Rostas v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 31 July 2003
• Neutral Citation: 2003 WJSC-HC 11163
• Court: High Court
• Date: 31 July 2003

2003 WJSC-HC 11163

THE HIGH COURT

NO. 841 JR/2002

ROSTAS v. REFUGEE APPEALS TRIBUNAL (HAYES) & MIN FOR JUSTICE

JUDICIAL REVIEW

BETWEEN

OCTAVIAN LAURENTIU ROSTAS

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL (JOHN HAYES MEMBER)

AND

THE MINISTER FOR JUSTICE EQUALITY & LAW REFORM

RESPONDENTS

Citations:

REFUGEE ACT 1996 S11(2)

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S17(1)(B)

REFUGEE ACT 1996 S2

UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951 ART 1(A)(2)

REFUGEE ACT 1996 S16

REFUGEE ACT 1996 S5

UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951 ART 33

HATHAWAY THE LAW OF REFUGEE STATUS 1998 111

REFUGEE ACT 1996 S16(2)(A)

PROTOCOL ON THE STATUS OF REFUGEES 1967

IMMIGRATION ACT 1999

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

A (F) V MIN JUSTICE & ORS UNREP O CAOIMH 21.12.2001 2001/15/4133

ZGNATEV V MIN FOR JUSTICE UNREP FINNEGAN 29.3.2001 2002/29/7601

Z V MIN JUSTICE & ORS 2002 2 IR 135 2002 2 ILRM 215

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992

CHANCHAVAC V INS 207 F 3D 584

VALLECILLO-CASTILLO V INS 121 F 3D 1237

MCNAMARA V BORD PLEANALA (NO 1) 1995 2 ILRM 125

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 3ED 1998 412

RADIO LIMERICK ONE LTD V INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) 1997 2 ILRM 1 1997 2 IR 291

ASSOCIATED PROVINCIAL PICTUREHOUSES LTD V WEDNESBURY CORP 1948 1 KB 223

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

SHANNON REGIONAL FISHERIES BOARD V BORD PLEANALA 1994 3 IR 449

TENNYSON V DUN LAOGHAIRE CORPORATION 1991 2 IR 527

O'CONNOR V DUBLIN CORPORATION (NO 2) UNREP O'NEILL 3.10.2000 2000/14/5399

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

WICKLOW HERITAGE TRUST LTD V WICKLOW CO COUNCIL UNREP MCGUINNESS 5.2.1998 2000/17/6683

GREGORY V DUN LAOGHAIRE/RATHDOWN CO COUNCIL UNREP GEOGHEGAN 16.7.1996 1998/20/7705

GREGORY V DUN LAOGHAIRE/RATHDOWN CO COUNCIL UNREP SUPREME 28.7.1997 1998/20/7685

GRENNAN V KIRBY 1994 2 ILRM 199

KILLEEN V DPP 1997 3 IR 218

HOLLAND, STATE V KENNEDY 1977 IR 193

ANISMINIC LTD V FOREIGN COMPENSATION COMMISSION 1969 2 AC 147

R V HULL UNIVERSITY VISITOR 1993 AC 682

LAMBERT V AN TARD CHLARAITHEOIR 1995 IR 372

T V T 1983 IR 29

B - M(A) v MIN JUSTICE EQUALITY & LAW REFORM & THE INTERIM REFUGEE APPEALS AUTHORITY & AG UNREP O'DONOVAN 23.7.2001 2001/1/267

CIE V BORD PLEANALA UNREP CARROLL 22.2.1984 1984/4/1059

ALI V MIN JUSTICE UNREP SMYTH 2.10.2002 2002/1/139

CAMARA V MIN JUSTICE UNREP KELLY 26.7.2000 2000/4/1247

HENRY DENNY & SONS (IRL) LTD V MIN FOR SOCIAL WELFARE 1998 1 IR 34

DEELY V INFORMATION CMSR 2001 3 IR 439

R V IMMIGRATION APPEAL TRIBUNAL EX PARTE DEMISA UNREP QBD 17.7.1996

ISLAM V SECRETARY OF STATE FOR THE HOME DEPARTMENT 1999 IMM AR 283

R V IMMIGRATION APPEALS TRIBUNAL & ANOR EX-PARTE SHAH 1999 2 AC 629

DEMIRKAYA V SECRETARY OF STATE FOR HOME DEPT 1999 IMM AR 498

KAGEMA V SECRETARY OF STATE FOR HOME DEPT 1997 IMM AR 137

SALIBIAN V MIN OF EMPLOYMENT & IMMIGRATION & AG OF CANADA 1993 FC 250 22 ACWS 3D 837

Synopsis:

IMMIGRATION

Asylum

Judicial review - Application for leave to seek judicial review - Whether tribunal misdirected itself as to what constitutes well founded fear of persecution - Whether error of law going to jurisdiction of tribunal - Evidence - Inferences drawn from documentary evidence - Application of independent country of origin information to objective assessment of whether well founded fear of persecution exists - Test to be adopted when considering conflicting reports - Whether leave should be granted - UNHCR Handbook, paragraph 45 - Illegal Immigrants (Trafficking) Act, 2000 section 5 (2002/841JR - Gilligan J - 31/7/2003)

