S. K. T. [DRC] v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 27 November 2014
• Neutral Citation: [2014] IEHC 572
• Court: High Court
• Date: 27 November 2014

[2014] IEHC 572

THE HIGH COURT

[No. 419 J.R./2011]

T (SK) [DRC] v Refugee Appeals Tribunal & Ors

No Redaction Needed

JUDICIAL REVIEW

BETWEEN

S. K. T. [DRC]

APPLICANT

AND

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

RESPONDENTS

EEC DIR 85/2005 CHAP v ART 39

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S16(6)

ILLEGAL IMMIGRANTS (TRAFFICKING ACT) 2000 S5(2)

EEC DIR 85/2005 CHAP II ART 10

EEC DIR 85/2005 RECITAL 11

EEC DIR 85/2005 CHAP II ART 10(D)

EEC DIR 85/2005 CHAP II ART 2(E)

REFUGEE ACT 1996 S17(1)

EEC DIR 85/2005 CHAP III ART 23(2)

EUROPEAN COMMUNITIES (ASYLUM PROCEDURES) REGS 2011 SI 51/2011

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 41

M (M) v MIN FOR JUSTICE & ORS 2013 1 WLR 1259 2012 AER (D) 284 (NOV) (CASE C-277/11)

BAUSTAHLGEWEBE GMBH v CMSN OF THE EUROPEAN COMMUNITIES 1998 ECR I-8417 1999 4 CMLR 1203 1999 18 TR LR 87 (CASE C-185/95P)

REFUGEE ACT 1996 S15(3)

S (FK) v REFUGEE APPEALS TRIBUNAL UNREP DUNNE 30.10.2009 2009/51/12917 2009 IEHC 474

C (QF) & ORS v REFUGEE APPEALS TRIBUNAL & ORS UNREP COOKE 12.1.2012 2012/5/1336 2012 IEHC 4

A (R) [NIGERIA] v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (LEVEY) UNREP CLARK 12.11.2013 2013/1/239 2013 IEHC 504

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

MEMISHI v REFUGEE APPEALS TRIBUNAL & ORS UNREP PEART 25.6.2003 2003/35/8424 2003 IEHC 65

O (R) (AN INFANT) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (LEVEY) UNREP MAC EOCHAIDH 20.12.2012 2012 IEHC 573

K (AM) (A MINOR) [AFGHANISTAN] v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP O'KEEFFE 20.11.20122012 IEHC 479

T (F) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP 18.4.2013 2013/49/13971 2013 IEHC 167

R (R) v REFUGEE APPEALS TRIBUNAL (MCCABE) & ORS (NO 2) UNREP MAC EOCHAIDH 24.10.2013 2013/44/12661 2013 IEHC 468

REFUGEE ACT 1996 S11(B)(B)

IMOH & OKORO v REFUGEE APPEALS TRIBUNAL (BRENNAN) & MIN FOR JUSTICE UNREP CLARKE 24.6.2005 2005/31/6393 2005 IEHC 220

A (MAM) v REFUGEE APPEALS TRIBUNAL & ORS 2011 2 IR 729 2011/1/160 2011 IEHC 147

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 9

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 10(2)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 10(1)(E)

Judicial Review – Order of Certiorari – Refugee Status – Procedural Delays - Illegal Immigrants (Trafficking) Act 2000 – Practice and Procedures - Refugee Act 1996 - Credibility

