O (S M) v Refugee Applications Commissioner and Others

JurisdictionIreland
JudgeMr. Justice Cooke
Judgment Date07 May 2009
Neutral Citation[2009] IEHC 219
Date07 May 2009
CourtHigh Court
Docket Number[No. 1192 J.R./ 2007]
O (S M) v Refugee Applications Commissioner & Ors

BETWEEN

S.M.O.
APPLICANTS

AND

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

[2009] IEHC 219

[No. 1192 J.R./ 2007]

THE HIGH COURT

IMMIGRATION

Asylum

Leave - Refusal of refugee status - Credibility - Claim of persecution - Allegations of murders and assaults of family members - Negative credibility findings - Inconsistencies - Absence of documents - Inadequacy of explanation for failure to claim asylum in Ethiopia - Application to join children as applicants - Prior inclusion in proceedings before commissioner and tribunal - Common interest in legality of decision - Whether good and sufficient reason to grant extension of time - Discretion - Relevant factors - Length of delay - Explanation for delay - Obligation to act promptly - Gap in information provided - Absence of explanation by or on behalf of children - Principle of family unity - Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360; GK v Minister for Justice [2002] IR 418; Azubugu v Refugee Appeals Tribunal [2007] IEHC 290 (Unrep, Peart J, 27/7/2007); O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301; OST v Minister for Justice [2007] IEHC 441 (Unrep, Hedigan J, 12/12/2007); De Roiste v Minster for Defence (Unrep, McCracken J, 28/6/1999); Golan v DPP [1989] ILRM 491; Ojuade v Minister for Justice [2008] IEHC 126 (Unrep, Peart J, 2/5/2008) and A v Refugee Appeals Commissioner [2008] IEHC 440 (Unrep, Irvine J, 3/12/2008) considered - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Leave refused (2007/1192JR - Cooke J - 7/5/2009) [2009] IEHC 219

O(SM) v Refugee Applications Commissioner

Facts: The first named applicant, who was a Somalian national sought leave to apply for judicial review of a Report and Recommendation of the first named respondent of 30 November 2004 and also the decision of the second named respondent dated 30 June 2005. The judicial review proceedings were initiated some 26 months following the decision of the second named respondent herein. This case was listed for hearing with a similar application in the case of NXQ v. Refugee Applications Commissioner & Another because both cases contained certain overlapping factors. The applicant’s three children were later joined as parties to these proceedings, having been included under her application for asylum. The applicant stated that she was not advised of judicial review grounds upon receipt of the decision of the first respondent. In relation to the decision of the second named respondent, the applicant stated that the Refugee Legal Service refused to have the decision reviewed on her behalf. The applicant also relied on health issues, namely depression and her financial position as reasons for her delay in seeking relief by way of judicial review.

Held by Cooke J. in refusing to grant an extension of time: That having regard to the inordinate length of the delay in this case, which was of itself exceptional, the scant evidence supplied by the applicant was wholly inadequate as a basis for the exercise of the Court’s discretion to extend time in this case. No evidence was supplied by the applicant’s children in respect of their delay in seeking relief. Accordingly, all the applicants were fixed with the same absence of explanation and justification for the delay in failing to apply promptly for an inordinate and inexcusable length of time to seek judicial review.

Reporter: L.O’S.

REFUGEE ACT 1996 S13

Q (NX) v REFUGEE APPLICATIONS CMSR & MIN FOR JUSTICE UNREP COOKE 6.5.2009 2009 IEHC 218

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

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

K (G) & ORS v MIN JUSTICE & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

A (F) & A (B) v REFUGEE APPEALS TRIBUNAL & ORS UNREP PEART 2007/1/188 2007 IEHC 290

O'DONNELL v DUN LAOGHAIRE CORP 1991 ILRM 301 1990/8/2084

T (OS) v MIN FOR JUSTICE & ORS UNREP HEDIGAN 12.12.2008 2008 IEHC 384

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33 2001/6/1371

SOLAN v DPP & WINE 1989 ILRM 491 1988/10/3025

OJUADE v REFUGEE APPLICATIONS CMSR & ANOR UNREP PEART 2.5.2008 (EX TEMPORE)

A (J) & A (D) v REFUGEE APPLICATIONS CMSR & ORS UNREP IRVINE 3.12.2008 2008 IEHC 440

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

RSC O.84

RESERVED JUDGMENT of
Mr. Justice Cooke
1

delivered on the 7th day of May, 2009.

