N.T.P (Vietnam) v Refugee Applications Commissioner and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 15 April 2015
• Neutral Citation: [2015] IEHC 234
• Court: High Court
• Date: 15 April 2015

[2015] IEHC 234

THE HIGH COURT

[No. 390 J.R./2010]

P (NT) [Vietnam] v Refugee Applications Cmsr & Ors

BETWEEN

N.T.P (VIETNAM)

APPLICANT

AND

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

RESPONDENTS

Asylum – The Refugee Act 1996 (as amended) – Fear of persecution – Breach of fair procedures – Order of certiorari.

Facts: The applicant filed for an order of certiorari to quash the decision of the first named respondent issued in respect of the applicant's application for refugee status. The applicant delayed in applying for asylum after his arrival in Ireland on the basis of fear of persecution in Vietnam based on his involvement with the Catholic Church. The applicant arrived in Ireland with a valid visa issued by the Irish Embassy in Vietnam in December 2009.

Mr. Justice Eagar held that the application for an order of certiorari to quash the decision of the first named respondent issued in respect of the application for refugee status would be granted. Following the case of U.P. v. Minister for Justice Equality and Law Reform & Ors [2014] IEHC 567, the Court held that the Refugee Applications Commissioner had failed to understand the reasonableness of applicant's explanation for the brief delay in seeking asylum. The Court directed that the matter would proceed with an oral appeal against the recommendation of the first named respondent. The Court stated that the oral appeal would be heard by new members of the Refugee Appeals Tribunal other than the previous members.

1 1. This is a telescoped application to quash the decision of the first named respondent issued on the 23 ^rd February, 2010 in respect of the applicant's application for refugee status.

2 2. The notice of motion in this case was issued on the 30 ^th March, 2010 and the reliefs sought were as follows:-

1 ) An order of certiorari quashing the decision of the first named respondent issued on the 23 ^rd February, 2010 in respect of the applicant's application for refugee status;

2 ) a declaration that the first named respondent erred in law and/or acted in breach of fair procedures in its determination of the applicant's application for refugee status;

3 ) a declaration that s. 13(5) (a) of the Refugee Act 1996 (as amended), fails to comply with the minimum standards prescribed by Directive 2005/85/EC of the 1 ^st December, 2005 by depriving the applicant of an effective remedy against the finding that the applicant should be denied an oral hearing;

4 ) a declaration that s. 13(5) (a) of the Refugee Act 1996 (as amended) imposes an unwarranted violation of the applicant's right to constitutional and natural justice such that it is unconstitutional and is in breach of Directives 2004/83/EC and 2005/85/EC;

5 ) a declaration that the procedure for the determination of asylum application provided for in the Refugee Act 1996 (as amended) and the European Communities (Eligibility for Protection) Regulations 2006 failed to comply with the minimum standards prescribed by Directive 2005/85/EC of the 1 ^st December, 2005 by depriving the applicant of an effective remedy against the first instance determination of the application as required by Article 39 of the Directive;

6 ) the other relief sought was for an extension of time.

3 3. The statement of grounds which accompanied the notice of motion sought relief on the following grounds:-

1 ) The respondent erred in law in holding that s. 13(6) (c) of the Refugee Act 1996 (as amended) applied to the applicant's case without making any finding that the applicants delay in applying for refugee status was without reasonable cause;

2 ) in the alternative to (1) the respondent acted in breach of the applicant's right to fair procedures in failing to give any reasons as to how it could have found that the applicant's delay in applying for refugee status was without reasonable cause;

3 ) the respondent failed to give any or any adequate reasons for its decision to apply s. 13(6);

4 ) the first named respondent failed to act in accordance with Directive 2004/83/EC and Directive 2005/85/EC and the European Communities (Eligibility for Protection) Regulations 2006;

5 ) an application of 13(5) (a) of the Refugee Act 1996 (as amended) to the applicant's case denied the applicant an oral appeal hearing. The applicant has no right of appeal against this decision to deny him an oral appeal. This lies in breach of the provisions of Directive 2005/85/EC;

