M (JG) v Refugee Applications Commission & Minister for Justice, Equality & Law Reform

JurisdictionIreland
JudgeMS. JUSTICE M. H. CLARK,
Judgment Date29 July 2009
Neutral Citation[2009] IEHC 352
CourtHigh Court
Date29 July 2009

[2009] IEHC 352

THE HIGH COURT

[No. 262 J.R./2008]
M (JG) v Refugee Applications Commissioner & Min for Justice
JUDICIAL REVIEW

BETWEEN

J. G. M.
APPLICANT

AND

THE REFUGEE APPLICATIONS COMMISSIONER AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENTS

IMMIGRATION: Asylum

IMMIGRATION

Asylum

Fair procedures - Failure to afford applicant opportunity to rebut evidence - Failure to disclose documents relied on - Adequacy of appeal to refugee applications commissioner - Whether fundamental and irremediable infringement of entitlement to fair procedures - Applicant seeking order quashing the decision of ORAC rather than availing of statutory right to appeal before refugee appeals commissioner - Whether fundamental flaw or illegality such that rehearing upon appeal before the tribunal inadequate remedy - Discretion - Whether certiorari appropriate remedy - Whether serious deficiency in investigative process - Existence of alternative remedy - Conduct of applicant - Merits of application - Consequences to applicant if certiorari not granted - Degree of fairness of procedures - Whether flaw remediable at appeal - Absence of the right to oral hearing - Factors to be taken into account - Idiakheua v Minister for Justice, Equality and Law Reform [2005] IEHC 150, (Unrep, HC, Clarke J, 10/5/2005), Moyosola v Refugee Applications Commissioner [2005] IEHC 218, (Unrep, HC, Clarke J, 10/5/2005, D (A) v Refugee Applications Commissioner [2009] IEHC 77, (Unrep, HC, Cooke J, 27/1/2009), Stefan v Minister for Justice, Equality and Law Reform [2001] 4 IR 203, K (A) v Refugee Applications Commissioner (Ex tempore, SC, 28/1/2009), N (NB) v Minister for Justice, Equality and Law Reform [2008] IEHC 308, (Unrep, HC, Hedigan J, 9/10/2008), M (J) v Refugee Applications Commissioner [2009] IEHC 64, (Unrep, HC, Cooke J, 27/1/2009), A (TT) v Refugee Applications Commissioner [2009] IEHC 215, (Unrep, HC, Cooke J, 29/4/2009) and A (RL) v Minister for Justice, Equality and Law Reform [2009] IEHC 216, (Unrep, HC, Cooke J, 30/4/2009) considered - Order of certiorari granted, case remitted to ORAC (2008/262 JR - Clark J - 29/7/2009) [2009] IEHC 352

M (JG) v Refugee Applications Commissioner

Facts: The applicant sought an order of certiorari of the recommendation of the Office of the Refugee Applications Commissioner (ORAC) not to grant him refugee status. The applicant claimed to be a national of Zimbabwe in his application to the State in 2006. He disclosed that he had been refused asylum in the UK and that the UK authorities had found that he was not Zimbabwean but rather Mozambican. The applicant alleged that the ORAC had failed to provide him with fair procedures in considering the documentation as to citizenship and to put certain documents to him as to Mozambique citizenship and that the error was so fundamental that an order of certiorari was necessary as he was not entitled to an appeal.

Held by Harding Clark J. That the case was an appropriate one for the Court to grant relief. The breach of fair procedures would have continuing adverse effects on the applicant that could not be remedied on appeal. An order of certiorari was appropriate. An order would be made quashing the decision of ORAC and the case would be remitted to ORAC.

Reporter: E.F.

1

The applicant seeks an order of certiorari by way of judicial review of the recommendation of the Office of the Refugee Applications Commissioner (ORAC), dated the 5 th February, 2008, that the applicant should not be granted a declaration of refugee status. Leave was granted on the 27 th January, 2009 by Cooke J. (see J.M. v. The Refugee Applications Commissioner & Another [2009] I.E.H.C. 64). The substantive hearing took place at the King's Inns, Court No. 1, on the 23 rd June, 2009. Mr. Mark Connaughton S.C. and Mr. David Leonard B.L. appeared for the applicant. Mr. Gerard Hogan S.C. and Ms. Ann Harnett O'Connor B.L. appeared for the respondents. The essence of the applicant's complaint is that the ORAC decision is fundamentally flawed and ought to be quashed by reason of the authorised officer's failure to explore with the applicant the potential for him to acquire nationality of Mozambique. The applicant argues that this flaw in the investigative process would be an appropriate case for judicial review rather than an appeal to the Refugee Appeals Tribunal.

