Satarov v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH,Mr. JUSTICE SMYTH
• Judgment Date: 04 October 2002
• Neutral Citation: 2002 WJSC-HC 6291
• Date: 04 October 2002
• Court: High Court

2002 WJSC-HC 6291

THE HIGH COURT

Record No. 838JR/2001

SATAROV v. MINISTER FOR JUSTICE & NICHOLSON (REFUGEE APPEALS TRIBUNAL)

(JUDICIAL REVIEW)

Between/

BOGDAN SATAROV

Applicant

-and-

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM and JAMES NICHOLSON, REFUGEE APPEALS TRIBUNAL

Respondents

Citations:

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11

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

REFUGEE ACT 1996 S17(1)(A)

REFUGEE ACT 1996 S17(1)(B)

K(G) & ORS V MIN FOR JUSTICE 2002 2 IR 418 2002 1 ILRM 401

REFUGEE ACT 1996 S17(6)

CONSTITUTION ART 40

Synopsis:

IMMIGRATION

Asylum

Certiorari - Declarations - Refugee status - Prohibition - Application for asylum refused - Applicant sought leave to apply for judicial review on grounds that Refugee Appeals Tribunal had acted in contravention of natural and constitutional justice - Whether tribunal had allowed insufficient time for hearing of appeal - Extension of time to apply for judicial review - Refugee Act, 1996 - Illegal Immigrants (Trafficking) Act, 2000 (2001/838JR - Smyth J - 4/10/02)

Satarov v Minister for Justice, Equality and Law Reform

Facts: The applicant was a Ukrainian National who claimed asylum on the grounds that he left Ukraine fearing persecution. The Commissioner refused to grant the applicant refugee status. He appealed to the Refugee Appeals Tribunal but the decision was upheld. The applicant sought leave to apply for judicial review on grounds that the appeal was conducted in a manner inconsistent with fair procedures. He claimed that the Tribunal acted in contravention of natural and constitutional justice in (i) not allowing sufficient time for the hearing of the appeal; (ii) taking into account irrelevant and improper considerations; (iii) declining to allow applicant to open corroborative evidence and further failing to demonstrate that regard was had to such evidence; (iv) placing disproportionate reliance upon submissions made by the presenting officer; (v) concluding that the applicant had fabricated evidence without recording reasonable grounds for such conclusion.

Held by Smyth J. in extending the time within which to apply for judicial review and granting leave to apply for judicial review (i) justice and fairness must never be sacrificed for administrative efficiency; (ii) it was not improper to enquire as to whether applicant might not have obtained alternative employment; (iii) if applicant is precluded from adducing evidence there should be express reference to that evidence to show that regard has been had to what was unspoken but could be found in the documents; (iv) both sides must be given a proper opportunity to be heard; (v) the applicant had confessed to fabrication earlier and as a result it did not lie with the Tribunal to determine fabrication unless on some other identifiable material and basis.

JUDGMENT OF

1 MR. JUSTICE T.C. SMYTH DELIVERED ON FRIDAY, THE 4TH DAY OF OCTOBER 2002

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes in the above-named judgment.

APPEARANCES

For the Applicant:

MS. A. POWER BL

For the Respondent:

MR. McGRATH

APPEARANCES

Mr. JUSTICE SMYTH DELIVERED HIS JUDGMENT AS FOLLOWS

MR. JUSTICE SMYTH:	The Applicant is an asylum
	seeker from the Ukraine

3 who was born on 2nd November 1976. He asserts that he left the Ukraine fearing persecution, having divulged first hand evidence of alleged government corruption to a local newspaper editor. He arrived in the State on 22nd July 1999, and sought asylum on 23rd July 1999.

4 The Refugee Applications Commissioner (hereinafter referred to as “the Commissioner”) refused to grant the Applicant refugee status and this refusal he appealed to the Refugee Appeals Tribunal (hereinafter referred to as “the Tribunal”). The appeal was by way of oral hearing held on 2nd October 2001. The Applicant had legal representation in the preparation and conduct of the appeal — he either did not seek or avail of this right in his application to the Commissioner.

5 The thrust of the Applicant's case in these proceedings is that the oral hearing was conducted in a manner inconsistent with fair procedures. The decision of the Supreme Court, in In Re: The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, at 384/5, held that non-nationals had a constitutional right of access to the courts to challenge the validity of the decisions or other matters referred to in Section 5(1) of the Illegal Immigrants (Trafficking) Act 2000, (hereinafter referred to as “the Act of 2000”), that such non-nationals were entitled to the same degree of natural justice and fairness of procedures as a citizen of the State.

6 At the hearing, the Applicant recounted his experiences and answered questions raised by the First-Named Respondent (hereinafter referred to as “the Minister”) through his Presenting Officer and by the Tribunal in the person of the member of the Tribunal referred to in the title to these proceedings. The Tribunal recommended that the Applicant's claim be rejected on 3rd October 2001, and for the reasons set out in that recommendation the Minister decided to refuse the Applicant a declaration of refugee status. That decision was communicated to the Applicant by letter dated 27th November 2001, received by him on the following day. The letter made it clear that the Minister proposed to make a Deportation Order in respect of the Applicant.

7 Two years before coming to Ireland, the Applicant, who avers he has no known family, took academic leave and accepted a position as a sales consultant at a well known specialist store in his country of origin. Whilst so employed, he says he became aware of fraudulent schemes with various State officials (including the police) and the store's proprietor, and did not approve of what he considered to be State corruption. He made known the facts as he understood them to the editor of a local "opposition" newspaper. Shortly thereafter the police came to his place of work, he was fearful, and on the advice of a friend he left his country of origin with a view to going to the United States of America. Apparently, at an earlier date he had obtained a "Schengen" visa for the purposes of summer holiday travel; this visa permitted him to travel freely through European States that are parties to the Schengen Agreement.

8 By a series of subterfuges, he made his way from Amsterdam to London to Belfast and thence to Dublin. It is accepted by the Applicant that at first instance before the Commissioner he had exaggerated his account by dramatic details of imprisonment and escape. He regrets these distortions of truth and did "come clean" on the matter prior to the oral hearing.

9 What is in issue in these proceedings is the decision of the Tribunal dated 3rd October 2001, and the decision of the Respondent Minister related to and consequent thereon. The decision of the Tribunal was notified to the Applicant by letter dated 23rd October 2001. It makes clear to the Applicant that the Tribunal's decision was reached having considered the following matters:-

10 (i) the Notice of Appeal (including grounds of appeal) and all supporting documentation and records;

11 (ii) the report and recommendation of the Commissioner under Section 13 of the Act of 1996;

12 (iii) all documents, representations in writing and other information submitted to the Commissioner as provided for under Section 11 of the Act of 1996, which had previously been provided to the Applicant's legal representative;

(iv) the documents submitted by the Applicant with his appeal;

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