T.N. v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 30 July 2007
• Neutral Citation: [2007] IEHC 257
• Docket Number: [2004 No. 205 JR]
• Court: High Court
• Date: 30 July 2007

N (T) v MINISTER FOR JUSTICE & ORS

JUDICIAL REVIEW

BETWEEN/

T.N.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE REFUGEE APPLICATIONS COMMISSIONER AND THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

[2007] IEHC 257

No. 205 J.R./2004

THE HIGH COURT

IMMIGRATION

Asylum

Application for refugee status - Refusal - Appeal - Fair procedures - Documents submitted with application - Documents not translated into English - Whether failure to consider documents breached fair procedures and statutory scheme - Refugee Act 1996 (No 17), ss 11 and 16(16) - Relief granted (2004/205JR - Finlay Geoghegan J - 30/7/2007) [2007] IEHC 257

N(T) v Minister for Justice

: The applicant sought certiorari of a decision of the respondent to refuse him refugee status. The applicant asserted that twenty-nine documents submitted by him in support of his claim relating to his activities in Romania in a trade union had not been properly considered by the respondent, in breach of fair procedures, and that he had not been questioned about the said documentation.

Held by Finlay Geoghegan J. that the respondent could not ignore the contents of the documents. Certiorari would be granted.

Reporter: E.F

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S13(5)

REFUGEE ACT 1996 S16(6)(e)

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S13(6)(c)

REFUGEE ACT 1996 S13(6)(d)

REFUGEE ACT 1996 S13(6)(e)

REFUGEE ACT 1996 (SAFE COUNTRIES OF ORIGIN) ORDER 2003 SI 422/2003

REFUGEE ACT 1996 S12(4)(a)

REFUGEE ACT 1996 S13(6)

REFUGEE ACT 1996 S16(16)(a)

REFUGEE ACT 1996 S16(16)

REFUGEE ACT 1996 S11A(3)

REFUGEE ACT 1996 S2

1 Judgment of Ms. Justice Finlay Geoghegan delivered 30th July, 2007 .

2 This judgment is circulated in redacted form to avoid identification of the parties

3 The applicant is Romanian. He, his wife and daughter came to Ireland in 2002. He and his wife with the assistance of Cusack McTiernan Solicitors made applications for declarations of refugee status in April, 2003. In January, 2004 the Refugee Applications Commissioner (the Commissioner) issued reports pursuant to s. 13 of the Refugee Act, 1996 (as amended) recommending in each case that the applicant not be granted a declaration of refugee status. The applicant and his wife appealed to the Refugee Appeal Tribunal. Section 13(5) of the Act of 1996 applied to such appeals for the reasons set out below and accordingly such appeals are to be determined without an oral hearing.

4 On 27th February, 2004 the Tribunal affirmed the recommendation of the Commissioner that the applicant should not be declared to be a refugee. This decision was issued in reliance upon the decision of Mr. Eamonn M. Barnes, the Member of the Tribunal of 20th February, 2004. A similar decision was issued in respect of the applicant's wife.

5 The applicant and his wife each commenced an application for leave to issue judicial review by a notice of motion dated 11th March, 2004. By order of the High Court (White J.) of 6th March, 2006, leave was granted in each set of proceedings to seek the reliefs set out in an amended statement of grounds dated 3rd March, 2006 upon the grounds set out therein.

6 Both sets of proceedings came on for hearing before me. It was agreed that the same issues arose in both sets of proceedings. Further, that the applications should be considered and determined by reference to the documents and facts expressly set out in these proceedings. The parties agreed that my decision in these proceedings would apply to and determine the proceedings brought by the applicant's wife, [ ] (2004 No. 204 J.R.).

7 In the order granting leave, the Refugee Applications Commissioner was joined as a notice party and leave was granted to challenge the decision of the Commissioner reflected in the report issued under s. 13 of the Act of 1996 in January, 2004. At the commencement of the hearing I was informed by counsel for the applicant that he was not pursuing a challenge to the decision of the Commissioner and no relief was being sought against the Commissioner. The respondents had been informed of this position. Further, I was informed that certain of the other grounds were not being pursued. The relief and grounds pursued are those which follow.

