S (G) (minor) v Refugee Applications Commissioner

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 21 November 2008
• Neutral Citation: [2008] IEHC 365
• Docket Number: [No. 1076 J.R./2006]
• Court: High Court
• Date: 21 November 2008

[2008] IEHC 365

THE HIGH COURT

[No. 1076 J.R./2006]

S (G) (A Minor) v Refugee Applications Commissioner & Ors

JUDICIAL REVIEW

BETWEEN

G.S. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND Y.S.)

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S12(4)(a)

REFUGEE ACT 1996 S13(5)

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S13(6)

REFUGEE ACT 1996 S12(4)

REFUGEE ACT 1996 S12(4)(c)

LAURENTIU v MIN FOR JUSTICE 1994 4 IR 26

CONSTITUTION ART 15

O'KEEFE v BORD PLEANÁLA 1993 1 IR 39

Z (V) v MIN JUSTICE 2002 2 IR 135

G (T) v REFUGEE APPEALS TRIBUNAL (MCHUGH) UNREP HIGH CHARLETON 18.4.2007 2007/25/5199

NIGY NGANZUNUJ v MIN FOR JUSTICE & REFUGEE APPLICATIONS COMMISSIONER UNREP HIGH HEDIGAN 9.10.2008 2008 IEHC 308

REFUGEE ACT 1996 S13(5)(a)

A (FA) v MIN FOR JUSTICE & DES ZIDIAN (SITTING AS THE REFUGEE APPEALS TRIBUNAL) UNREP HIGH BIRMINGHAM 24.6.2008 2008 IEHC 220

S (DVT) v MIN FOR JUSTICE & ANOR UNREP HIGH EDWARDS 4.7.2007 2007/54/11621

IMMIGRATION

Asylum

Safe country of origin - Minor - Persecution - No right to oral appeal hearing before Refugee Applications Commissioner - Whether any breach of natural justice and fair procedures - Continuing designation of Croatia as safe country - Prohibition on applicant having oral appeal hearing by reason of fact that Croatia had been designated safe country of origin - Whether statutory procedure available for correction of error made by primary decision maker adequate to meet justice of the case - Availability of statutory appeal - Authoritative and up to date country of origin documentation submitted - Conflicting country of origin documentation - FAA v Minister for Justice [2008] IEHC 220 (Unrep, Birmingham J, 24/6/2008), DVTS v Minister for Justice [2007] IEHC 238 (Unrep, Edwards J, 11/7/2007), Laurentiu v Minister for Justice [1994] 4 IR 26, O'Keeffe v Bord Pleanála [1993] 1 IR 39, VZ v Minister for Justice [2002] IR 158, TG v Refugee Appeals Tribunal [2007] IEHC 174, (Unrep, Charleton J, 18/4/2007) and N v Refugee Applications Commissioner [2008] IEHC 308, (Unrep, Hedigan J, 9/10/2008) considered - Refugee Act 1996 (No 45), ss 12(4)(a), 13(5) - Refugee Act 1996 (Safe Countries of Origin) Order 2004 (SI 714/2004) - Relief granted (2006/1076 JR - Irvine J - 21/11/2008) [2008] IEHC 365

S(G) v Refugee Applications Commissioner

Facts: the applicant was refused asylum by the respondent. The applicant was entitled to appeal that refusal to the Refugee Appeals Tribunal but was not entitled to an oral hearing in relation thereto. The applicant applied for leave to seek judicial review of that decision on the grounds, inter alia, that the decision was perverse in the face of all the evidence and that the respondent had failed to fully consider all of the country of origin documentation before her.

Held by Ms Justice Irvine in granting leave to seek judicial review that the fact that an applicant did not have a right to an oral hearing on appeal from a decision of the Refugee Applications Commissioner was one of the exceptions to the general principle that the availability of an appeal to the Refugee Appeals Tribunal would normally justify the court declining to grant leave to challenge a decision of the Refugee Applications Commissioner.

That the applicant had substantial grounds to be concerned as to whether or not the respondent had fully considered all of the up to date country of origin documentation before her and that the decision was perverse in the face of the evidence before her.

Reporter: P.C.

Judgment of

Ms. Justice Irvine

1 delivered on the 21st day of November. 2008.

2 G.S., the applicant in this case, was born in the Rotunda Hospital on the 2^ndJanuary, 2006. He is a citizen of Croatia although he has never resided there. His mother and father are both ethnic Serbs and citizens of Croatia.

