Nadeja Kramarenko v Refugee Appeals Tribunal, Paul McGarry, the Minister for Justice, Equality and Law Reform, Attorney General and Ireland

• Jurisdiction: Ireland
• Court: High Court
• Judge: Finlay Geoghegan J.
• Judgment Date: 02 April 2004
• Neutral Citation: [2004] IEHC 101
• Docket Number: HC 240/04
• Date: 02 April 2004

[2004] IEHC 101

THE HIGH COURT

HC 240/04

RECORD NO. 2003/5 J.R.

KRAMARENKO v. REFUGEE APPEALS TRIBUNAL & ORS

JUDICIAL REVIEW

BETWEEN:

NADEJDA KRAMARENKO

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL PAUL McGARRY,

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

THE ATTORNEY GENERAL IRELAND

RESPONDENTS

Citations:

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

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

REFUGEE ACT 1996 S2

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION)

AGUILERA-COTA V INS 914 F 2D 1375

INTERNATIONAL FISHING VESSELS V MIN MARINE 1989 IR 149

R V IMMIGRATION APPEALS TRIBUNAL, EX PARTE AHMED 1999 INLR 473

HORVATH V SECRETARY OF STATE FOR THE HOME DEPARTMENT 1999 INLR 7

CANADA (AG) V WARD 1993 2 SCR 689

UNHCR HANDBOOK PAR 53

Synopsis:

- [2004] 2 ILRM 550

Facts: The applicant applied for leave to apply for judicial review of the decision of the RAT refusing her refugee status. The applicant contended that the RAT had erred in law in the reasons given for the refusal. Firstly, the applicant alleged that where an issue was raised as to the credibility of the applicant that the RAT was obliged to make an express finding as to credibility and the RAT had failed to make such a clear finding. Secondly, the applicant contended that the RAT had erred in concluding that the applicant was precluded from asserting that the state was unable to protect her by reason of her failure to go to the police. Thirdly, the applicant contended that the RAT had erred in the assessment of the cumulative effect of the incidents of harassment, intimidation and discrimination. And fourthly, the applicant alleged that the RAT had failed to apply a forward looking test.

Held by Finlay Geoghegan J. in extending the time for the making of the application and granting leave to apply for judicial review that the applicant had established substantial grounds.

Reporter: R.W.

JUDGMENT delivered by

Finlay Geoghegan J.

on the 2nd day of 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 named respondent in his capacity as a member of the Refugee Appeals Tribunal given on the 26^th November, 2002, in which he determined that the applicant is 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,2000applies and hence the application must be made within 14 days on 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 2^nd 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 9^th 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 18^th December, 2002; that he was contacted by counsel to discuss the matter on the 31^st December and again on the 2^nd and 3^rd January to obtain further clarifications. Papers were drafted and a notice of motion issued on the 8^th 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 merits of an application for judicial review. Pressure of work at the end of term and the Christmas vacation caused some of the delay. In addition I am influenced by the fact that the Statement of Grounds is a carefully drafted document which raises very specific grounds for contending the invalidity of the decision which clearly required a full consideration of both the facts of the case and the relevant law, including law from other jurisdictions.

5 Accordingly, I will extend the time for the making of this application up to and including the 8^th January, 2003.

Background Facts

6 The applicant is an ethnic Russian who is a citizen of Uzbekistan. She arrived in the State on the 26^th October, 2001 with her daughter, Elena (born 24.12.84.) and claimed refugee status. She claims to have a well-founded fear of persecution in Uzbekistan by reason of her ethnicity and religion. She also claims that she had to leave Uzbekistan because of such persecution.

7 Following the procedures provided for under the Refugee Act,1996the Refugee Applications Commissioner recommended that she not be declared to be a refugee. She appealed from that decision to the Refugee Appeals Tribunal and an oral hearing was held on the 10^thOctober, 2002, before the second named respondent as a Member of the Tribunal, at which she was represented by solicitor. The second named respondent issued a decision on the 26^th November, 2002.

The Decision of the Tribunal

8 The decision of the second named respondent is essentially divided into three parts. It comprises an analysis of the applicant's case; a recital of submissions made on behalf of the applicant and the Commissioner and the decision. At the end of the latter part it is stated at p.9:-

"For these reasons, I find that the Applicant has not established that there is a reasonable degree of likelihood that she has a well-founded fear of persecution for one of the reasons set out in s. 2 of the Refugee Act,1996(as amended). The Applicant is therefore not entitled to a declaration as to refugee status pursuant to that section."

9 It is submitted on behalf of the applicant that the above conclusion indicates that the Member of the Tribunal reached his conclusion on a cumulative basis by reason of the three matters he deals with in that part of the decision under the heading of "Decision". For the purposes of an application for leave it appears to me that this is the way in which the confested decision ought to be construed.

Substantial Grounds

10 At this stage the applicant is obliged to establish that she has substantial grounds for contending that the decision of the second named respondent is invalid. Insofar as I express conclusions on the propositions of law advanced on behalf of the applicant they are only intended as conclusions of a substantial ground to such propositions.

Cumulative Reasons

11 As already indicated, it is submitted on behalf of the applicant that there were three cumulative reasons set out by the second named respondent for his ultimate conclusions. These were:-

12 i i. his doubts as to the credibility of the applicant; and

13 ii ii. his conclusion that the failure of the applicant and her husband to go to the authorities in Uzbekistan in relation to alleged extortion and consequent persecution of them by a government official, precluded the applicant from asserting that that country was unable or unwilling to provide them with protection from persecution; and

14 iii iii. his conclusion that the incidents of harassment, intimidation and discrimination which he appears to have accepted did occur by reason of the applicant's ethnic background, did not either individually or by reason of their cumulative effect, amount to persecution within the meaning of s. 2 of the Act of 1996.

15 The applicant submits that the Member of the Tribunal committed errors of law in relation to each of the above conclusions and in the alternative that even if an error of law were committed in relation to one such error, such error renders invalid the final conclusion as it was based upon the cumulative effect of all three reasons. I accept, for the purposes of an application for leave that if there are substantial grounds for asserting that the second named respondent erred in law in relation to any one of the above matters that there are substantial grounds for asserting that the final conclusion is invalid.

16 The applicant also contends that the decision is invalid as the second named respondent failed to apply a forward looking test in determining whether the applicant had a well-founded fear of persecution if returned to Uzbekistan.

Credibility

17 The first contention on behalf of the applicant is that where an issue is raised as to the credibility of the applicant that the Tribunal is obliged to make an express finding as to the credibility of the applicant. It is submitted that it is not permissible, simply to indicate doubts about the credibility of the applicant and apparently take such doubts into account in the final conclusion. It is contended that such was done in this case.

18 The credibility of an applicant is often crucial to the determination as to whether or not an applicant is entitled to a declaration of refugee status. Credibility potentially comes into play in two aspects of the assessment of the claim. It is well established that the determination as to whether a person is a refugee within the meaning of s. 2 of the Act of 1996 and the similar definition in the 1951 Geneva Convention, relating to the status of refugee contains both a subjective and objective element. The subjective element requires the applicant to establish that he or she has a fear of persecution for a Convention reason if returned to his/her own country. As assessment as to whether an applicant has such a fear will normally involve an assessment of credibility.

19 The objective element involves the assessment as to whether the subjective fear is well-founded or, as sometimes put, objectively justifiable. Often, and as appears to have been the position in this case, the objective element requires an assessment of objective facts relied upon by the...