8 The principal relief pursued is an order of certiorari of the decision of the Tribunal of 27th February, 2004 in reliance upon the decision of the Member of the Tribunal of 20th February, 2004. It is submitted that the Tribunal in determining the appeal acted in breach of the applicant's right to have the appeal determined in accordance with the principles of constitutional and natural justice and fair procedures. It was also submitted that the Tribunal acted in breach of its obligations under s. 16(6)(e) of the Act of 1996. The alleged breach is the failure by the Tribunal to consider nineteen of twenty-nine documents submitted by the applicant in support of his application for a declaration of refugee status in the circumstances set out below.

Relevant background facts

9 The following are the facts as alleged and disclosed by the applicant. The applicant lived all his life in Romania until July, 2000 when he was obliged to leave for his personal safety. He was employed by Romanian Railways [ ] from approximately 1980 until 1997. By 1991 he had qualified as a locomotive driver. For reasons, partly of health, in 1994 he changed and worked as the manager of a railway station restaurant.

10 During his employment with [ ] the applicant became aware of significant corruption within the [ ] system and that the transport police, a separate section of the police force, used their positions of authority to extort money from various sections of the national railway. He experienced this as part of his work as manager of the railway restaurant from 1994.

11 Subsequent to the fall of the Ceauoescu regime he initially joined the National Liberal Party and then the Partidul România Mare (Greater Romania Party). One of the main aims of this party was to root out the corruption alleged to be endemic in Romanian life. The applicant was an active member of such party and spoke out against corruption. The applicant was an active member of the trade union movement and in 1996 founded a trade union for catering workers of the railway company.

12 In 1997 the [ ] decided to sell their restaurants through a franchise arrangement. The applicant purchased the lease of two such restaurants and employed certain former staff of the [ ] to work in the restaurants.

13 The applicant was then subjected to constant harassment from the transport police, including the instigation of complaints against him, the opening of a criminal file and the organisation of a media campaign against him. During this period of harassment he was informed that if he gave up his trade union membership, his political agitation and paid money to the police that his complaints would go away. The applicant made complaints about police corruption which he alleges were not investigated properly. In 2000 he threatened to complain to an international body outside of Romania. Shortly after that he was accosted by a policeman who pointed a gun at him and threatened that if he did not withdraw all his complaints, give up his trade union activities and political party that his family would be killed. Two days after this the applicant fled to Italy where he obtained leave to stay on humanitarian grounds for one year only. His wife and daughter joined him in Italy in October, 2000. Whilst in Italy he alleges that he became aware through the Romanian community where he was living that a Romanian policeman was making enquiries about him. He believes this to be the policeman who threatened him with a gun. His leave to stay in Italy was not renewed and he came with his wife and daughter to Ireland in September, 2002.

Application for refugee status

14 The applicant did not speak English when he arrived in Ireland. In December, 2002, he was introduced to Cusack McTiernan Solicitors by a client of theirs. Mr. Felix McTiernan, solicitor of that firm, in his affidavit states he was unable to see him until January, 2003. Thereafter he arranged at his expense to obtain the services of an interpreter and took detailed instructions from the applicant and assisted him in preparing an application for refugee status.

15 The applicant with the assistance of Mr. McTiernan completed the questionnaire issued by the Office of the Refugee Applications Commissioner ("ORAC") on 25th April, 2003. The claim made is a fear of persecution from the transport police in Romania supported by the Ministry of Transport and the Ministry of the Interior. It is alleged that the reasons for which he had been persecuted are that, as leader of a trade union and a member of an opposition political party, he spoke out against corruption and refused to be part of it. The detailed information supplied in support of his claim included an eight-page detailed statement referred to as Schedule A and twenty-nine documents.

16 The information on the standard form questionnaire of ORAC envisages that documents would be submitted by an applicant. The instructions at paragraph 5 state "If you wish to rely on documentation you should provide this as early as possible". Question 23 asks "Do you have any other documentation in support of your application?". It then directs an applicant to list the documents submitted. In response to this question the applicant herein stated "see attached list". Twenty-nine documents were listed in the attached list. All the documents were in Romanian.

17 The applicant was interviewed on behalf of the Commissioner in accordance with s. 11 of the Act of 1996. He was not asked any questions about the documents submitted. The documents had...