Nelly Mokili Biti v John S. Ryan acting as the Refugee Appeals Tribunal (RAT)

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 24 January 2005
• Neutral Citation: [2005] IEHC 13
• Court: High Court
• Docket Number: [No.361 JR/2004]
• Date: 24 January 2005

[2005] IEHC 13

THE HIGH COURT

[No.361 JR/2004]

BITI v REFUGEE APPEALS TRIBUNAL (RYAN) & ORS

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT, 1996 AS AMENDED

THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000

BETWEEN

NELLY MOKILI BITI

APPLICANT

AND

JOHN S. RYAN ACTING AS THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

G v DPP 1994 1 IR 374

RSC O.84 r20(2)(b)

RSC O.40 r4

MESSAOUDI & EDOBOR v REFUGEE APPEALS TRIBUNAL & ORS UNREP FINLAY-GEOGHEGAN 29.7.2004

SAMBASIVAM v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2000 IMM AR 85

MARIO v SECRETARY OF STATE FOR THE HOME DEPARTMENT 1998 IMM AR 312

REFUGEE ACT 1996 S8

REFUGEE ACT 1996 S9

REFUGEE ACT 1996 S16

REFUGEE ACT 1996 S16(10)

REFUGEE ACT 1996 S16(6)

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S17(1)(a)

REFUGEE ACT 1996 S3

REFUGEE ACT 1996 S16(2)(a)

MCDONALD IMMIGRATION LAW & PRACTICE 4ED PARA12.58

SECRETARY OF STATE FOR THE HOME DEPARTMENT v ARIF 1999 IMM AR 271

REFUGEE ACT 1996 S16(8)

IMMIGRATION

Leave

Refugee status - Refusal of appeal - Substantial grounds - Fear of persecution - Fair procedures - Delay in giving decision after oral hearing - Relevant date for assessment of claim - Whether country of origin information up to date of hearing should be considered - AM v Refugee Appeals Tribunal (Unrep, Finlay Geoghegan J, 29/7/2004) and Secretary of State for the Home Department v Arif [1999] Imm AR 271 followed - Refugee Act 1996 (No 17) - Illegal Immigrants (Trafficking) Act 2000 (No 29) - Leave to issue judicial review granted - (2004/361JR - Finlay Geoghegan J - 24/01/2005) [2005] IEHC 13 B (NM) v Ryan

The applicant brought an application for leave to issue judicial review proceedings pursuant to s.5 of the Act of 2000, seeking an order quashing the decision of the first named respondent upholding a recommendation of the Refugee Applications Commissioner that the applicant’s claim for a declaration of refugee status be refused. The applicant relied on a number of grounds in support of her application, namely: (1) That the respondent breached fair procedures by failing to adjourn the oral hearing of the appeal due to the non- availability of the applicant’s husband. (2) That the respondent was guilty of inordinate and unreasonable delay in making his decision subsequent to the oral hearing. (3) That the applicant did not receive fair procedures due to the frequent interruptions by the first named respondent of the evidence of the applicant and the concentration of counsel. (4) That the first named respondent was obliged to determine the appeal on the basis of the evidence available at the date of the oral hearing and to deliver a decision thereon and (5) That the first named respondent failed to consider county of origin information in relation to the period after 9 December 2003.

Held by Finlay Geoghegan in granting leave on a limited number of grounds:

That the applicant established substantial grounds for asserting that the decision of the first named respondent was invalid on the basis of the arguments advanced in support of grounds one, two and five.

Reporter: L.O’S.

Ms. Justice Finlay Geoghegan

1 This is an application for leave to issue judicial review brought pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act,2000 seeking to quash a decision of the first named respondent dated 22nd March, 2004, upholding a recommendation of the Refugee Applications Commissioner that the applicant's claim for a declaration of refugee status be refused.

2 The applicant is a national of the Democratic Republic of the Congo. She was married to her husband SM-N in the Congo on 7th March, 1998. Her husband, it is claimed, was wrongly suspected by the authorities of being involved with or providing information to rebel forces in the Congo and was subjected to a number of arrests, incarceration beatings and torture. The applicant did not directly suffer this suspicion or treatment. However, she claims that she was threatened and verbally abused when her husband was being arrested and also claims that it is well documented that in the Congo rape and sexual violence are perpetrated against women as a method of attempting to force women to betray their husbands and menfolk. It is claimed that her husband's life was believed to be in danger and as a consequence hers also and that for that reason they fled the Congo and arrived in Ireland in June, 2001.

