Moldovan v The Minister for Justice Equality and Law Reform and Others

JurisdictionIreland
JudgeGilligan J.
Judgment Date29 April 2005
Neutral Citation[2005] IEHC 141
Date29 April 2005
CourtHigh Court
Docket NumberNo. 430 JR/2004

[2005] IEHC 141

THE HIGH COURT

No. 430 JR/2004
MOLDOVAN v MIN FOR JUSTICE & ORS
JUDICIAL REVIEW
IN THE MATTER OF THE ILLEGAL IMMIGRANTS TRAFFICKING ACT, 2000, AND IN THE
MATTER OF ORDER 84 OF THE RULES OF THE SUPERIOR COURTS, 1996
AND IN THE MATTER OF THE CONSTITUTION OF IRELAND, 1937

BETWEEN

ELENA NELA MOLDOVAN
V.
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

REFUGEE ACT 1996 S2

US DEPARTMENT OF STATE COUNTRY REPORTS ON HUMAN PRACTICES 2003

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

REFUGEE ACT 1996 S6(11)(a)(i)

CONSTITUTIONREFUGEE ACT 1996 S16(11)(a)

REFUGEE ACT 1996 (APPEALS) REGS 2002 S9(3)

HAUGHEY, RE 1971 IR 217

O'REGAN v DPP & MACGRUAIRC 2000 2 ILRM 68

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6(3)(d)

VIDAL v BELGIUM 1992 IIHRL A235-B 32

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

BITI v REFUGEE APPEALS TRIBUNAL (RYAN) & ORS UNREP HIGH 24.1.2005

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 38

CONDON v MIN FOR LABOUR 1981 IR 62

Z v MIN FOR JUSTICE 2002 2 IR 135 2002 2 ILRM 215

ROSTAS v REFUGEE APPEALS TRIBUNAL (HAYES) & MIN FOR JUSTICE UNREP HIGH 31.7.2003 2003/46/11163

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFEE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237

KARANAKARAN v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2000 3 ALL ER 449

KIELY v MIN FOR SOCIAL WELFARE 1977 IR 267

G v DPP 1994 1 IR 374

IMMIGRATION: leave

Asylum - Substantial grounds - Well-founded fear of persecution - Whether unqualified constitutional right to obtain attendance and examination of witness - State (Keegan) v Stardust Compensation Tribunal [1986] IR 642 and O'Keeffe v An Bord Pleanála [1993] 1 IR 39 followed - Karnakaran v Secretary of State for the Home Department [2000] 3 All ER 449 approved- Kiely v Minister for Social Welfare [1977] IR 267 and In re Haughey [1971] IR 217 distinguished - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Refugee Act 1996 (No 17), s 16(11)(a) - Constitution of Ireland 1937 - European Convention for the Protection of Human Rights and Fundamental Freedoms 1951, art 6 - Application for leave to apply for judicial review refused (2004/430JR - Gilligan - 29/4/2005) [2005] IEHC 141

MOLDOVAN v MIN FOR JUSTICE & ORS

Facts: The applicant applied for leave to apply for judicial review seeking an order of certiorari quashing the decision of the RAT refusing refugee status and a declaration that s. 16(11)(a)(i) of the Refugee Act 1996 was repugnant to the Constitution. The applicant contended, inter alia, that the Tribunal member failed to have regard to the subjective element of the applicant’s alleged fear. The applicant also contended that the Tribunal member should have permitted the attendance of the applicant’s husband as a witness and that the failure to direct the attendance of the witness breached the applicant’s right to summon a witness to corroborate evidence which was founded on the constitutional principles of fair procedures and due process. As regards s. 16(11)(a)(i), the applicant contended that the section was repugnant because it reserved to the RAT a discretion as to whether to direct the attendance of witnesses.

Held by Gilligan J. in refusing the reliefs sought that there was not sufficient evidence before the Court to support the applicant’s contentions. The RAT member followed the prescriptions of the UNCHR Handbook and on the basis of the evidence before him, it was reasonable for the member to have arrived at the conclusion contained in the decision. There was no departure from constitutional justice. The reality of the situation was that the applicant’s husband was entitled to attend voluntarily and to have made an application to have his evidence admitted. As regards s. 16(11)(a)(i) the applicant had not made out a case that she was adversely affected by the operation of the relevant section.

Reporter: R.W.

