A (T R) v Minister for Justice & Refugee Applications Commissioner
| Jurisdiction | Ireland |
| Judge | Mr. Justice Herbert |
| Judgment Date | 08 May 2008 |
| Neutral Citation | [2008] IEHC 133 |
| Docket Number | No. 875 J.R./2006 |
| Court | High Court |
| Date | 08 May 2008 |
[2008] IEHC 133
THE HIGH COURT
BETWEEN
AND
REFUGEE ACT 1996 S11
REFUGEE ACT 1996 S13(1)
REFUGEE ACT 1996 S2
K (G) v MIN JUSTICE 2002 1 ILRM 81
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(a)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(b)
REFUGEE ACT 1996 S16A
REFUGEE ACT 1996 S11A(3)
ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360
KAYODE v REFUGEE APPLICATIONS COMMISSIONER UNREP O'LEARY 25.4.2005 2005/33/6894 2005 IEHC 172
STEFAN v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY 2001 4 IR 203 2002 2 ILRM 134
O (FOY) v MIN JUSTICE & ORS UNREP 16.5.2007 2007 IEHC 237
MCGOLDRICK v BORD PLEANALA 1997 1 IR 497
BUCKLEY v KIRBY 2000 3 IR 431
REFUGEE ACT 1996 S2(c)
IMMIGRATION
Asylum
Credibility - Leave to apply for judicial review - Fair procedures - Audi alteram partem - Country of origin information - Whether duty upon decision maker to afford opportunity of responding to country of origin information adverse to applicant for asylum - Whether existence of alternative remedy adequate to cure defects in decision making process - Whether substantial grounds for contending that decision invalid and ought to be quashed - Stefan v Minister for Justice [2001] 4 IR 203 considered - Application for leave to seek judicial review granted (2006/875JR - Herbert J - 8/5/2008) [2008] IEHC 133
A(NA) v Minister for Justice
Facts: The applicant sought leave to seek orders of certiorari, mandamus and various declarations, by way of judicial review in relation to a decision of an Officer of the Refugee Applications Commissioner (ORAC), refusing to grant him refugee status. It was submitted on behalf of the applicant that the decision of ORAC was unfair in that he reached conclusions of fact, adverse to the applicant, in respect of material issues as to credibility without questioning the applicant about those matters or affording him an opportunity to respond or deal with those issues. It was further submitted that ORAC relied on certain country of origin information in making his decision, which the applicant was not given an opportunity of assessing or rebutting. The ORAC’s conclusion that the applicant was a fugitive from prosecution and not persecution was also not put to the applicant for clarification or submissions. The applicant delivered a notice of appeal to the Refugee Appeals Tribunal aswell as seeking leave to review.
Held by Herbert J. in granting the applicant leave: That the applicant ought not to be estopped from seeking judicial review by reason of the fact that he lodged a notice of appeal. That was done by way of caution and in order to prevent an issue of time being raised in the future and nothing futher was done on foot of that notice of appeal. The decision made by ORAC was not in accordance with fair procedures and was made without any notion of natural and consitutional justice. There were substantial grounds for challening the decision of ORAC.
Reporter: L.O’S.
on the 8th day of May, 2008.
The applicant in this application for leave to seek an order ofcertiorari, an order of mandamus and various declarations, by way of judicial review, is a single male Nigerian national, who gives his date of birth as 18th February, 1978. His address (is given) in his country of origin was in the city of Warri in Edo State. He states that he travelled here from Lagos airport on the 11th April, 2006, via Amsterdam and completed the ASY 1 Form, applying for refugee status in this State on his arrival here on the 12th April, 2006. He claims to be a primary school teacher. He states that he is a Christian and his first language is English. He personally completed the Questionnaire for Application for Refugee Status on 25th April, 2006, without legal assistance.
He was interviewed, in accordance with the provisions of s. 11 of the Refugee Act,1996 (as amended) by Michael Grange, an Officer authorised by the Refugee Applications Commissioner. This interview took place on the 24th June, 2006, in English without an interpreter.