Facts: This case concerned a judicial review application seeking, inter alia, an order of certiorari quashing the decision of the Refugee Appeals Tribunal ('the RAT') dated 3rd March, 2011, affirming the recommendation of the Office of the Refugee Applications Commissioner ('ORAC') that the applicant not be declared a refugee. The applicant also sought a declaration that she was deprived of an effective remedy before a court or tribunal against the first instance determination of her application for refugee status, in compliance with the requirements of Council Directive 2005/85/EC ('the Procedures Directive'). The applicant, a national of the Democratic Republic of Congo ('the DRC') claimed that she had been arrested, tortured and raped on account of her political beliefs. She claimed that a client and her husband helped her escape. They arranged her travel from the DRC. She claimed to have fled on 6th November, 2006, and stated that she travelled through Addis Adaba and Dubai before arriving in Dublin on 8th November, 2006. She claimed asylum immediately. She claimed to have a fear of persecution at the hands of state actors arising out of her perceived political opinion in the DRC. The ORAC recommended that the applicant not be declared a refugee. She appealed to the RAT and documentation was submitted in support of her claim. This included a birth certificate and newspaper reports that the applicant claimed related to her. While the newspaper reports appeared to refer to the applicant by name, the account they gave did not match that given by the applicant in the course of her asylum claim. The applicant attended an oral hearing with the RAT on 17th November, 2008. The hearing was not completed on that day and was adjourned to an unspecified date to be scheduled by the RAT. That hearing was subsequently part heard and adjourned. It was not resumed until 18th February, 2010, one year and three months after the original hearing. The RAT then took over a year to deliver its decision, which was signed on 3rd March, 2011, and finally transmitted to the applicant by letter dated 14th March, 2011. The entire process from the date of the first oral hearing to the final decision took two years and four months. The applicant complained that the RAT had not proffered any explanation for those long delays. The applicant instituted judicial review proceedings challenging the RAT"s decision, received by the applicant"s solicitors on 15th March, 2011, by notice of motion dated 26th May, 2011. That was outside the statutory time limit laid down by s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000. The applicant submitted that when determining asylum applications the RAT was implementing EU law and that the failure to conduct the hearing and give its decision within a reasonable time breached Chapter II, Article 10 of the Procedures Directive. The applicant further contended that the RAT"s delay in rendering its decision deprived the applicant of an effective remedy within the meaning of Article 39 of the Procedures Directive. Additionally, the applicant"s claim for asylum was rejected solely on credibility grounds. The RAT found that the applicant"s story was not plausible, that it lacked credibility and coherence, and that she was not, therefore, to be afforded the benefit of the doubt. The applicant contended that the Tribunal Member erred in his assessment of her credibility and that that rendered his decision unsafe.

Held by Justice Barr that the applicant had provided a satisfactory explanation for the delay in proceedings and extended the time for the bringing of the judicial review proceedings up to and including 26th May, 2011. The main ground upon which the applicant challenged the RAT"s decision was that of delay. In light of the evidence, Justice Barr reasoned that it was stretching belief that the Tribunal would be able to recall the demeanour of the applicant when giving her answers 13 months and 28 months previously. The time period was simply too long to expect that the impressions made by the applicant in her evidence would not have faded considerably, if not completely, in the period which had elapsed. With a delay of such magnitude, particularly where the Tribunal"s findings turned on the applicant"s credibility and demeanour, it was said to be understandable that she should feel that she did not get a fair hearing and determination of her asylum application. Thus, the Court was satisfied that the delay between the time when the appeal hearing began and the final delivery of the decision in March 2011, was too long, such that there must be valid concerns as to the fairness of the decision which emerged at the end of this process. In the circumstances, the applicant was entitled to an order of certiorari in respect of the decision of the first named respondent dated 3 ^rd March, 2011. In respects of the alleged defects in the RAT"s decision, the Court was of the opinion that the RAT"s finding that discrepancies in answers undermined the credibility of the applicant"s account was reasonably open to the Tribunal in the circumstances. It was further determined that her failure to answer questions was without substance and thus rejected. In light of the evidence presented Justice Barr determined that the RAT, in failing to give reasons for some decisions had failed in its duty. The court was also satisfied that, the Tribunal Member had failed to carry out a rational analysis of the evidence and his conclusion that the applicant did not write the letters for which she was arrested was unsound. The reasons stated by the respondent did not flow from the evidence before the Tribunal. For these reasons and others, the Court concluded that the decision of the RAT had to be quashed due to the inordinate delay in holding the hearings before the RAT and the lengthy delay in the delivery of its decision. In addition, a number of the Tribunal"s findings had been found to be unsound and were consequently struck down. Thus, Justice Barr quashed the decision of the first named respondent dated 3rd March, 2011, and directed that the matter be referred back to the RAT to be heard by a different member of the Tribunal.

1 1. This is a telescoped judicial review application seeking, inter alia, an order of certiorari quashing the decision of the Refugee Appeals Tribunal ("the RAT") dated 3 ^rd March, 2011, affirming the recommendation of the Office of the Refugee Applications Commissioner ("ORAC") that the applicant not be declared a refugee. The applicant is also seeking a declaration that she was deprived of an effective remedy before a court or tribunal against the first instance determination of her application for refugee status, in compliance with the requirements of Chapter V, Article 39, of Council Directive 2005/85/EC ("the Procedures Directive").

Background

2 2. The applicant, who is a national of the Democratic Republic of Congo ("the DRC"), was born on 6 ^th June, 1976. She is unmarried, and is a Muslim of Kasi ethnicity. She speaks French, Lingala, and Swahili. The applicant studied hairdressing at university in Kinshasa but after her father's death was...