Rostas v Refugee Appeals Tribunal

the applicant, who was a Roma, appealed the decision of the Refugee Applications Commissioner refusing his claim for asylum and which appeal was rejected by the first respondent. In its decision, the first respondent referred to two conflicting reports on conditions pertaining to Roma in Romania and, preferring one over the other, concluded that conditions did not warrant the recognition of claims such as the applicants on a prima facie basis. The applicant then sought leave to quash that decision on the grounds, inter alia, that the first respondent’s reliance on and application of country of origin information was unreasonable and irrational, that he applied an incorrect burden of proof and that he failed to apply the correct test as to what constituted a well founded fear of persecution.

Held by Gilligan J in granting leave to apply for judicial review of the impugned decision of the first respondent that an objective fear of persecution required an analysis of the general human rights record of the country of origin and conditions therein and regard may be had to what had happened to the applicant’s friends or relatives or other members of the same racial or social group which may show his fear to be well founded. An applicant who demonstrates that he suffered past persecution was entitled to a legal presumption of a well founded fear of future persecution. That presumption may be rebutted by showing that the conditions in the country of origin have changed. However, that burden will not be satisfied by introducing information about general changes in the country in question, rather an individualised analysis of how changed conditions will affect the applicant’s situation should be undertaken. The issue of whether there was an objective basis to an applicant’s fear of persecution had to be analysed from the applicant’s account of the events which occurred to him, and to members of his community generally, and with reference to relevant and current country of origin information. Where an adjudicator is presented with conflicting reports on prevailing conditions in the state of origin of a claimant for asylum, he should not choose between them but accept that there was an arguable case of fear of persecution. As a court could reverse inferences drawn from facts if they were based on an incorrect interpretation of documents, there was a reasonable and weighty question to be tried as to whether the first respondent confused the objective and subjective aspects of the test of well founded fear of persecution and misapplied that test in having regard only to the applicant’s own personal experiences with respect to the objective aspect of the test.

1 JUDGMENT of Mr. Justice Gilligan delivered on the 31st day of July 2003.

2 The applicant in these proceedings is a Romanian national born on the 12 ^th September, 1970. He is married with one daughter and his occupation is described as a heavy machinery mechanic. He arrived in the State on the 26 ^th February, 2002 and made an application for a declaration of refugee status on the 27 ^th February, 2002. He completed an application for refugee status questionnaire on the 4 ^th March, 2002 and attended for interview by the office of the Refugee Applications Commissioner on the 18 ^th July, 2002. He received notification by way of a letter of the 28 ^thAugust, 2002 from the office of the Refugee Application Commissioner to the effect that his application for a declaration of refugee status had been refused. Enclosed with the letter of refusal was a copy of the report and the results of the investigation pursuant to s. 11 (2) and s. 13 (1) of the Refugee Act, 1996as dated the 6 ^th, 7 ^th and 8 ^th August, 2002. Attached to the report under s. 13(1) of the Refugee Act, 1996was an extract from a U.K. Home Office country assessment report of 2001 and this is referred to as the report in tab A.

3 The applicant appealed the decision of the office of the Refugee Applications Commissioner and a full oral hearing took place on the 24 ^th October, 2002 before a Tribunal member.

4 By letter dated the 13 ^th November, 2002 from the first named respondent the applicant was advised of the decision refusing his appeal against the decision of the office of the Refugee Applications Commissioner and enclosed with that letter was a copy of the recommendation of the Tribunal member.

5 This application is for leave to apply for judicial review in respect of

6 (1) A declaration that the decision of the first named respondent of the 30 ^th November, 2002 and the recommendation of the Tribunal member of the 22 ^nd November, 2002 denying the applicant refugee status are ultra vires and without efficacy.

7 (2) An order of certiorari quashing the decision of the first named respondent of the 30 ^th November, 2002 and the recommendation of the Tribunal member of the 22 ^nd November, 2002 refusing the applicant refugee status and denying his appeal.

8 (3) An order of mandamus directing that the applicants appeal against the decision denying him refugee status be remitted for hearing by the Refugee Appeals Tribunal as directed by this Court.

9 (4) An injunction restraining the second named respondent from taking any steps pursuant to s. 17 (1) (b) of the Refugee Act, 1996to affirm the decision to deny the applicant refugee status and/or from proposing to deport and/or deporting the applicant.

10 The grounds upon which the reliefs sought are as follows:

11 a (A) The recommendation of the Tribunal member to refuse the applicant's appeal is unreasonable, irrational and flies in the face of common sense and the weight and preponderance of the evidence and material before him including reputable country of origin information and his own findings regarding the applicant's credibility and subjective fear of persecution and acts of past persecution against him.

12 b (B) The Tribunal member has erred in law and acted ultra vires s. 2 of the Refugee Act, 1996and Article 1(A)(2) of the 1951 Convention. The applicant should benefit from a presumption in his favour that he was a well-founded fear of persecution and against refoulement having regard to the finding of the Tribunal...