A (R L) v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 30 April 2009
• Neutral Citation: [2009] IEHC 216
• Court: High Court
• Docket Number: [No. 1187 J.R./2006]
• Date: 30 April 2009

[2009] IEHC 216

THE HIGH COURT

[No. 1187 J.R./2006]

A (R L) v Min for Justice

BETWEEN/

R.L.A.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

RESPONDENT

A (TT) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP COOKE 29.4.2009 2009 IEHC 215

REFUGEE ACT 1996 S2

STEFAN v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY 2001 4 IR 203 2002 2 ILRM 134 2001/23/6290

D (A) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 27.1.2009 2009 IEHC 77

REFUGEE ACT 1996 S13(10)

IMMIGRATION ACT 2003 S7

REFUGEE ACT 1996 S11(6)

REFUGEE ACT 1996 S11B

REFUGEE ACT 1996 S11C

IMMIGRATION

Asylum

Judicial review - Credibility - Report of commissioner - Failure to establish well founded fear of persecution - Allegation that respondent failed to take relevant matters into account - Country of origin information relied upon not disclosed to applicant - No statutory obligation to notify applicant in advance of country of origin information used to verify credibility of applicant - Availability of alternative remedy by way of statutory appeal - Criteria applicable to exercise of discretion to grant leave - Whether non disclosure of country of origin information rendered statutory appeal inappropriate and inadequate - Whether case âÇÿexceptional' for purpose of exercise of discretion - Whether obligation on respondent to disclose country of origin information relied upon - A v Minister for Justice [2009] IEHC 215 (Unrep, Cooke J, 29/4/2009), D v Refugee Applications Commissioner [2009] IEHC 77 (Unrep, Cooke J, 27/1/2009), Stefan v Minister for Justice (Unrep, Supreme Court, 13/11/2001) considered; A v Refugee Applications Commissioner [2008] IEHC 26 (Unrep, Birmingham J, 02/07/2008) applied - Refugee Act 1996 (No 17), ss 2, 11, 13 - Immigration Act 2003 (No 26), s 10 - Application rejected (2006/1186JR - Cooke J - 20/4/2009) [2009] IEHC 216

A (RL) v Minister for Justice

Facts: The applicant sought an order of certiorari by way of judicial review quashing the report and recommendation of the Refugee Applications Commissioner (RAC). The applicant was granted leave to bring these proceedings notwithstanding the fact that the applicant had also commenced an appeal to the Refugee Appeals Tribunal (RAT). The applicant submitted that the RAC erred in law and in fact and in breach of Statute by failing to take into account the matters set out in s. 11B of the Refugee Act, 1996, as amended, where there was an obligation to do so. The applicant further submitted that a mere statement to the effect the report had regard to s. 11B was insufficient. The applicant also submitted that the RAC erred in law and in fact by reaching a conclusion that the applicant’s application should be refused based on country of origin information which was never put to or shown to the applicant. The report and recommendation of the RAC was based on negative findings regarding the applicant’s credibility. The court invited submissions on the issue as to whether, this case fell into the category of exceptional cases for the exercise of the court’s discretion to issue certiorari against a report of the RAC, rather than to require the applicant to pursue the statutory appeal.

Held by Cooke J. in refusing the application: That the issue for determination was whether the non disclosure of country of origin information to the applicant prior to the making of the report and recommendation by the RAC necessarily had a continuing adverse effect on the applicant such that she would be deprived of a true rehearing of her case on appeal. Furthermore, was there an issue that would only be heard and considered for the first time during an appeal. There was an inherent difference between the two stages of the asylum process before the RAC and the RAT, the former being investigative and unilateral, and the latter adversarial and adjudicatory. The appeal process was capable of remedying the alleged defect regarding non disclosure of country of origin information and was the more appropriate forum in which to do so. Similarly, the first ground of appeal regarding non compliance with s. 11B of the Act of 1996, if it had any substance, was appropriate to the forum of statutory appeal.

Reporter: L.O’S.

RESERVED JUDGMENT of

Mr. Justice Cooke

1 Following the judgment delivered yesterday in the case ofAkintunde v. The Minister for Justice, Equality and Law Reform and the Refugee Applications Commissioner, this is a further case in which leave has been granted to apply for an order of certiorari by way of judicial review to quash a report and recommendation of the Commissioner, notwithstanding the fact that the applicant has also commenced an appeal to the Refugee Appeals Tribunal which has been left in abeyance until the outcome of this application is known.

2 Leave was granted by Hanna J. on 30^th May, 2008 upon two grounds as follows:

2 "1. The Refugee Applications Commissioner erred in law and in fact and in breach of the Statute by failing to take into account the matters set out in section 11B of the Refugee Act1996, as amended, where there was an obligation to do so, and, in the circumstances, the decision is invalid. A mere statement that, 'This report has had regard to section 11B of the Refugee Act 1996, (as amended,)' is insufficient. The decision is invalid."

3 "2. The Refugee Applications Commissioner erred in fact and in law by reaching a conclusion that the applicant's application should be refused based on country of origin information which was never put to or shown to the applicant. It appears that this country of origin information was referred to in the decision and only consulted by the Commissioner and relied upon after the interview concluded, thus breaching the principle ofaudi alteram partem and breaching natural and constitutional justice. The failure to give the applicant an opportunity to deal with the matters which would appear to have been crucial to the determination made in the case renders the decision invalid."

3 The decision which is sought to be quashed is that contained in the Report and Recommendation of the Commissioner dated the 15^th December, 2006, in which it was concluded that the applicant had failed to establish a well-founded fear of persecution for the purposes of s. 2 of the 1996 Act. In effect, the Commissioner did not believe the personal history recounted by the applicant, which she, (the Commissioner's officer,) recites in s. 5 of the report and which is based on a lengthy interview of the applicant. In that recital the officer interjects a series of observations or queries which reflect the basis of her doubts as to credibility.

4 Very briefly, the applicant said she met and married her husband and had her first child with him in 1997; and that her problems started seven years later in 2004, when she discovered that he was already married and when his children from the prior marriage began to call on and to threaten her because their...