N.K. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judgment Date: 02 April 2004
• Date: 02 April 2004
• Docket Number: [2003 No. 5
• Court: High Court

[2004] IEHC 240

High Court

[2003 No. 5 JR]

N.K. v. Refugee Appeals Tribunal

N.K.

Applicant

and

Refugee Appeals Tribunal, Paul McGarry, The Minister for Justice, Equality and Law Reform and The Attorney General

Respondent

Cases mentioned in this report:-

Aguilera-Cota v. INS (1990) 914 F. 2d 1375, (9th Cir.).

Canada (Attorney General) v. Ward [1993] 2 S.C. R. 689.

International Fishing Vessels Ltd. v. The Minister for the Marine [1989] I.R. 149.

Milan Horvath v. Secretary of State for the Home Department (United Nations High Commissioner for Refugees Intervening) [1999] I.N.L.R. 7.

R. v. Immigration Appeals Tribunal ex parte Sardar Ahmed [1999] I.N.L.R. 473.

Asylum - Judicial review - Application for leave - Extension of time - Persecution - Non-state persecution - Cumulative effect - Well founded fear - Whether substantial grounds - Credibility - Whether adjudicator erred in failing to make an express finding on credibility - Whether adjudicator erred in law in failing to assess credibility in context of country of origin information - Whether failure to report persecution to police precluded applicant from asserting inability of State to provide protection - Whether incidents amounted to persecution - Whether failure to apply forward looking test error of law - Whether good and sufficient reason - Refugee Act 1999 (No. 17), s. 2 - Illegal Immigrants (Trafficking) Act 2000 (No. 29), s. 5.

Leave to apply for judicial review

The facts have been summarised in the headnote and are more fully set out in the judgment of Finlay Geoghegan J., infra.

An application for leave to apply for relief by way of judicial review was brought by originating motion on notice dated the 8th January, 2003 and grounded on a statement of grounds of the same date.

The application was heard by the High Court (Finlay Geoghegan J.) on the 8th and 9th May, 2003.

The applicant applied for leave for judicial review seeking, inter alia, to quash the decision of the second respondent in which he determined that the applicant was not entitled to a declaration of refugee status. The applicant contended that she had substantial grounds for asserting that the second respondent erred in law in circumstances (i) where an issue as to the credibility of the applicant was raised, in failing to make any clear and express adverse credibility finding against her, (ii) in failing to consider credibility in the context of available country of origin information, (iii) in concluding that the applicant was precluded from asserting a failure of state protection because she had not reported incidents to the police, (iv) in failing to assess cumulatively the effect of incidents accepted in evidence and (v) in failing to apply a forward looking test in determining whether the applicant had a well founded fear of persecution.

Held by the High Court (Finlay Geoghegan J.), in extending the time for the application and in granting leave, 1, that the applicant had substantial grounds for contending that the adjudicator at first instance was obliged, where an issue was raised as to the credibility of the applicant, to assess the applicant's credibility either in general or on specific factual issues and to make a clear finding on the issue of the applicant's credibility.

2. That there were substantial grounds for contending that where a specific finding on credibility was made, the finding must be based upon reasons that bore a legitimate nexus to the adverse finding.

Aguilera-Cota v. INS (1990) 914 F. 2d 1375, (9th Cir.) and International Fishing Vessels v. The Minister for the Marine[1989] I.R. 149 considered.

3. That there were substantial grounds for contending that the assessment of credibility be carried out in the context of an evaluation of the conditions in the applicant's country of origin.

Milan Horvath v. Secretary of State for the Home Department (United Nations High Commissioner for Refugees Intervening) [1999] I.N.L.R. 7 and R. v. Immigration Appeals Tribunal ex parte Sardar Ahmed [1999] I.N.L.R. 473 considered.

4. That there were substantial grounds for contending that a failure to approach the State authorities would not necessarily defeat the applicant's claim and that the appropriate test to be applied was whether it was objectively reasonable for the claimant not to have sought the protection of his home authorities.

Canada (Attorney General) v. Ward [1993] 2 S.C. R. 689 considered.

5. That there were no substantial grounds for contending that a forward looking test must be applied to an assessment of well founded fear of persecution in circumstances where the applicant's claim was based entirely on past events which the tribunal had found did not occur and where the applicant did not rely on a change of conditions in the country of origin.

6. That given the complexities of the applicant's case, there were good and substantial reasons for extending the 14 day period for seeking judicial review.

Cur. adv. vult.

Finlay Geoghegan J. 2nd April, 2004

1 This is an application for leave to issue an application for judicial review seeking primarily to quash a decision of the second respondent in his capacity as a member of the Refugee Appeals Tribunal given on the 26th November, 2002, in which he determined that the applicant was not entitled to a declaration of refugee status and that the recommendation of the Refugee Appeals Commissioner to that effect should be upheld.

2 The application is one to which s. 5 of the Illegal Immigrants (Trafficking) Act 2000 applies and, hence, the application must be made within fourteen days of the date upon which the applicant was notified of the decision. Also, the applicant must have substantial grounds for contending that the decision is invalid or ought to be quashed.

Extension of time

3 The applicant has deposed to the fact that she received notice of the decision on the 2nd December, 2002. On that date she attended at the office of her solicitor who had represented her before the tribunal but was unable to see her solicitor due to his commitments until the 9th December, 2002. On that date she instructed him to obtain an opinion of counsel on the merits of an application for judicial review. The applicant's solicitor has deposed to the fact that a brief was sent to counsel on the 18th December, 2002 and that he was contacted by counsel to discuss the matter on the 31st December and again on the 2nd and 3rd January, to obtain further clarifications. Papers were drafted and a motion on notice issued on the 8th January, 2003.

4 On these facts I am satisfied that there is good and sufficient reason for extending the 14 day period in s. 5(2)(a) of the Act of 2000. The applicant herself moved immediately to seek advice on the...