S (A) v Refugee Applications Commissioner and Others
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE BIRMINGHAM |
| Judgment Date | 17 June 2008 |
| Neutral Citation | [2008] IEHC 221 |
| Court | High Court |
| Date | 17 June 2008 |
[2008] IEHC 221
THE HIGH COURT
BETWEEN
AND
SAVIN v MIN JUSTICE UNREP SMYTH 7.5.2002 2002/13/3176
OKUNGBOW v REFUGEE APPEALS TRIBUNAL & ORS RAC 8.6.2005
CROITRORIU v REFUGEE APPEALS TRIBUNAL & ORS UNREP MACMENAMIN 21.6.2005 2005 IEHC 476
RUSU v REFUGEE APPLICATIONS COMMISSIONER & MIN FOR JUSTICE UNREP HANNA 26.5.2006 EX TEMPORE
K (G) & ORS v MIN JUSTICE & ORS 2002 2 IR 418 2002 1 ILRM 401
ADAN v REFUGEE APPEALS COMMISSIONER & ORS UNREP FINLAY GEOGHEGAN 23.2.2007 2007 IEHC 54
T (TR) v MIN JUSTICE & ORS UNREP DUNNE 4.5.2007 2007 IEHC 168
BANZUZI v REFUGEE APPEALS TRIBUNAL & ORS UNREP FEENEY 18.1.2007 2007 IEHC 2
S (AW) v REFUGEE APPEALS TRIBUNAL & ORS UNREP DUNNE 12.6.2007 2007 IEHC 276
Immigration - Asylum - Immigration - Judicial review - Certiorari - Refugee application -DRC -Detention centre -Ill-treatment - Delay
Facts: The applicant for refugee status from the Congo who alleged ill-treatment sought certiorari against a decision making adverse findings relating to her credibility. The applicant alleged that the Tribunal had paid excessive attention to peripheral issues and that the assessment by the Tribunal of her credibility and the failure of the Tribunal to take into account factors favourable to her account warranted certiorari.
Held by Birmingham J. that there were no substantial grounds to make out for challenging the decision and the reliefs sought could be refused. The applicant had an entitlement to appeal which she exercised and there was ample material on which the Tribunal could have reached the view taken.
Reporter: E.F.
The applicant in this case is a national of the Democratic Republic of the Congo ("DRC"), who was born on 24 th January, 1967. She applied for asylum in Ireland on 29 th July, 2005. Her claim arises from her alleged membership of the organisation known as CONACO (the Congolese National Convention). The applicant says that she was Secretary-General of that organisation. It is her case that she was arrested in the city of Lubumbashi in the DRC in May 2006, along with other party members. She was, she says, initially held in a detention centre there where she was subjected to ill treatment, including torture and repeated rapes. After a week or thereabouts, she was transferred to Kinshasa, the capital of the DRC, where she was lodged in Makala prison, known as CPKR, which is apparently an acronym for penitentiary and re-education centre. That seems to have been a high security institution.
It is of some significance that the applicant says that she was transferred as part of a group that included some very high profile figures indeed, including Andre Tshombe, who is a son of the politician Moise Tshombe, who in turn was the leader of the Katanga rebellion in the 1960s. The applicant says that the group in which she was transferred comprised 13 men and two women.
The applicant claims that conditions were appalling at the prison in Kinshasa. Food was very limited, even more limited than it had been in the earlier detention centre. She was whipped three times daily, receiving 100 lashes a day, and was again raped on a number of occasions.
The applicant recounts that after just over two months at the prison, she was able to escape with the assistance of one of the prison guards. When she made her way over the prison wall, her father and another relative were waiting and she then made her escape from Kinshasa and from the DRC, dressed as a nun. She flew first to Kenya, from there to Amsterdam, and, ultimately, to Ireland. She apparently travelled on a false passport which she says that she returned to the agent who had supplied it, by post, following her arrival.
The applicant's claim for asylum was unsuccessful at first instance before the Office of the Refugee Applications Commissioner ("ORAC") and on appeal before the Refugees Appeal Tribunals ("RAT"). Both of these decisions are sought to be challenged in the course of the present proceedings.
The challenge to the ORAC recommendation/decision gives rise to some procedural questions. The decision is dated 16 th January, 2006, but the challenge was commenced only on 3 rd October, 2006 - some eight months later or thereabouts -notwithstanding that the time limit is fixed by statute at 14 days for the institution of proceedings.
No satisfactory explanation for the delay has been advanced. I would find it very difficult to find that there was good and substantial reason for extending time. However, in a situation where there is a very considerable overlap between the grounds relied on to challenge the ORAC decision/recommendation and the grounds relied in respect of the challenge to the RAT decision, and where those grounds have been opened, I prefer to decide the case other than by refusing to extend time.
This was a case where the applicant exercised her right to appeal. A detailed Notice of Appeal was submitted and an RAT oral hearing held, at which the applicant was represented by counsel. Until the decision of the RAT issued - a decision which, of course, was unfavourable to the applicant - there was no attempt to commence judicial review proceedings in respect of the initial ORAC decision/recommendation and, indeed, it does not seem that any such proceedings were even threatened.
The question of whether there remains extant a decision of ORAC capable of being challenged after there has been a concluded hearing before the RAT has been considered in a number of cases. There are a number of decisions that suggest that, in that situation, no extant decision survives and, instead, that the recommendation of ORAC is subsumed or merged into the decision of the RAT. Decisions such as those of Smyth J. in Savin v The Minister for Justice, Equality and Law Reform (unreported, High Court, 7 th May, 2002); MacMenamin J. in Okungbow v The Refugee Appeals Tribunal & Ors (unreported, High Court, June 8th, 2005) and Croitroriu v The Refugee Appeals Tribunal & Ors [2005] IEHC 476; and Hanna J. in Rusu v The Refugee Applications Commissioner & Ors (unreported, High Court, 26 th May, 2006) are to that effect.
That line of cases also receives some support from an obiter dictum of Hardiman J. in the case of GK v The Minister for Justice, Equality and Law Reform and Others [2002] 2 IR 418. However, the most elaborate consideration of this area is probably that of Finlay Geoghegan J. in Adan v The Refugee Applications Commissioner and the Refugee Appeals Tribunal [2007] IEHC 54. She concluded that there remained extant a decision, which therefore was potentially capable of being challenged. I have previously taken the view in the context of a leave application that given this divergence of approach, it is substantially arguable that the position is as held by Finlay Geoghegan J., and I propose to take that approach again today.
However, even Adan [2007] IEHC 54, which is the most favourable decision from an applicant's perspective, imposes considerable restraints on an applicant who has proceeded to an appeal which has actually been determined. In that case, Finlay Geoghegan J. commented that:-
"The normal position must be that where an appeal is determined the applicant has gone too far and the High Court will not subsequently interfere with the first instance decision by way of judicial review. While the Court retains a discretion to do so, it should only exercise its discretion to grant certiorari of a decision which has been the subject of a decided appeal where there exists special circumstances which make such late interference necessary to do justice for the parties."
That approach of Finlay Geoghegan J. was endorsed by Dunne J. in the case of R.T.T. v The Minister for Justice, Equality and Law Reform & Ors [2007] IEHC 168.
In this case, the criticism is that the ORAC officer's assessment of credibility was flawed. The dissatisfaction, initially, with the assessment of credibility gave rise to a detailed Notice of Appeal. It is striking that the grounds set out in the notice of appeal are, in a number of respects, remarkably similar to the issues canvassed in the course of the present proceedings....
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