Gilligan J.
1

The applicant is a Romanian national who arrived in Ireland on 13th September, 2002. She was born on 8th March, 1975, and was married on 20th May, 1991. She has one son who was born in 1990 and who is currently residing in Romania. The applicant is an Orthodox Christian.

2

The applicant applied for asylum based on a fear of persecution due to her membership of the Roma community. She said that on 17th January, 1996, her house was burned down and that since that date, she and her husband had been without accommodation in Romania as the council refused to provide them with another house. The applicant says she believes the house may have been petrol bombed. She stated that she was unable to get work in Romania because of discrimination against members of the Roma community. The applicant was never gainfully employed. She also felt she had been discriminated against in the area of health.

3

The applicant's application for asylum failed at first instance and on appeal to the Refugee Appeals Tribunal. The Tribunal member applied s.2 of the Refugee Act,1996 (as amended) and found that the applicant had failed to establish a "well founded fear" of persecution. The Tribunal member stated that the term "well founded fear" imports a subjective and an objective element, both of which must be taken into consideration, and in this instance, he found that the applicant had failed to establish the objective dimension of her alleged fear of persecution.

4

In relation to the subjective dimension of her alleged fear, the significant event is the house fire which occurred in 1996. Although the applicant stated her belief that the fire may have been started by a petrol bomb, the Tribunal member found that she had adduced no evidence whatsoever to substantiate this belief. Furthermore, a newspaper submitted by her husband as part of his application stated that the spokesperson for the local fire service believed the explosion was caused by a gas heater.

5

In relation to the applicant's claim that that she felt discriminated against in the areas of housing, employment and health, the Tribunal member acknowledged the unfortunate circumstances of the applicant's situation in Romania. However, he held that there was no evidence to suggest that they were the result of persecution on the basis of the applicant's membership of a particular ethnic group.

6

The Tribunal member then considered the US Department of State Country Reports on Human Practices in relation to Romania which was published on 31st March, 2003, and determined that there were sufficient structures and institutions in place in the applicant's country of origin to deal with the applicant's complaints.

7

Having examined all the evidence and submissions on behalf of the applicant, the Tribunal member was satisfied that her appeal must fail as she had failed to establish an objective dimension to her alleged fear. He determined therefore that she did not have a well founded fear of persecution and affirmed the recommendation of the Refugee Applications Commissioner.

8

The application is made pursuant to s.5 of the Illegal Immigrants (Trafficking) Act,2000 for leave to proceed by way of judicial review to seek to quash the decision of the Tribunal member to refuse refugee status.

9

The applicant applies for leave to seek:

10

(1) an order ofcertiorari quashing the recommendation of the Refugee Appeals Tribunal that the applicant be refused a declaration of refugee status and

11

(2) a declaration that the provisions of s.6(11)(a)(i) of the Refugee Act,1996, (as amended) are repugnant to the provisions of Bunreacht na hÉireann, 1937.

12

The grounds on which the applicant applies for leave for judicial review are set out in the statement of grounds filed on the applicant's behalf on 18th May, 2002.

13

(a) It is contended, on behalf of the applicant, that in arriving at his decision, the Tribunal member failed to have regard to the subjective element of persecution and consequently, failed to make a proper decision as to whether she has a well-founded fear in accordance with s.2 of the Refugee Act,1996. In relation to this subjective element, counsel referred to the belief of the applicant that her house was petrol bombed. Counsel also contended that in making his determination, the Tribunal member drew his conclusion on the basis of evidence not in the applicant's file but in her husband's file.

14

(b) It is contended that the Tribunal member made an error of law in failing to evaluate the evidence of discrimination against the applicant in relation to housing. The applicant's evidence was that following the burning of her house, the council failed to provide her with another house.

15

(c) It is submitted that the Tribunal member selected objective evidence in a partial and biased manner.

16

(d) It is asserted that the Tribunal member wrongly failed to consider direct evidence of the suspected petrol bombing of the applicant's house.

17

(e) It is contended that the Tribunal member failed to have regard to the United Nations Handbook on Procedures and Criteria for determining Refugee Status.

18

(f) It is asserted that the Tribunal member failed to apply the benefit of the doubt to the applicant.

19

(g) It is submitted that the Tribunal member failed to consider the reasons for the fear of persecution that were set out in the applicant's ground of appeal. The applicant contended that in arriving at his decision, the Tribunal member only considered the fear of persecution on the ground of race but did not deal with the possibility of persecution on the basis of either nationality or membership of a particular social group.

20

(h) It is contended that the decision of the Tribunal member was unconstitutional as he failed...

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