confirm his claim to have been employed in it and to have been a trade union official.

5 One particular fact in the applicant's history does, however, have a bearing upon the issue which is now to be determined, namely, that the investigation of the application for refugee status disclosed that the applicant had first entered the United Kingdom of Great Britain and Northern Ireland on a Mozambique passport and that he had applied there for asylum as a Mozambique national. This is relevant because the effect of s.13, ss. (5) and (6) of the Refugee Act 1996 is that no oral hearing will now take place on any appeal against the contested report because this is a case in which para. d) of subs. 6) applies namely, that "The applicant had lodged a prior application for asylum in another state party to the Geneva Convention whether or not that application had been determined, granted, or rejected".

6 Because of his arrival in the UK on a Mozambique passport; because of the fact that he signed asylum papers there claiming asylum as a national of Mozambique; and because a medico-logical report he submitted states that he had been born in Mozambique and moved with his family to Zimbabwe in 1978, much of the Commissioner's investigation appears to have been concerned with establishing his exact connection with that country and a material part of the Contested Report is, as a result, taken up with an analysis of the evidence relevant to that issue.

7 Although the Commissioner in the Contested Report accepts that the applicant does appear to have lived in Zimbabwe for a number of years, he expresses considerable scepticism about the applicant's attempt to explain away his claims of Mozambique nationality as made to the U.K. authorities. The issue as to whether the applicant was born in Zimbabwe or in Mozambique was clearly a live one at the investigation stage and was obviously considered unresolved by the Commissioner because he states "Even if the applicant's assertion that he was not born in Mozambique but in Zimbabwe were to be accepted, in all of the birth certificates submitted, with the exception of that of his brother Dumisani, the place of birth of the applicant's father is stated to be Mozambique". The applicant was asked about this and confirmed that his father had been born in Mozambique but he claimed that he was a citizen of Zimbabwe. The Commissioner observes "The applicant has not submitted any documentation to confirm his father is a citizen of Zimbabwe".

8 The report then refers to a documents described as "Appendix 4: Citizenship Laws of the World" which is an extract downloaded from an internet website which includes a relevant part of the citizenship law for Mozambique. Based on this the Commissioner concludes "It appears that the applicant's father if he is not presently a citizen of Mozambique would be entitled to reacquire his Mozambique citizenship which in turn would allow the applicant to gain citizenship of that country. It appears that the applicant himself would be able to claim citizenship in Mozambique as he was born there or through his parentage. Either way, the applicant appears to have dual nationality and could seek the protection of the second country of available citizenship, Mozambique". This is, in effect, the basis for the principal determination of the Contested Report and the target of the grounds now relied upon against him.

9 Emphasis is also placed in argument on behalf of the applicant on the detailed...