M.O.O.S. v Refugee Applications Commissioner and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 08 December 2008
• Neutral Citation: [2008] IEHC 399
• Court: High Court
• Date: 08 December 2008

S (M O O) v Refugee Applications Commissioner & Min for Justice

BETWEEN

M. O. O. S.

APPLICANT

AND

THE REFUGEE APPLICATIONS COMMISSIONER

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

[2008] IEHC 399

[No. 957 J.R./2006]

THE HIGH COURT

IMMIGRATION

Asylum

Judicial review - Leave - Substantial grounds - Credibility - Country of origin information - Applicant previously refused asylum in another State - Applicant precluded from oral appeal - Attorney General and Human Rights Commission not on notice of challenge - Whether denial of right to full appeal unconstitutional - Whether denial of right to full appeal contrary to European Convention on Human Rights - Whether issues arising capable of being dealt with by way of written appeal - Whether respondent had discretion to allow oral appeal - Whether applicant should be restricted in advancing arguments - Imafu v Minister for Justice [2005] IEHC 416 (Unrep, Peart J, 9/12/2005), Z v Minister for Justice [2002] 2 IR 135, S v Refugee Applications Commissioner [2008] IEHC 238 (Unrep, McMahon J, 11/7/2008) and Camara v Minister for Justice (Unrep, Kelly J, 26/7/2000) applied; Mamatkulov v Turkey (2005) 41 EHRR 25 considered; Simo v Minister for Justice [2007] IEHC 305 (Unrep, Edwards J, 04/07/2007) and M v Refugee Applications Commissioner [2005] IEHC 218 (Unrep, Clarke J, 23/6/2005) distinguished - Refugee Act 1996 (No 17), ss 13 and 11B- European Convention on Human Rights, art 6 - Leave refused (2006/957JR - Birmingham J - 8/12/2008) [2008] IEHC 399

S(MOO) v Refugee Applications Commissioner

REFUGEE ACT 1996 S13(5)

REFUGEE ACT 1996 S13(6)(d)

IMMIGRATION ACT 2003 S7(h)

CAMARA v MIN FOR JUSTICE UNREP KELLY 26.7.2000 2000/4/1247

S (D v T) v MIN FOR JUSTICE UNREP EDWARDS 4.7.2007 2007/54/11652 2007 IEHC 305

REFUGEE ACT 1996 S11B(f)

IMMIGRATION ACT 2000 S7(f)

MOYOSOLA v REFUGEE APPLICATIONS COMMISSIONER & ORS CLARKE 23.6.2005 2005/40/ 8261 2005 IEHC 218

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6(1)

MAMATTKULOV & ASKAROV v Turkey (2005) 41 EHRR 25

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

S (F O) v MIN FOR JUSTICE UNREP MCMAHON 11.7.2008 2008 IEHC 238

1 1. This is an application for leave to seek judicial review of the decision/recommendation of the Refugee Applications Commissioner, dated 31 ^st May, 2006.

The nature of the proceedings

2 2. The route that these proceedings have taken is a slightly unusual one, and it is proper that I should refer to this. The notice of motion, seeking leave to apply for judicial review, refers to the fact that a declaration is sought that s. 13(5) of the Refugee Act 1996 is in breach of the provisions of the European Convention on Human Rights and a declaration is also sought that s. 13(5) of the Refugee Act 1996, as amended, is in breach of the provisions of Bunreacht na hÉireann. However, the written submissions filed did not address questions of any unconstitutionality or any incompatibility with the European Convention. It is not all that unusual that the originating documentation should raise issues relating to the constitutionality of some provisions of the refugee code but that these issues would then not be pursued with the arguments focusing instead on issues that were specific to the situation of the applicant. However, at the hearing, it became apparent that counsel on behalf of the applicant was anxious to pursue these issues. That raised a difficulty in that neither the Attorney General nor the Human Rights Commission was on notice of this fact. In these circumstances, the proceedings were adjourned in order that both the Attorney General and the Commission could be notified. The Attorney General indicated that he was happy that the proceedings should continue but requested that some additional submissions be made on his behalf by counsel who had originally been instructed on behalf of the Refugee Applications Commissioner and the Minister. While the Commission was also notified, it did not seek to participate.