2

1. This proceeding, in which the applicant seeks leave to apply for judicial review of a Report and Recommendation of the Refugee Applications Commissioner under s. 13 of the Refugee Act1996 and the subsequent decision of the Refugee Appeals Tribunal, was listed for hearing with a similar application in the case of NXQ v. Refugee Applications Commissioner & Anor. because of a certain number of overlapping factors in the two cases. Both parties were represented by the same junior counsel; both involved recently brought motions to add relatives of each applicant and for amendment of the statement of grounds; and both required substantial extensions of time under s. 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000 if the applications for leave were to be entertained. Immediately prior to the hearing of the submissions in the present case, judgment had been given on the issue of the extension of time in the NXQ case. The Court refused the extensions.

3

2. The first named applicant is a native of Somalia who arrived in the State at the end of December 2003 accompanied by four children who were then minors as follows:

· - a son Ah.M.A., born on 1st January 1989;
· - a son M.M.A., born on 1st January 1990;
4

· - a daughter S.M.A., born on 1st January 1991 and

5

· - a son A.M.A., born on 1st January 1996.

6

Three other children and the applicant's husband remain in Somalia.

7

3. She applied for asylum here on 6th January, 2004 and included the four children in that application. She claimed that she and her family were members of the Rer Hamar minority ethnic group and claimed to fear persecution at the hands of militia if returned to that country.

8

4. Her claim as made to the Commissioner was that she feared that she and her children would be killed by the militia if returned because her father was killed by them in an attack in 1999 when she herself was also struck which a bayonet. Her home had been attacked many times and her husband kidnapped. In an attack in October 2003, immediately before her flight from Somalia, her eldest daughter was killed, her husband abducted for ransom and her son Ah. hit. Since she left Somalia she claims that another of her sons had been killed in a further abduction.

9

5. In the report of 30th November, 2004 the Commissioner recommended that the applicant be not declared a refugee on this basis:

"The applicant's claims of her travel and whereabouts and personal circumstances before she applied for asylum in the State lack credibility and seriously bring into question the former habitual residences/nationalities of the applicant and the four minors considered under her application. This in turn serves to undermine the applicant's claims of persecution."

10

6. A decision of the Refugee Appeals Tribunal, on appeal from that decision on 30th June 2005, found that the applicant had failed to discharge the burden of proof in establishing a well founded fear of persecution, largely, in effect, upon credibility grounds based on a series of inconsistencies in her story identified by the Tribunal member, the absence of documents and on her failure to explain adequately why she had not claimed asylum in Ethiopia. The decision notes that she had four children with her in Ireland and that the eldest son, Ahmed, had died since the date of the Commissioner's report.

11

7. The applicant initiated the present judicial review application by originating notice of motion filed on 18th September, 2007, some 26 months following the decision of the Tribunal on 30th June, 2005. In the applicant's statement of grounds as originally formulated for the application, some 24 substantive grounds were put forward to be advanced as the basis to seeking leave to challenge both the decision of the Commissioner and that of the Tribunal. Prominent among those grounds at numbers 3, 4 and 8 are grounds directed respectively at the report of the Commissioner and the decision of the Tribunal which allege errors of law and breach of natural and constitutional justice requirements, based upon the proposition that the children were not afforded separate interviews before the Commissioner, although they were of ages which made them competent to be interviewed and they were willing, able and available to do so. Further, the Tribunal decision failed to make any assessment of their respective claims in their own right, although they were purported to be covered by the decision.

12

8. Having heard the parties on the preliminary application to join the three children as applicants in the proceeding and without prejudice to the issue of extending time, the Court decided to grant the application upon the grounds that these applicants had been included in the proceedings both before the Commissioner and the Tribunal; they had a common interest with their mother in the legality of those decisions and they did not appear to propose to advance any substantive new ground which would alter the effective scope of the application as originally formulated. The amended grounds proposed to be added as grounds 28, 29 and 30 appear to be variations or extensions of the existing grounds mentioned in the preceding paragraph of this judgment,...

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