The applicant told the interviewing officer that he joined the Niger Delta Political Party in or about 2001 or 2002 and became an active member of that party. He said that he also became a member of the Niger Delta Peoples Volunteer Force, the military section of that Party and received weapons training. He said that he worked in the primary school from 08.00 hours to 14.00 hours and when he went home he acted as a spier (sic), for the Ijan ethnic group to which his mother belonged, against the Itshekiri ethnic group to which his father belonged and he sometimes acted as a double agent for both.
He told the interviewing officer that in December 2005 the Itshekiri discovered his activities. He was threatened, his mobile telephone was taken and his motor car was shot at on the 11th January, 2006, and on the 18th January, 2006. He said that on the advice of his Party boss he left his home and resigned from his teaching position and went to stay with a girlfriend who also lived in Warri. He said that he could not go to the police because they were corrupt and also because they were looking to arrest any member of a military group and they knew that he was a member of a military group and they might kill him. He said that some Itshekiri are in the police. Some two or three weeks after the second shooting, on the advice of his girlfriend he went to stay with a friend in Lagos. He asked his girlfriend to get some money from his house in February 2006. She found that his house had been ransacked and that photographs of him had been taken. People then started telephoning his friend saying that they wanted to contact the applicant to give him back his mobile telephone. His friend became afraid that these people would kill him and his family. In March 2006 on the advice of his friend and his girlfriend the applicant decided to leave Nigeria.
In the report of the Refugee Applications Commissioner, made pursuant to the provisions of s. 13(1) of the Refugee Act,1996 (as amended), it was held that the applicant had failed to establish a well founded fear of persecution in accordance with the provisions of s. 2 of the 1996 Act, and it was recommended that he should not be declared a refugee. This decision was notified to the applicant by a letter dated 3rd July, 2006. The originating notice of motion is dated 19th July, 2006. At the hearing of this application, the respondents did not object to the application for an extension of time by two days. Having considered the various matters specified by Finnegan J. in "GK" v The Minister for Justice, Equality and Law Reform [2002] 1 I.L.R.M. 81, I considered that there was good and sufficient reason as required by s. 5(2)(a) of the Illegal Immigrants (Trafficking) Act, 2000 to extend the time and I made the Order accordingly. The Statement to Ground Application for Judicial Review is dated 19th July, 2006, and is supported by a Verifying Affidavit sworn by the applicant on the 19th July, 2006.
At the hearing of this application, Senior Counsel for the applicant, while referring to the written submissions filed on behalf of the applicant, (replying submissions were filed on behalf of the respondents on 10th December, 2007), submitted that the decision and recommendation of the Refugee Applications Commissioner should be set aside on what she stated were a number of substantial grounds as required by s. 5(2)(b) of the Illegal Immigrants (Trafficking) Act, 2000.
The first ground advanced by Senior Counsel for the applicant is that the decision of the Refugee Applications Commissioner is not merely incorrect, but that the manner in which it was reached was so totally lacking in basic fairness that it would be unjust to permit the Decision to stand, particularly having regard to the provisions s. 16(A) of the Refugee Act, 1996 (as amended) and s. 11A(3) of that Act. Though the system is an inquisitorial one, Senior Counsel submitted that the Refugee Applications Commissioner had reached conclusions of fact, adverse to the applicant, in respect of material issues as to credibility, without ever questioning the applicant about the particular matters and affording him a reasonable opportunity of dealing with the issues involved, if he wished. Senior counsel for the applicant instanced the following findings by the Refugee Applications Commissioner:-
2 "1. He also claims that the police knew he was a member of a military group. Had this been the case it would have been open to the police to arrest him at any stage.
2. It is difficult to believe that if the police had information on him being a NDPVF member that they would not have also known that he was a teacher in a State school and they could have readily arrested him there.
3. He claims that his friend invited him to move to Lagos and he did so in the middle of February 2006. This means that the applicant stayed in Warri for two or three weeks where he alleges that he was twice shot at rather than immediately leaving for Lagos, this does not appear consistent with him holding a genuine fear for his life.
4. He claimed that he contacted his girlfriend [in Warri] and asked that she go to his house to retrieve money that he had left in his house in Warri. He claims that she told him...
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