N (S U) (South Africa) v Refugee Applications Commissioner and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Cooke
• Judgment Date: 30 March 2012
• Neutral Citation: [2012] IEHC 338
• Docket Number: [2007 No. 1362 JR]
• Date: 30 March 2012

N (S U) (South Africa) v Refugee Applications Commissioner & Ors

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

S. U. N. [South Africa]

APPLICANT

AND

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

RESPONDENTS

[2012] IEHC 338

[No. 1362 J.R./2007]

THE HIGH COURT

Judicial Review - Refugee Appeals Tribunal - Absence of oral hearing - "Safe country" - Risk of serious harm - Refugee Act 1996

Facts: The applicant was a native of South Africa who arrived in November 2006 and subsequently claimed asylum. It was his contention that he was at risk of serious harm from a criminal gang if returned to South Africa because of his ethnicity. He outlined incidents where he and his family had been targeted by the gang and he further asserted that state protection was unavailable to him. A report made in response to the application doubted the applicant's credibility and recommended that refugee status should not be awarded because South Africa had been designated a "safe country". In such circumstances, s. 13 (6)(e) of the Refugee Act 1996 ("s 13")applies and there is a presumption the applicant is not a refugee unless he shows reasonable grounds that he is with any appeal to the Refugee Appeals Tribunal must be made without an oral hearing.

Leave for judicial review was sought and granted challenging the legality of allowing an appeal without an oral hearing in the circumstances of the decision reached.

Held by Cooke J that in a case such as the present it is alleged the applicant was untruthful and this was a key factor in the determination of his application, the applicant had to be given the opportunity if refuting the decision on appeal. As such, an oral hearing was necessary to ensure a fair appeal process. The first respondent had a discretion whether to apply s. 13. Such a discretion was not appropriate for use in a case turning primarily or entirely on the applicant's personal credibility.

REFUGEE ACT 1996 S13(5)

REFUGEE ACT 1996 S13(6)(E )

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S12(5)

REFUGEE ACT 1996 (SAFE COUNTRIES OF ORIGIN) ORDER 2004 SI 714/2004

REFUGEE ACT 1996 S11(A)

CONSTITUTION ART 40

REFUGEE ACT 1996 S17(1)

EEC DIR 2005/85 CHAP III

CMSN v GERMANY 1985 ECR 1661

EEC DIR 2005/85 ART 30

EEC DIR 2005/85 ANNEX 2

REFUGEE ACT 1996 S16(1)

REFUGEE ACT 1996 S16(3)

REFUGEE ACT 1996 S13(1)

EEC DIR 2005/85 ART S39

CONSTITUTION ART 30

REFUGEE ACT 1996 S16(1)

REFUGEE ACT 1996 S16(3)

REFUGEE ACT 1996 S16(5)

REFUGEE ACT 1996 S11(1)

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S11B

REFUGEE ACT 1996 S11(5)

REFUGEE ACT 1996 S12(4)B

EEC DIR 2005/85 ART 15.3(A)

EEC DIR 2005/85 RECITAL 27

EUROPEAN CONVENTION ON HUMAN & FUNDAMENTAL FREEDOMS RIGHTS ART 13

SILVER v UK ECHR UNREP ECHR 25.3.1983 APP NO 5947/72

EEC DIR 2005/85 ART 39

EEC DIR 2005/85 ART 39(3)

Z (V) v MIN FOR JUSTICE 2002 2 IR 135

D (A) v REFUGEE APPLICATIONS CMSR UNREP COOKE 2009/112463 2009 IEHC 77

C (X L) v MIN FOR JUSTICE UNREP COOKE 10.2.2010 2010/7/1498 2010 IEHC 148

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

S (M O O ) v RAC UNREP BIRMINGHAM 8.12.2008 2008/57/11930 2008 IEHC 399

EEC DIR 2005/85 RECITAL 21

GLOVER v BLN LTD 1973 IR 388

HAUGHEY, IN RE 1971 IR 217

CONSTITUTION ART 40.3

1 JUDGMENT (No.2) of Mr. Justice Cookedelivered the 30th day of March, 2012

2 1. This case is one of a number which were heard in succession by the Court as cases which raised or turned upon the same issue concerning the absence of an oral hearing upon an appeal to the Refugee Appeals Tribunal from the s.13 Report of the Refugee Applications Commissioner in circumstances where the former determination contained a finding under s. 13 (5) and (6)(e) of the Refugee Act 1996 (as amended) that the applicant for asylum was a national of a country designated by the second named respondent as a "safe country" pursuant to s.12 (4) of that Act.