3 On the 4^th September, 2006, the applicant's mother, Y.S., instituted the within proceedings on the applicant's behalf. The present application for leave to apply for judicial review is grounded upon her affidavit which was sworn on the 4^th September, 2006. In that affidavit the applicant's mother asserts, on his behalf, that he will be persecuted and severely discriminated against should he be required to live in Croatia by reason of his ethnicity. Y.S and the applicant's father are awaiting a determination of their applications for refugee status. They have appeals pending before the Refugee Appeals Tribunal. Y.S states in her affidavit that both she and the applicant's father were forced to flee to Ireland from Croatia in June 2005 in the face of persecution based on their ethnicity and in respect of which persecution neither she nor her family received adequate police protection.

4 Arising from her own experience as a member of an minority ethnic community and also upon the experience of her husband and other family members of similar ethnic origin, Y.S has contended on the applicant's behalf that he has a well founded fear of being persecuted by reason of his race and religion should he be forced to live in Croatia.

5 Croatia had been designated as a safe country of origin pursuant to s. 12(4)(a) of the Refugee Act1996 ("the Act"). Accordingly, the applicant does not enjoy, by reason of the provisions of s. 13(5) thereof the right to an oral hearing in the event of the first named respondent concluding that he should not be declared to be a refugee.

6 An application for refugee status was made on the applicant's behalf to the office of the first named respondent in June, 2006. Following the normal procedure, which includes the completion of an application form, an initial interview, the receipt by the applicant of informative documentation regarding the procedure, the receipt of advice as to the availability of legal assistance from the Refugee Legal Service and a right to consult with the United Nations High Commissioner for Refugees, Y.S. attended for interview on the applicant's behalf at the office of the Refugee Applications Commissioner on the 1^st August, 2006.

7 The interview was conducted by Ms. Catriona Kirwan on behalf of the first named respondent. The notes referable to that interview are exhibited in the grounding affidavit. These demonstrate that Y. S. described two major concerns in the course of the interview. Firstly, she complained of potential discrimination within the education system for Serbian children. She felt the applicant would not be able to learn his own Serbian language and that if he did that he would be persecuted and isolated by other children. Secondly, she referred to her belief that Croatian nationalists would verbally and physically abuse the applicant if he lived in Croatia and that he would not enjoy equal rights to other children. When asked about the possibility of the State protecting her son from persecution she advised Ms. Kirwan that neither she nor her family had received adequate protection from persecution. When they complained about persecution to the police their complaints were not investigated. She advised her interviewer that people were afraid to report persecution and that the applicant was likely to be subjected to the same verbal and physical abuse that she and her family had received if he was obliged to reside in Croatia.

8 The interview notes confirm that in the course of the interview several country of origin documents were furnished to the investigating officer by Y.S's solicitor. It is common case that selected extracts from these documents were underlined presumably for the purpose of drawing the attention of the investigating officer to the relevant entries which advised (inter alia) that there had been a serious deterioration in the course of 2005 in areas pertaining to human rights in Croatia.

9 Prior to the preparation of the report pursuant to s. 13(1) of the Act, the applicant's solicitor wrote to the office of the first named respondent complaining that Y.S. had not been permitted, in the course of her interview, to describe how she and her family had been persecuted by reason of their ethnicity whilst residing in Croatia. She complained that she had been told to confine her answers to her son's circumstances. The applicant's solicitor took exception to the interview being confined in this manner given that the persecution of Y.S. and her family and the unwillingness or inability of the police to protect them from persecution whilst living in Croatia was directly relevant to the assessment to be made by the first named respondent as to whether the applicant could be protected from persecution as a member of the Serb minority community if he was obliged to live in Croatia.

10 By letter dated the 11^th August, 2006, the applicant's solicitor was advised that the first named respondent was privy to the applicant's parents' application for refugee status and that their experiences, as recounted in the course of those applications, would be taken into account.

11 The s. 13 Report is dated the 15^th August, 2006 and it was received by the applicant on the 18^th August, 2006. In that report the findings made by the authorised officer of the first named respondent pursuant to s. 13(6) were as follows:-

"As the applicant is a national of or has the right of residence in Croatia, which was designated a safe country in accordance with s. 12(4) of the Refugee Act1996 (as amended), it is deemed that s. 13(6)(3) applies in this case".

"I have considered the information in relation to this application. I am satisfied that the applicant has failed to establish a well founded fear of persecution in the course of s. 2 of the Refugee Act1996 (as amended), and I recommend that the applicant should not be declared a refugee. I recommend that s....