N.A.A. v Refugee Applications Commissioner

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 23 February 2007
• Neutral Citation: [2007] IEHC 54
• Docket Number: [2005 No. 457 JR]
• Court: High Court
• Date: 23 February 2007

[2007] IEHC 54

THE HIGH COURT

[457 J.R./2005]

ADAN v REFUGEE APPLICATIONS COMMISSIONER & REFUGEE APPEALS TRIBUNAL

JUDICIAL REVIEW

BETWEEN

NAFISA ABDI ADAN

APPLICANT

AND

THE REFUGEE APPLICATIONS COMMISSIONER AND THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

NOTICE PARTY

EEC REG 343/2003 ART 16(1)(e)

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S13(1)(a)

REFUGEE ACT 1996 S13(1)(b)

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S13(6)

REFUGEE ACT 1996 S11

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

REFUGEE ACT 1996 S11(1)

REFUGEE ACT 1996 S11(2)

EEC REG 343/2003 ART 3.2

K (G) & ORS v MIN JUSTICE & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

SAVIN v MIN JUSTICE UNREP SMYTH 7.5.2002 2002/13/3176

OKUNGBOW v REFUGEE APPEALS TRIBUNAL & ORS RAC 8.6.2005

CROITRORIU v REFUGEE APPEALS TRIBUNAL & ORS UNREP MACMENAMIN 21.6.2005 2005 IEHC 476

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

REFUGEE ACT 1996 S16(2)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(a)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)(f)

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 3

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 7(1)

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 7(9)

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 7(10)

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 7(11)

ROCHE, STATE v DELAP 1980 IR 170

BUCKLEY v KIRBY & DPP 2000 3 IR 431 2001 2 ILRM 395

MCGOLDRICK v BORD PLEANALA 1997 1 IR 497

REFUGEE ACT 1996 S16(1)

REFUGEE ACT 1996 S16(17)

REFUGEE ACT 1996 S16(17)(b)

REFUGEE ACT 1996 S17

REFUGEE ACT 1996 S17(1)

REFUGEE ACT 1996 S17(1)(a)

REFUGEE ACT 1996 S17(1)(b)

REFUGEE ACT 1996 S16(18)

RUSU v REFUGEE APPLICATIONS COMMISSIONER & MIN JUSTICE UNREP HANNA 26.5.2006

IMMIGRATION

Asylum

Judicial review - Breach of fair procedures - Whether decision at first instance subsisted after determination of appeal - Whether decision of Commissioner "merged" with decision of Tribunal on appeal - Whether determination of appeal precluded judicial review of first instance decision - Dublin Convention (Implementation) Order 2000 (SI 343/2000), arts 3, 7, 10 and 11 - Refugee Act 1996 (No 17), ss 11, 13, 16 and 17 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5- Council Regulation (EC) 343/2003, art 16 (1) (e) - Leave refused (2005/457JR - Finlay Geoghegan J - 23/2/2007) [2007] IEHC 54A(NA) v Refugee Applications Commissioner

The applicant sought leave to apply by way of judicial review for an order of certiorari quashing the decision of the Commissioner and the Tribunal refusing to grant her refugee status. Following the making of the decision of the Commissioner, the applicant lodged an appeal to the Tribunal and also requested the Commissioner to quash its decision and conduct a fresh interview and investigation on the basis that fair procedures had not been afforded to the applicant. Prior to the issuing of the Notice of Motion seeking leave to institute judicial review proceedings, the Tribunal determined the appeal and upheld the recommendation of the Commissioner. Subsequently, the applicant sought an order of certiorari quashing the decisions of the Commissioner and the Tribunal.

Held by Finlay Geoghegan J. in refusing the application for leave: That notwithstanding the decision of the Tribunal in this case, there remained an extant decision of the Commissioner, which as a matter of law could be the subject of an order of certiorari. Furthermore, the fact that an appeal in this case had been decided was not a bar to the court exercising its discretion to grant certiorari. However, the court ought only to exercise its discretion to grant certiorari of a decision which has been the subject of a decided appeal where there exist special circumstances which make such late interference necessary to do justice for the parties. Notwithstanding that the applicant established substantial grounds for contending that fair procedures were not followed by the Commissioner, the applicant failed to establish the existence of special circumstances, such as would permit the court to grant leave at this stage of the proceedings.