3 2. The applicant is a national of South Africa who arrived in the State in November 2006 and later claimed asylum. He was interviewed by an officer of the Commissioner under s. 11 of the Refugee Act 1996, on the 21 ^st September, 2007. He claimed to fear persecution if returned to South Africa because he is a member of the Venda ethnic group and as such he and his family had been targeted by a criminal gang who are members of the Zulu ethnicity. He claimed that State protection was unavailable to him in South Africa.

4 3. A report upon the application by an authorised officer of the Commissioner dated the 26 ^th September, 2007, found that the applicant had failed to establish a well founded fear of persecution and recommended that he should not be declared to be a refugee. Part 5 of the report under the heading "Section 13(6) Findings" stated: "As set out above, Section 13(6)(e) of the Refugee Act 1996 (as amended) applies to this applicant. As the applicant is from a country which is designated as a safe country of origin by the Minister, there is a presumption that the applicant is not a refugee unless he shows reasonable grounds for the contention that he is a refugee. Based on the evidence of the well founded section of this report, it is felt that the applicant has not rebutted the presumption that he is not a refugee." The concluding recommendation of the report added: "I also recommend that section 13(6)(e) of the Refugee Act (as amended) is appropriate to this application".

5 4. The "well founded fear section" in the report consists of an analysis of the evidence given by the applicant as to what he said had happened to him in South Africa as a result of having been targeted and attacked, along with other members of his family, as a member of the Venda ethnic group by a Zulu man called "Lucky" and his gang. Two sisters were claimed to have been raped and stabbed to death by "Lucky" in 2001 and in 2005 the same man attempted to kidnap the applicant and his family. In effect the account given by the applicant was not believed. A number of findings were made in that regard:

6 (i) "It is not credible that this group of gangsters would continue to pursue and harass one individual in particular no matter where he would go in South Africa, especially as their activities would not bring them material gain."

7 (ii) In respect of his account of meeting a white man who decided to help him by paying to have him smuggled to Europe: "It is not considered credible that a complete stranger would expend such resources [between 15,000 and 20,000 euros] on a man he had encountered crying on the street, nor is it that the applicant offered a reasonable explanation as to why this may have been the case."

8 5. The report also noted that state protection had been available to the applicant on one occasion when he claimed to have gone to the police but that otherwise the applicant had failed to explore all options for state protection which were open to him. It is clear therefore that the main reason for the negative recommendation was the disbelief of the basis of the claim and the rejection of the applicant's personal credibility.

9 6. By order of the Court (Cooke J.) of the 23 ^rd March, 2010, the applicant was granted leave to apply for a series of reliefs by way of judicial review including an order of certiorari quashing that report and recommendation. In addition, leave was granted to seek the following declaratory reliefs:

10 a B. A Declaration that the second named respondent has acted ultra vires ss. 12(4) and (5) of the Refugee Act 1996, and/or has unlawfully fettered his discretion in making and/or maintaining regulations (safe countries of origin) order designating South Africa as a safe country of origin;

11 b C. A Declaration that S.I. 714/2004 (Safe Countries of Origin Order) is ultra vires and void;

12 c D. A Declaration that the provisions of s. 12(4) of the Refugee Act 1996 and/or S.I. 714/2004 are repugnant to the provisions of theConstitution and/or without prejudice are inconsistent with the provisions of Article 3 of the 1951 Convention relating to the stages of refugee.

13 Leave to seek those reliefs was granted by reference to three grounds which were formulated as follows:

14 a F. The provisions of s. 12(4) of the Act of 1996, and the making of regulations designating countries as presumed safe are inherently inconsistent with the provisions, purpose and objectives of the Refugee Act and discriminate refugee applicants by reason of their race and/or country of origin;

15 b H. The respondent Minister has acted ultra vires s. 12(4) and (5) in designating South Africa as a safe country of origin and/or in maintaining such designation;

16 c I. The provisions of s.l2(4) and of S.I 714/2004 in combination with s. 11(A) and s. 13(5) and (6) are repugnant to the provisions of Article 40 of the Constitution.

17 7. Thus, the central issue to be raised upon the substantive hearing of this application for Judicial review as originally commenced was the legality of the provisions under which South Africa has been designated as a safe country of origin with the consequential effect which those provisions have on the onus of proof faced by the applicant in making the asylum claim and the validity of the relevant statutory instrument of designation.

18 8. As described in more detail in a judgment of the Court given on 9 June 2011, following the grant of leave and the filing of grounds of opposition with an affidavitwhich made mention of certain diplomatic reports relating to the conditions in South Africa relevant to its designation under s 12(4), the applicant sought an order for discovery of that documentation. In that judgment the Court considered that it was not immediately necessary to make an order for discovery because there was a preliminary issue which ought first to...