3 Both the applicant and her husband made claims for refugee status in this country on 20th June, 2001.

4 The applicant's husband was granted refugee status on 4th April, 2002 at first instance.

5 For reasons which have not been explained the applications of her husband and the applicant were dealt with separately. It appears that in August, 2002 the Refugee Applications Commissioner issued a recommendation that the applicant be refused a declaration of refugee status. An appeal dated 21st August, 2002 was lodged in which an oral hearing was requested.

6 The oral hearing was first listed for 18th November, 2002 and attended by the applicant, her husband and legal advisors but adjourned because of the unavailability of the presenting officer.

7 The appeal hearing was rescheduled for 7th January, 2003 and heard on that date notwithstanding that the applicant's husband was unavailable due to illness.

8 On 28th October, 2003, a letter was written by the then solicitors for the applicant enquiring as to the availability of the decision of the first named respondent.

9 On 11th December, 2003, an officer of the Refugee Appeals Tribunal wrote to the solicitors enclosing certain country of origin information dated between 1st July, 2003 and 9th December, 2003, which had been consulted by the first named respondent in connection with the appeal and inviting submissions thereon. An initial response was sent on 22nd December objecting to the member of the Tribunal considering any such information which arose after the date of the hearing and complaining about the delay in making the decision which it was contended was prejudicial to the applicant. A detailed response was sent from the Tribunal on 8th January, 2004, justifying the approach of the tribunal and indicating that if the applicant's solicitors wished to make a submission orally to the Tribunal member that they could do so by indicating same within seven days or in the alternative could send written submissions within twenty one days. On 26th January the then solicitor for the applicant submitted a short set of written submissions and declined the invitation to make oral submissions.

10 The Tribunal member made a decision dated 22nd March, 2004. This was communicated to the applicant with a letter dated 13th April, 2004.

11 The notice of motion seeking leave was issued on 28th April, 2004 and is grounded on an affidavit of the applicant sworn on 26th April, 2004 and on an affidavit of Justin Sadleir solicitor now acting for the applicant sworn 26th April, 2004. Mr. Sadleir was instructed on 23rd April, 2004. He had not previously been involved in the proceedings before the tribunal.

12 The decision of the first named respondent is a decision to which s. 5 of the Act of 2000 applies and hence to obtain leave the applicant must establish that she has "substantial grounds" for asserting that the decision is invalid. In accordance with the decision of the Supreme Court inIn Re Article 26 of the Constitution and the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360 to constitute substantial grounds the alleged grounds must be equivalent to "reasonable" "arguable" and "weighty" and must not be "trivial or tenuous".

13 Where, as in this application certain of the grounds rely upon assertions of fact, the application must also in relation to those facts meet the standard set out by the Supreme Court inG v. Director of Public Prosecutions [1994] 1 I.R. 374. In that case the test set out by Finlay C.J. at p. 378 for an application for leave ex parte included establishing:-

"(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review,

(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks."

14 Applying "the substantial grounds" standard in s. 5 in the Act of 2000 to the above test it appears that the applicant herein must establish, in relation to those grounds which rely upon factual assertions,inter alia.

15 (i) that the facts averred to in the affidavits would be sufficient, if proved, to support substantial grounds for the form of relief sought by judicial review; and

16 (ii) that on those facts substantial grounds in law can be made out that the applicants are entitled to the relief which she seeks.

17 The affidavits herein and in particular the affidavit sworn by the solicitor for the applicant reflect a misunderstanding of the proper purpose and role of an affidavit in support of an application for leave to issue judicial review. Order 84 r. 20 (2) (b) of the Rules of the Superior Courts requires "an affidavit which verifies the facts relied on". The affidavits should be confined to this purpose. It is not appropriate that submission, comment or argument be included in such affidavits. The affidavits must also comply with the requirements of O. 40 r. 4 of the Rules of the Superior Courts which provides:-

"Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, and shall state his means of knowledge thereof, except on interlocutory motions, on which...