P. D. v Minister for Justice and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 20 February 2015
• Neutral Citation: [2015] IEHC 111
• Court: High Court
• Date: 20 February 2015

[2015] IEHC 111

THE HIGH COURT

[No. 424 J.R./2010]

P. D. v Minister for Justice and Law Reform & Ors.

JUDICIAL REVIEW

No Redaction Needed

BETWEEN

P. D.

APPLICANT

AND

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

RESPONDENTS

Immigration and Asylum – Judicial Review – Refugee Applications Commissioner – Refugee Act 1996 – European Communities (Eligibility for Protection) Regulations 2006 – Council Directive 2004/83/EC – Error in Jurisdiction

Facts: The applicant sought a judicial review of the second named respondent”s decision prior to an appeal to the Refugee Appeals Tribunal. Judicial reviews of decisions taken by Refugee Applications Commissioners are rare and only occur when there has been an error as to jurisdiction. The court retains its discretion to refuse a judicial review even if there has been an error as to jurisdiction. The applicant sought asylum in Ireland and was interviewed by an immigration officer in accordance with s. 8 of the Refugee Act 1996 (as amended). The applicant subsequently completed a questionnaire that was addressed to the Commissioner. The asylum claim was investigated in accordance with s. 11 of the 1996 Act and a report was prepared pursuant to s. 13.

The applicant”s core claim was that he was a gay man who feared persecution in Zimbabwe and Malawi. It was submitted that the authorised officer failed to give adequate consideration to the applicant”s core claim. The authorised officer submitted that it was irrelevant whether or not the applicant was gay. The authorised officer refused the applicant asylum because there was an absence of a well-founded fear of persecution. The applicant asserted that the authorised officer had not analysed the treatment and persecution of homosexuals in Zimbabwe or Malawi. The applicant alleged there had been an error in law and fact, a breach of fair procedures and a failure consider the obligations under the European Communities (Eligibility for Protection) Regulations 2006 and/or Council Directive 2004/83/EC. The applicant stated in his questionnaire that he sought protection because criminal sanctions were applied to homosexuals in Malawi and Zimbabwe.

Held by Mac Eochaidh J: The court determined whether the applicant was entitled to a judicial review as opposed to an appeal to the RAT in relation to the ORAC”s negative decision. The court was satisfied that the applicant”s claim for refugee status was based upon a fear of the police putting him in jail for being gay. The deciding officer”s failure to acknowledge and investigate anti-gay laws in the country of origin in accordance with s. 11 of the 1996 Act, Articles 4 and 9 of the Directive and the Irish Regulations amounted to a significant error as to jurisdiction. The court held that the circumstances in this case were exceptional enough for the court to permit a judicial review of the first instance decision. The court made an order of certiorari.

1 JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 20th day of February, 2015

2 1. Should the applicant be permitted to seek judicial review of the decision of the second named respondent prior to an appeal to the Refugee Appeals Tribunal? The consistent jurisprudence of the Superior Courts is that intervention by way of judicial review in respect of decisions of the Refugee Applications Commissioner is rarely permitted and only in cases which at least involve errors as to jurisdiction but even then, the court retains discretion to refuse. I must therefore decide whether there are errors as to jurisdiction in the first instance decision and if so whether the applicant may seek judicial review as opposed to pursuing an appeal to the Refugee Appeals Tribunal.

Procedural Background:

3 2. The proceedings commenced by notice of motion of 11 ^th November, 2010. An intended statement of opposition, in respect of the telescoped hearing, was served on 19 ^th November, 2014; the applicants written submissions were filed on 25 ^th November 2014 and the case was listed for hearing on 28 ^th November, 2014. The applicant's written submissions (prepared by junior counsel only) had not alluded to the jurisprudence of the Superior Courts in relation to the limited circumstances in which judicial review of a decision of the Refugee Applications Commissioner may be permitted. The respondent's submissions raised a preliminary objection (as did its pleading) to the effect that this judicial review is premature. A substantive legal argument was sought to be made orally by junior counsel for the applicant to refute this point. The court directed that supplemental submissions be delivered and the case was adjourned. A wasted costs order was made in respect of the lost hearing date.