Reporter: L.O'S.

1 JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 23rd day of February, 2007 .

2 The applicant is a Somali who states she arrived in Ireland and applied for asylum in August, 2004. She completed an ASY 1 application form and asylum questionnaire in August, 2004. She gave her date of birth as the 21st October, 1987 and was treated as a minor and put in the care of the Health Service Executive, East Coast Area.

3 She attended for interview at the office of the Refugee Applications Commissioner ("ORAC"), as requested on the 2nd February, 2005, accompanied by Ms. Gemma Doyle a project worker with the HSE, East Coast Area to whom she had been assigned and a case worker from the Refugee Legal Service ("RLS").

4 The applicant did not disclose, as she was obliged to do, that prior to arriving in Ireland she had been in the United Kingdom and there applied for asylum and had been refused. In considering the application, ORAC had identified this fact from the finger print taken from the applicant and the URODAC facilities. The United Kingdom Home Office confirmed on the 7th October, 2004, to ORAC that a person with the applicant's fingerprints had made an application for asylum in the United Kingdom on the 30th August, 2002, under the name Hannan Mohamed Osman with a stated date of birth of 26th April, 1984, and from Somalia. On the 8th December, 2004, the United Kingdom confirmed that they would accept the transfer of the applicant for further consideration of her asylum application under the terms of article 16(1)(e) of Council Regulation (EC) No. 343 of 2003.

5 Notwithstanding this, it appears that a determination must have been made by or on behalf of the first named respondent ("the Commissioner") and that the applicant's pending asylum application would be considered and determined in this jurisdiction.

6 The applicant's advisors were unaware of any of the above when they accompanied her to interview on the 2nd February, 2005. The applicant was unaware that the Irish authorities were now aware of her earlier application in the United Kingdom under the different name and date of birth.

7 The interviewer commenced the interview without disclosing the facts known to him in relation to the United Kingdom application. It appears from the affidavit of Ms. Doyle, the HSE project worker that the interview commenced by the applicant being asked what are described as standard questions relating to her name and date of birth and then more specific questions regarding her mode of travel to Ireland and why she sought asylum. The applicant repeated the facts set out in her ASY 1 form and questionnaire, many of which are now acknowledged to be untrue. The interviewer then called for a break in the interview. During this break he asked Ms. Doyle and the case worker from the RLS to speak to him in the absence of the applicant. He then disclosed to them that he had received notification from the Untied Kingdom Home Office that the applicant had made a previous claim for asylum. Ms. Doyle states that she then asked that the interview be adjourned and rescheduled to another day or at the very least that she be afforded an opportunity of speaking to the applicant in private before the interview recommenced. Both of these requests were refused by the interviewer and the interview then resumed.

8 Ms. Doyle in her affidavit avers that when the interview resumed "the interviewer adopted a more aggressive and confrontational style of interview. As a result of the foregoing, the applicant became extremely distressed and at one point began to cry uncontrollably". It then appears that Ms. Doyle sought and obtained a second break in the interview during which she spoke to the applicant's lawyer in the RLS who was not present.

9 A further request was then made by Ms. Doyle for the interview to be adjourned. This was refused by the interviewer. It appears the point was taken that the applicant was not a minor and could make her own decision. It appears from Ms. Doyle's affidavit that the interviewer then asked the applicant if she was happy to continue and that she replied "yes". The applicant at paragraph 15 of her affidavit explains her understanding of the options then available in the following way. "The interviewer declined to suspend the interview and stated that if we walked away from the interview now, there would be no way that we could come back on another day".

10 The final stage of the interview is described by Ms. Doyle at paragraph 10 of her affidavit in the following terms:

"Towards the end of the interview the applicant began to set out the true facts regarding her case of asylum. Whereas the interviewer made a note of what she was saying and asked a number of questions, he did not seem to be particularly interested in pursuing the matter. At the end of the interview, I asked the interviewer why he had not asked more questions about why the applicant had left the United Arab Emirates to which he replied that it was not relevant since the applicant had already lied."

11 The report and recommendation of the Commissioner pursuant to s. 13(1) of the Refugee Act 1996 (as amended) was prepared by the authorised officer who had conducted the interview on the following day the 3rd February, 2005 and the recommendation included by him therein stated "I have considered the information in relation to Nafisa Abdi Adan. I am satisfied that she has...