6 ) further to (5) the reasons for denying the applicant an oral appeal as applied to the facts of the applicant's case does not constitute a sufficient reason for the restriction of the applicant's right to constitutional and natural justice and fair procedures. It deprives the applicant of the opportunity of giving oral evidence and in calling oral evidence from witnesses in respect of his case including an issue as to why he did not apply for refugee status earlier in Ireland. It is unconstitutional and in contravention of Directives 2004/83/EC and 2005/85/EC;

7 ) the applicant's claim for a declaration of refugee status under s. 17(1) of the Refugee Act 1996 (as amended) has not been lawfully determined by means of a procedure which complies with the minimum standards required to be met by Council Directive 2005/85/EC of the 1 ^st December, 2005 and that the procedure by which the applicant's claim has been processed deprives the applicant of an effective remedy in the first instance determination of its application for asylum before a court or tribunal and so fails to comply with the requirements of chapter 5 of the said Directive.

4 4. At the commencement of the proceedings this Court indicated that it would not consider the issues relating to the constitutionality of the section and any alleged breaches of the European Convention on Human Rights until a determination was made on the basic issues arising from the case in question.

5 5. The notice of motion was grounded also on the application of the affidavit of the applicant. He said that he is a national of Vietnam, he is a Catholic and travelled to and entered Ireland lawfully on the 2 ^nd December, 2009 with a Vietnamese priest who was invited by Father M. of a North Dublin city parish. He accompanied the priest and they obtained visas prior to their departure and thus entered the State lawfully.

6 6. On the 5 ^th January, 2010 the priest returned to Vietnam and the applicant applied for refugee status in Ireland because he feared persecution if he returned to Vietnam on the 11 ^th January, 2010. An ASY1 Form was completed on the 14 ^th January and his questionnaire was completed on the 23 ^rd January, 2010. He attended the first named respondent for an interview on the 5 ^th February, 2010 and on the 23 ^rd February, 2010 the first named respondent issued its report in which it recommended that he be refused refugee status and determined that he be denied an oral appeal hearing and instead be restricted to a written appeal. He said that this deals with issues arising out of his section 11 interview which this Court will deal with further on in this judgment. Further he says that he was advised that there would be no appeal against this decision to deny him an oral appeal hearing. He also said that a number of credibility findings were made that he wanted to challenge not least because the answers he gave to questions during the interview may have been lost in translation and that he could only challenge these findings effectively if he was allowed an oral hearing. He then deals with the delay in issuing these proceedings as they stem from fundamental human rights.

7 7. In relation to the application for the extension of time, counsel on behalf of the respondent indicated that because the applicant stated in a letter dated the 8 ^th March, 2010 that counsel had been retained to give an opinion on possible grounds to judicially review the recommendation it appeared that the applicant had formed an intention to judicially review the finding within the fourteen days time limit and in these circumstances the respondents did not raise any issue in respect of the delay in the present case.

Section 11 interview

8 8. The section 11 interview took place on the 5 ^th February, 2010 and the interview was conducted in Vietnamese with an interpreter present. The relevant portions of the section 11 interview were contained in the report pursuant to s. 13 (1) of the Refugee Act 1996 (as amended) prepared by the first named respondent.

9 9. The report of the Refugee Applications Commissioner was dated the 17 ^th February, 2010 although the interviewing officer of the Commissioner who interviewed the applicant made her recommendation on the 16 ^th February, 2010.

(a) Persecution

The first named respondent outlined the applicant's case. The applicant stated that he had problems in Vietnam going back to the Vietnam War when he was working for the Americans. His land and house were taken by the government and he was sent to re-education camps from 1977 to 1982. He tried to escape from Vietnam in 1982, 1984 and 1986. In 1986 he was caught by the police and imprisoned from December 1986 until August 1987. The applicant had no problems from August 1987 until 2007 when he then became more involved with the Catholic Church. From the 20 ^th November, 2008 to the 25 ^th November, 2008, he had to attend the police station every day where he was questioned and then released in the evening. He stated that from November 2008 until December 2009 he went into hiding and he had no further problems from the authorities in Vietnam (save that he was in hiding). He then had the opportunity to leave Vietnam and come to Ireland.

The first named respondent said that the claim may be considered to constitute a severe...