Factual Background:

4 3. In accordance with s.8 of the Refugee Act, 1996 (as amended) an immigration officer interviewed the applicant who sought asylum in the state on the 31 ^st August, 2010. An interview of an asylum seeker conducted in accordance with s.8 seeks to establish "the general grounds upon which the application is based" (see s.8(2)(a)), "the reason why the person came to the State" (see s.8(2)(e)) and the "legal basis for the entry into or presence in the State of the person" (see s.8(2)(f)).

5 4. The result of the s.8 interview was recorded in writing by the authorised officer and signed by the applicant. The applicant indicated that he was born in Malawi and that he had a passport from that country. He said that he had lived in Zimbabwe, that he was gay and that this was discovered by his family in 2009. He states that he was attacked by his relatives and suffered injury to his head requiring hospitalisation. He states that he left Zimbabwe in February 2010 and went to Malawi as his father was born there and he had relatives there. He says that circumstances were not good there either, that he returned to Zimbabwe but was in hiding as he feared for his safety. He states that he contacted an uncle living here who told him to come to Ireland for a visit. He came to Ireland on 22 ^nd August, 2010. The signed record of the interview acknowledges receipt by the applicant of a questionnaire which must be completed by a person applying for refugee status. This questionnaire is the prescribed form referred to in s.8(4) of the 1996 Act which provides "An application [for refugee status] shall be made in writing in the prescribed form or in a form to the like effect and shall be addressed to the Commissioner."

Questionnaire:

6 5. The questionnaire was given to the applicant and it was required to be returned by 9 ^th September, 2010. Guidelines for the completion of the questionnaire are provided to applicants for refugee status. Guideline 2 says "this Questionnaire seeks relevant information from you as an applicant for a declaration as a refugee in Ireland. This information will form the basis of the investigation at your interview." This questionnaire must be completed fully and returned within 10 working days. The guidelines also informed the applicant that:

"You should seriously consider obtaining the assistance of a professional legal advisor. You may contact a member of the staff of the Refugee Legal Services … or a solicitor in private practice…"

7 6. The applicant did not obtain legal advice prior to completing the questionnaire or at any stage during his dealings with the Refugee Applications Commissioner.

8 7. Part Three of the questionnaire is entitled 'Basis of Your Application for Refugee Status' and sets out the following recommendations:

9 · "When answering the questions below you should tell us everything about why you think you should be considered for refugee status.

10 · You should tell us if you think any of the events you referred to occurred because of your race, religion, nationality, membership of a particular social group, political opinion or any other reason,

11 · You should also tell us if you have ever been imprisoned, interrogated, tortured or mistreated in your country of origin and give full details."

12 8. Immediately following this text, question 21 on the questionnaire asks "Why did you leave your country of origin?" The applicant's (handwritten) answer was as follows:-

"I left my country of origin because of the profound fear of being tortured and mistreated because I am gay. I left at the time when my fellow activists were on a police [list?] in Blantyre and also a couple had been sentenced to 14 years in jail. I strongly feared to be arrested for homosexuality, thrown in jail and put in physical danger by angry mobs who always say we are guilty of gross indecency and unnatural act. Continued efforts to meet Mr. E.T [redacted] at the human rights group centre for protection had also proved fruitless and my life was hanging on a thread as each day passed and the net was closing in on us gay people."

13 In part response to question 29, similarly he states:

"I strongly fear I will be arrested for homosexuality and thrown into jail. I am in physical danger by angry mobs for my sex orientation; I will … a severe discrimination and interference. I will also attract … rude, insulting and downright threatening including verbal and physical aggression from the people of Malawi." The form also indicates that "after years of discrimination and interference in my sexual orientation I decided to leave Zimbabwe for Malawi".

14 9. At question 25a the applicant was asked whether he had reported his fears to the authorities and he replied: "I reported several incidences to the police during my stay in Zimbabwe and nothing was done since the President Mugabe is an outspoken critic of homosexuality as he openly described us." When asked what action was taken by the authorities he says: "No action was taken since the authorities (police) are loyal to President and...