S (F K) v Refugee Appeals Tribunal & Min for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 30 October 2009
• Neutral Citation: [2009] IEHC 474
• Court: High Court
• Docket Number: [No. 1373 J.R./2008]
• Date: 30 October 2009

[2009] IEHC 474

THE HIGH COURT

[No. 1373 J.R./2008]

S (F K) v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

BETWEEN

F.K.S.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

IMMIGRATION

Asylum

Leave to apply for judicial review - Jurisdiction - Ultra vires - No appearance by presenting officer at appeal -Whether tribunal had jurisdiction to proceed with hearing - Interpretation of statutory provision - Meaning of words âÇÿif present' - Duties on tribunal - Whether hearing could only take place if appearance by representative of Refugee Applications Commissioner - Whether presence of presenting officer mandatory - Technical non-compliance - Whether any prejudice to applicant by absence of presenting officer - FAA v Minister for Justice [2008] IEHC 220, (Unrep, Birmingham J, 24/6/2008), MN v Refugee Appeals Tribunal [2009] IEHC 301 , (Unrep, Cooke J, 1/7/2009) and Emanuel v Refugee Appeals Tribunal (ex temp, Clark J, 7/7/2009) considered; MDA v Minister for Justice [2009] IEHC 328, (Unrep, Irvine J, 20/7/2009) applied - Refugee Act 1996 (No 17), s 16(11)(c) - Immigration Act 1999 (No 22), s 11 - Refugee Act 1996 (Appeals) Regulations 2003 (SI 424/2003), reg 9 - Delay - Failure to determine appeal within a reasonable time - Eight months to give decision - Prejudice - Whether decision safe - Consequence of delay - Change in circumstances - Biti v Refugee Appeals Tribunal [2005] IEHC 13,(Unrep, Geoghegan J, 24/1/2005), Messaoudi v Refugee Appeals Tribunal (Unrep, Finlay Geoghegan J, 29/7/2004), GE v Refugee Appeals Tribunal [2005] IESC 15, [2006] 2 IR 11, Balogun v Refugee Appeals Tribunal,(ex temp, Charleton J, 29/1/2009), Krameranko v Refugee Appeals Tribunal (Unrep, McCarthy J, 14/7/2009), Cobham v Frett [2001] 1 WLR 1775, Irish Times Newspapers Ltd v Singh (Unrep, CA, 17/12/1999) and Kwamin v Abbey National Plc [2004] ICR 841 considered - Leave to apply by way of judicial review granted in respect of jurisdiction issue (2008/1373JR - Dunne J - 30/10/2009) [2009] IEHC 474

S (F K) v Refugee Appeals Tribunal

Facts: The applicant alleged that the first respondent acted ultra vires the Refugee Act 1996 as amended and/ or Refugee Act (Appeals) Regulations, 2003 in proceeding with the appeal despite there being no appearance by the Refugee Applications Commissioner or a member of staff authorities to attend. The core complaint made by the applicant was that in the absence of the presenting officer, the Tribunal had no jurisdiction to proceed with a hearing. Objection had been taken at the outset but the Tribunal Member had decided to proceed with the hearing. The applicant also alleged that the respondent had failed to determine the appeal of the applicant within a reasonable time and had acted ultra vires and/ or in breach of natural and constitutional justice.

Held by Dunne J. that there was a serious issue raised as to the interpretation of the statutory provisions and the regulations made there under as to whether or not it was appropriate to proceed. The applicant was entitled to leave to apply for judicial review on the first ground. Eight months elapsed between the hearing of the appeal before the RAT and the delivery of the decision. The delay here was less than satisfactory but no prejudice was suffered and the applicant was not entitled to leave on this ground.

Reporter: E.F.

Ms. Justice Dunne

1 The applicant herein seeks leave to apply for judicial review by way of an order ofcertiorari quashing the decision of the first named respondent as notified by fax of the 12^th November, 2008, affirming the recommendation of the Refugee Applications Commissioner that the applicant should not be declared to be a refugee and the decision of the Member of the first named respondent of the 12^th November, 2008. Although a number of other grounds were set out in the statement required to ground the application for judicial review herein, the hearing before me was confined to two grounds. They are as follows:-

2 2 "1. The first named respondent actedultra vires the Refugee Act 1996 (As Amended) and/or the Refugee Act (Appeals) Regulations 2003 ( S.I. No. 424/2004) in proceeding with the appeal hearing despite there being no appearance by the Refugee Applications Commissioner or a member of the staff of the Commissioner authorised by him or her to attend the oral hearing.