Background
2

On the 1 st December, 2006 the applicant applied for asylum in the State, claiming to be a national of Zimbabwe. There are some unusual features regarding his application.

3

From the outset he disclosed that he had been refused asylum in the U.K. and had been asked to leave that country. He said he entered the U.K. in June, 2004 and made an application for asylum there in November, 2004. The date of his application in the U.K. was confirmed by a Eurodac search. His explanation for the negative outcome of that application was that the UK authorities found "that I am not Zimbabwean but that I had dual citizenship". He also said that "The UK refused saying that I am Mozambican".

4

He furnished ORAC with voluminous documentation relating to his U.K. application although surprisingly the decisions by the U.K. authorities were not included. The furnished documents indicate that he arrived in the U.K. using a Mozambican passport and claiming to be a national of Mozambique. However both in the U.K. and in this State his claim for asylum centred on the ill-treatment he suffered in Zimbabwe as a result of his membership of the opposition Movement for Democratic Change (MDC) and his trade union activities.

5

At the appeal stage in the U.K. asylum process, he claimed that the Mozambican passport was not genuine and that he was in fact a national of Zimbabwe. However included in the bundle of U.K. asylum application papers furnished to ORAC there was a report from the Medical Foundation for the Care of Victims of Torture dated April, 2005, which lists his nationality as "Zimbabwean/Mozambique" and records that he was born in 1976 in "Esubeira, Mozambique, near Manica, eastern Zimbabwe" and that "his family moved to Zimbabwe in 1978 as a consequence of the civil war in Mozambique". The Medical Foundation report also records that he had "extended family in Mozambique."

6

At a later stage in the applicant's asylum process in the U.K. he claimed that he was in fact from Zimbabwe and he furnished documentation in proof of that assertion. These were copies of his Zimbabwean birth certificate, his passport, ID card and MDC membership card. His U.K. solicitors submitted a report from a forensic document examiner which found that the applicant's Zimbabwean passport was genuine and concluded that there is "no evidence of forgery or counterfeiting". The report noted that the passport showed that he had travelled extensively over the previous two years. It seems that in addition to establishing the authenticity of the Zimbabwe passport the solicitors sought confirmation from the Mozambique High Commission that the applicant was not a national of that country. They stated in a letter that no confirmation could be produced as this would have required an exhaustive check of all Mozambique nationality records to prove a negative. I understand this to mean that an exhaustive search was necessary to exclude the applicant's name from the birth registers.

7

It was not disputed in the U.K. that the applicant was tortured in Zimbabwe. The Medical Foundation report concluded that he had "a number of scars consistent with his account of torture" and that the examining physician "did not doubt that this man has been tortured as he describes". While accepting the torture claim the Secretary of State and the special adjudicator found that the applicant was from Mozambique and not Zimbabwe. His appeal to the Immigration Appeal Tribunal (IAT) was refused in June, 2006 and it seems the finding of the IAT was that he had dual nationality. The IAT rejected the authenticity of his Zimbabwean birth certificate although his Zimbabwean passport and ID document were accepted as being genuine. His application for reconsideration of the IAT decision was, it seems, refused in August, 2006. The applicant says he appealed "to the high court and the supreme court" in the U.K. but he has not provided any documentation in support of that assertion and as none of the decisions were furnished, the reasons for the refusal are not available to this Court.

8

The applicant travelled to Ireland on the 18 th November, 2006 but did not apply for asylum then. After a number of days here he left for the Netherlands. He explained he had planned travelling from Ireland to Canada where he intended to apply for refugee status. When he discovered that there were no direct flights between Ireland and Canada he went to the Netherlands to take a connecting flight but was refused entry because he was travelling on a false Botswana passport which he says his father had organised for him. He declined to apply for asylum in the Netherlands and was returned by the Dutch authorities to Ireland in December, 2006 and detained in Cloverhill Prison. Upon his release he sought assistance from SPIRASI (the Centre for the Care of Survivors of Torture) in Dublin in preparing a medico-legal report and proceeded with an application for asylum here.

The Asylum Application in Ireland
9

Although it was determined that the applicant should be transferred to the U.K. pursuant to the Dublin II Regulation, he was not transferred on time and it fell to Ireland to examine and determine his asylum application. In his ORAC questionnaire the applicant claimed that his application was dealt with inappropriately in the U.K. He said he was forced to say he was from Mozambique even though he repeatedly told the authorities that he was from Zimbabwe. He...

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