M (A N) v Refugee Appeals Tribunal (Garvey)

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M. H. CLARK,
• Judgment Date: 16 July 2009
• Neutral Citation: [2009] IEHC 331
• Court: High Court
• Date: 16 July 2009

[2009] IEHC 331

THE HIGH COURT

[No. 1265 J.R./2007]

M (A N) v Refugee Appeals Tribunal (Garvey)

JUDICIAL REVIEW

BETWEEN

A.N.M.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (BEN GARVEY)

RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTIES

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

REFUGEE ACT 1996 (APPEALS) REGS 2003 SI 424/2003 ART 9(1)(E)

T(J) (A MINOR) v REFUGEE APPEALS TRIBUNAL UNREP CLARKE 31.3.2009 2009 IEHC 156

R (AM) v REFUGEE APPEALS TRIBUNAL UNREP MCGOVERN 25.4.2008 2008 IEHC 108

MURESAN v MIN FOR JUSTICE & ORS UNREP FINLAY-GEOGHEGAN 8.10.2003 2003/38/9156

IMMIGRATION

Asylum

Hearing - Fairness - Alleged refusal to allow cross-examination of presenting officer at oral hearing - Alleged breach of natural and constitutional justice - Absence of reliable evidence of application to cross-examine - Whether substantial grounds for review - Failure to seek to call commissioner or representative as witness - Different officer present at hearing - Legitimus contradictor - Absence of prejudice - Application for extension of time - T v Refugee Appeals Tribunal [2009] IEHC 156 (Unrep, Clark J, 31/3/2009); R (A M) v Refugee Appeals Tribunal [2008] IEHC 108 (Unrep, McGovern J, 25/4/2008); Muresan v Refugee Appeals Tribunal (Unrep, Finlay Geoghegan J, 8/10/2003); Emmanuel v Refugee Appeals Tribunal (Unrep, Clark J, 7/7/2009) considered - Refugee Act 1996 (No 17), ss 11 and 13 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Refugee Act 1996 (Appeals) Regulations 2003 (SI 424/2003), reg 9 - Leave refused (2007/1265JR - Clark J - 16/7/2009) [2009] IEHC 331

M (AN) v Refugee Appeals Tribunal

Facts: The applicant sought leave to apply for judicial review to seek an order of certiorari to quash the decision of the first named respondent. The applicant alleged that fair procedures had not been provided, that adverse findings as to credibility had been made that had failed to take into account significant elements of the evidence of the applicant, that the Tribunal had erred as to material facts with respect to credibility and that the Tribunal had selective regard for certain country of origin information. The applicant was a member of a tribe in Darfur, Sudan and alleged that significant positive evidence had been provided that he had been a member of a Tribe.

Held by Irvine J. That the Tribunal was entitled to come to the conclusion that was reached and was entitled to weigh the evidence as available. The Tribunal did not err outside of jurisdiction. Even if an irrational consideration had been reached, it would not have affected the overall outcome of the proceedings. The errors made were peripheral. Substantial grounds had not been shown by the applicant and the reliefs sought would be refused.

Reporter: E.F.

1 This is an application for leave to apply for judicial review of the decision of the Refugee Appeals Tribunal (RAT), dated the 31 ^st August, 2007, to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicant should not be granted a declaration of refugee status. Mr. Hugo Hynes S.C. with Mr. James Healy B.L. appeared for the applicant and Ms. Siobhán Stack B.L. appeared for the respondent. The hearing took place at the Kings Inns, Court No. 1, on the 31 ^st March, 2009.

2 The essential question in this case is whether the RAT decision should be quashed by reason of the Tribunal Member's alleged refusal to allow the applicant's legal representative to cross-examine the Presenting Officer at the oral hearing.

The Asylum Application

3 The applicant claims to be a national of the Democratic Republic of Congo. He made an application for asylum in the State in 2005. In the context of the issue to be determined in these proceedings the only aspect of the applicant's biographical details that is of any relevance is that he says that his first language is Lingala and he also speaks French. He attended for a s. 11 interview, which was conducted in French. A s. 13 report was compiled in July, 2006 in which a negative recommendation was made. The applicant appealed to the RAT. An oral appeal hearing took place at which the applicant was represented by Mr. James Healy B.L. and a member of the Refugee Legal Service (RLS) and at which a Lingala interpreter was present. An attendance note of the hearing taken by the applicant's RLS caseworker is exhibited in these proceedings. The Tribunal Member made a negative decision on the 31 ^st August, 2007.

Extension of Time

4 The applicant was notified of the RAT decision by letter dated the 31 ^st August, 2007. These proceedings issued on the 3 ^rd October, 2007. The applicant was therefore outside of the fourteen day period allowed by s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 and has applied for an extension of time. In his grounding affidavit the applicant seeks to explain the day by reason of the requirement to obtain a private solicitor to act on his solicitor, his poor financial situation and his difficulty in finding a solicitor who was familiar with asylum law.

THE ISSUE IN THE CASE

5 The issue in these proceedings arises out of paragraph 28 of the applicant's grounding affidavit:-

"I say and am so advised and it is a matter of serious concern to me that the Respondent, on request of my legal representative, refused him permission to be allowed to put any questions to or cross examine the Presenting...