3 2. The first named respondent failed to determine the applicant's appeal within a reasonable time and in this regard actedultra vires the Refugee Act 1996 (As Amended) and/or acted in breach of natural and constitutional justice."

4 It will be seen that the grounds set out above do not seek to challenge any of the findings of the first named respondent (hereinafter referred to as the Tribunal) on grounds relating to the credibility of the applicant.

Background

5 The applicant claims to be a native of Cameroon. She apparently left that country on the 18^th February, 2004, accompanied by the brother of a friend and she arrived in the State on the 23^rd February, 2004. She applied for asylum and subsequently this was deemed to be withdrawn. She was then granted permission to re-enter the asylum system and this application for asylum was made in September 2006. The basis of her claim for asylum is the fear of persecution for reason of membership of a particular social group comprising women and/or mothers from Cameroon and/or women who are HIV positive in Cameroon. Persons who are HIV positive in Cameroon are subject to stigma, discrimination and harassment within society amounting to persecution, including discrimination in relation to employment. She also feared domestic violence from her partner, with whom she had three children. She claimed that her partner announced that he wanted her daughter to be circumcised. She was not agreeable to this and he became abusive towards her. She brought her children away to a friend in Eloquito, a place as distant from the village she resided in as Cork is from Dublin. She described being beaten by her boyfriend after this because she took the children away. She then went to Eloquito. Shortly after she arrived there she said that her friend's brother made arrangements for her to leave the country. He travelled to Ireland with her and abandoned her in Inchicore.

The First Ground

6 In the course of the applicant's verifying affidavit sworn herein on the 3^rd December, 2008, she stated as follows:-

"My appeal hearing proceeded on 25^th February, 2008. There was no appearance by or on behalf of the Refugee Applications Commissioner. Counsel on my behalf drew the attention of the member of the first named respondent to the appropriate legislation and in particular the Refugee Act 1996 (Appeals Regulations 2003 S.I. No. 424/2003) and Regulation 9(1) thereof. Counsel stated that as a matter of law the hearing could not proceed without a Presenting Officer appearing on behalf of the Refugee Applications Commissioner. The member of the first named respondent drew counsel's attention to the words 'if present' in Regulation 9(1)(a) and counsel submitted that those words referred only to the High Commissioner and not to the Refugee Applications Commissioner. The member of the first named respondent opened s. 16(11)(c) of the Refugee Act, 1996 (As Amended) and stated she was of the view that once the Presenting Officer was enabled, and she stated that 'enabled' meant notified of the hearing, that that requirement was satisfied with regard to the Presenting Officer and if they were unable to attend for whatever reason the first named respondent could proceed in their absence. The hearing then proceeded."

7 Section 16(11)(c) of the Refugee Act1996 (As Amended) provides as follows:-

"The Tribunal shall enable the applicant and the Commissioner or an authorised officer to be present at the hearing and present their case to the Tribunal in person or through a legal representative or other person."

8 Regulation 9 of the Refugee Act1996 (Appeals) Regulations 2003 provides as follows:-

9 2 "1. In conducting an oral hearing the Tribunal shall -

10 (a) ensure that the applicant, his or hear legal representative, if any, the Commissioner and the High Commissioner, if present, are informed of the order of proceedings which the Tribunal proposes to adopt;

11 (b) conduct the oral hearing as informally as is practicable, and consistent with fairness and transparency;

12 (c) decide the order of appearance of the applicant and the Commissioner and any witness;

(d) ensure that the oral hearing proceeds with due expedition;

13 (e) allow for the examination and cross examination of the applicant, any witnesses and the Commissioner, and

14 (f) ensure that a witness shall be present at the oral hearing only for the duration of his or her evidence.

15 2. References to the Commissioner in para. 1 includes references to a member of the staff of the Commissioner who is authorised by him or her to attend the oral hearing."

16 It was submitted on behalf of the applicant that Regulation 9(1) imposed three duties on the Tribunal:

17 (1) To ensure that the commissioner or authorised representative informed of the order of proceedings which the Tribunal proposes to adopt;

18 (2) Decide the order of appearance of the applicant and the Commissioner or their authorised attendee;

19 (3) Allow for cross examination of the Commissioner (and or their authorised attendee).

20 On that basis it was contended on behalf of the applicant that it was clear from the intent of the regulation that the hearing before the Tribunal could only take place if there was a representative of the Commissioner present. Counsel referred to a passage from a judgment of the High Court in the case ofF.A.A. v. Minister for Justice, Equality and Law...