S.H.I. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 29 April 2016
• Neutral Citation: [2016] IEHC 218
• Docket Number: [2015] No. 596 J.R.
• Court: High Court
• Date: 29 April 2016

[2016] IEHC 218

THE HIGH COURT

JUDICIAL REVIEW

Mac Eochaidh J.

[2015] No. 596 J.R.

BETWEEN

S. H. I.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

Asylum, Immigration & Nationality – S. 13 (6) (e) of the Refugee Act, 1996 – Papers only appeal – Leave to seek judicial review – Racial abuse – Refusal of asylum – Audi alteram partem – Forward looking test – Fair procedures

Facts: The applicant, by way of an ex-parte application, sought leave to seek judicial review of the decision of the first named respondent affirming the recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicant not to be declared a refugee. The applicant contended that the first named respondent breached the principles of audi alteram partem as it did not put the applicant on notice in relation to the adverse credibility findings made against him in a papers only appeal contrary to the fact that issues of credibility were resolved in his favour by ORAC. The applicant being a South African citizen alleged that the first named respondent failed to apply forward looking test to determine whether the applicant would be subjected to further racial abuse in that country due to his Indian ethnicity.

Mr. Justice Mac Eochaidh granted leave to seek judicial review of the decision of the first named respondent. The Court held that the first named respondent erred in law by not giving an opportunity to the applicant to deal with the issue of credibility raised for the first time on papers only appeal in lieu of the fact that the applicant was found to be credible by ORAC. The Court observed that it would be breach of fair procedures by putting reliance on the materials unknown to the applicant in order to defeat the claim for asylum. The Court however, held that once adverse credibility findings were made against the applicant, the decision-maker was not required to make any other inquires such as internal relocation and state protection.

JUDGMENT of Mr. Justice Mac Eochaidh delivered on the day of

Introduction:

1 This is an ex parte application for leave to seek judicial review of the decision of the Refugee Appeals Tribunal of the 5th October, 2015, which affirms the recommendation of the Refugee Applications Commissioner that the applicant not be declared a refugee. The question for the court to consider is whether the applicant should have been afforded an opportunity to address a negative credibility finding where it arose for the first time on appeal to the R.A.T..

Background:

2 The facts of the applicant's case are set out in his affidavit sworn on the 28th October, 2015, in which he avers that he is a South African citizen of Indian ethnicity. From May to December 2013, the applicant worked as a truck driver in South Africa. He received regular racial abuse from his work colleagues throughout this period because of his Indian appearance. He avers that racial abuse was a daily occurrence for him while he lived in South Africa and that the situation for ethnic minorities deteriorated following the death of Nelson Mandela.

3 The applicant arrived in the State on the 16th January, 2014, and applied for asylum on the same day. By decision dated the 31st January, 2014, the O.R.A.C. recommended that the applicant not be declared a refugee. The Commissioner made two findings which are relevant to this application for leave to seek judicial review. First, she found that ‘no credibility issues arose during the assessment of the applicant's claim.’ Therefore, the applicant went to the R.A.T. with the view that the issue of credibility had been resolved in his favour. Second, the Commissioner determined that as the applicant is a national of a ‘safe country’ pursuant to s. 13(6)(e) of the Refugee Act, 1996 (as amended), he would have no right to an oral hearing on appeal.

4 At the R.A.T., the applicant was disbelieved as to a core aspect of his claim for asylum - that he was subjected to xenophobic racially motivated abuse at his work place - because he had not raised the point prior to his appeal. The decision maker found as follows:-

‘…I do not find it plausible that this occurred and that the appellant would not report it to the police or bring it to the attention of his employer.’

Submissions:

5 Counsel on behalf of the applicant Mr. Colm O'Dwyer (S.C.) submits two broad grounds of challenge in respect of the R.A.T.'s decision. One that the decision maker failed to put the applicant on notice that he disbelieved a core aspect of his story relating to the alleged racial abuse suffered by the applicant at his place of work. Supplemental written submissions were received on this point, dealing with relevant case law referred to counsel by the court. The second ground of challenge relates to the alleged failure of the decision maker to assess the future risk of the applicant suffering harm if returned to South Africa.

6 The grounds upon which relief is sought are set out as follows:-

‘A. The Tribunal Member (hereafter “the first Respondent”) acted in breach of fair procedures and natural and constitutional justice, and in particular the...