The factual background to the proceedings

3 3. The applicant, who states that he is a national of Somalia, arrived, with his father, in this State on 21 ^st April, 2005, and both applied for asylum in the ordinary way. In his Office of the Refugee Applications Commissioner (hereinafter ORAC) questionnaire, and at interview, the applicant stated that he had not applied for asylum in any other State and that after leaving Somalia in 2003 he and his father had lived in Kenya until 2005. In fact, both he and his father had applied for asylum in the United Kingdom in 2003, having only spent three months in Kenya. It seems that the applications in the United Kingdom were processed and refused and that appeals on their behalf were rejected.

4 4. Upon discovering that the applicant had made a previous application for asylum, ORAC decided that the United Kingdom was responsible for examining the applicant's claim and the Minister made a transfer order in respect of him. The applicant commenced judicial review proceedings which were settled with the result that the applicant was allowed to have his claim determined in Ireland. It appears that the fact that the applicant's father is blind was relevant to the decision to permit both applications to be processed in Ireland.

5 5. On 27 ^th February, 2007, the applicant made a new application for asylum. At interview on 7 ^th April, 2006, the applicant explained that he and his father were concerned that their claims were not being properly addressed in the United Kingdom and it was on this basis that they decided to come to this State.

Factual background to the asylum claim

6 6. As I have indicated, the applicant states that he is a national of Somalia. He says that he is a member of the Asharaf clan, which is a minority group in Somalia, and that until 2003, he lived in the town of Marka in the lower Shabelle region of Somalia. He says that the Habr Gedir clan, a majority group, was in control of his hometown.

7 7. It is the applicant's case that in 2003, he and his father were abducted, beaten, and threatened with death by approximately ten armed militiamen, who were members of the Habr Gedir clan. According to the applicant, the militia men were acting on the mistaken belief that his family were wealthy. It appears that his father had been a successful business man in earlier years. The applicant claims that he and his father managed to escape when their captors were distracted by a gunfight.

8 8. The applicant states that having escaped, he and his father found out that the Habr Gadir clan were looking for them, and, after first hiding in a mosque, they travelled to the coast and from there by boat to Kenya. After about a fortnight there, they say that they met a friend of the applicant's father who then arranged for the sale of a car that they had left behind in Somalia. Thereafter their friend helped them to get to the United Kingdom where, as I have said, they first applied for asylum.

The ORAC decision

9 9. A negative decision was issued in respect of his application on 31 ^st May, 2006, and was communicated to the applicant by letter dated 26 ^th June, 2006. It is this decision that is the subject of the present challenge. In the decision, the authorised ORAC officer accepted that country of origin information supported the possibility that the applicant might, as a member of a minority clan in Somalia, be at risk of persecution. It was also accepted that the applicant had injuries that might be construed as having been inflicted intentionally by another person, but the officer noted that this, in itself, was not proof of past persecution. The officer went on to make several negative credibility findings in respect of the applicant, primarily based on what the officer contended was a lack of knowledge of matters set out in country of origin information which was appended to the s. 13 report. Having concluded that there were grave credibility issues surrounding the claim, and recommended that he not be declared a refugee, the ORAC officer found that because the applicant had lodged an application in another state party to the Geneva Convention that s. 13(6)(d) of the Refugee Act 1996, as inserted by s. 7(h) of the Immigration Act 2003, applied. This conclusion triggered the application of s. 13(5) of the Act of 1996, as inserted by s. 7(h) of the Immigration Act 2003, to the applicant. In effect, therefore, the applicant was precluded from having an oral appeal before the Refugee Appeals Tribunal ('RAT') but instead, was confined to an appeal on the papers.

The issues in the case

10 10. The applicant's challenge to the ORAC decision is based on a number of interrelated grounds which I would summarise as follows. The applicant complains that the ORAC officer's treatment of credibility was based on a flawed interpretation of the country of origin information. In light of this, the application of s. 13(5) of the Refugee Act 1996 to the applicant was impermissible and constitutes a breach of fair procedures and constitutional justice. If s. 13(5) of the Refugee Act 1996, properly interpreted, denies the applicant an entitlement to a full appeal by way of rehearing and confines him to an appeal on the papers then the provision is unconstitutional and incompatible with the European Convention on Human Rights.

11 11. At the outset, I would note that the conclusions in relation to credibility were not an issue that featured to any extent in the written submissions. The latter focused entirely on the absence of an oral appeal hearing. Indeed, it must be said that the criticisms of the approach to credibility are not spelt out in any detail in the statement to ground this application for judicial review or in the...