U.P. v Minister for Justice, Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 26 November 2014
• Neutral Citation: [2014] IEHC 567
• Court: High Court
• Date: 26 November 2014

P (U) v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN/

U.P.

APPLICANT

AND

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

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

[2014] IEHC 567

[No. 794 J.R./2011]

THE HIGH COURT

Immigration and asylum - Refugee status - Telescoped application for leave to apply for judicial review - Order of Certiorari - Commissioner made finding pursuant to s. 13(6) (b) Refugee Act 1996 - Credibility findings - Unreasonable and disproportionate - No reasons provided by Tribunal - Right to an oral hearing on appeal

Facts The applicant is a Pakistani national. He arrived in Ireland in 2005 on a student visa which he subsequently extended until March 2011. Following the expiration of his visa the applicant applied for asylum on 7 ^th April 2011. He claimed a fear of persecution owing to religious extremists in his home country. He said he had recently converted from Sunni faith to Shia. He said his family reacted badly to this- they confiscated his passport, beat him and locked him in a room. He claimed he was assaulted and threatened that he would be killed if he did not convert back to Sunni faith. The applicant stated his aunt retrieved his passport and helped him make arrangements to travel to Ireland. In his s.11 interview ORAC refused refugee status owing to a lack of credibility. ORAC considered that the applicant”s delay of almost a year and a half in applying for asylum undermined his credibility. The applicant sought to challenge the decision of the Commissioner by way of judicial review. The respondents brought a motion to dismiss. ORAC found that even if the applicant”s claims were credible, there was no objective evidence to suggest the applicant could not pursue a complaint to the police in Pakistan and that internal relocation was an option open to him. The applicant submitted that the exercise by the Commissioner of his discretion under s. 13(5) of the Refugee Act 1996 to introduce a finding pursuant to s. 13(6)(c) was disproportionate and therefore wrong in law, in that it deprived the applicant of an oral hearing on appeal. The applicant submitted that ORAC was not obliged to deny him an oral hearing and that the Commissioner acted unreasonably and disproportionately in doing so. The applicant submitted ORAC”s recommendation was based solely on an assessment of his personal credibility, particularly in respect of whether he had a reasonable explanation for not applying for refugee status earlier.

Held The judge concluded where the applicant”s personal credibility was in issue, it was disproportionate and unreasonable to make a finding under s. 13(6) (c). The judge held ORAC failed to properly analyse the applicant”s explanation for not seeking asylum sooner. In the circumstances, the judge concluded ORAC acted unreasonably and disproportionately in making the findings which led to his losing the right to an oral hearing on appeal. On this ground, the decision of ORAC was quashed. The judge referred to the applicant”s hope of reconciliation with his family. This hope was extinguished when his friend returned from Pakistan in March 2011 and told him that his family and the religious extremists were still looking for him. It was at this point, upon the expiry of his student visa that the applicant decided to seek asylum. The judge held ORAC did not carry out any analysis nor did it give reasons as to why this was not credible. ORAC failed to give the applicant”s version of events proper consideration. Accordingly, the decision was quashed.

-Judge made order in the terms of paragraph 2 of the Notice of Motion and granted certiorari of the recommendation of the ORAC.

REFUGEE ACT 1996 S13(6)(C)

REFUGEE ACT 1996 S13(5)

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S16

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

REFUGEE ACT 1996 S13(6)

REFUGEE ACT 1996 S13(6)(A)

N (BN) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR 2009 1 IR 719 2008/45/9749 2008 IEHC 308

Z (V) v MIN FOR JUSTICE & ORS 2002 1 IR 135 2002 2 ILRM 215 2003/49/12190

C (XL) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP COOKE 10.2.2010 2010/7/1498 2010 IEHC 148

S (P) (A MINOR) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 18.6.2009 2009/51/12777 2009 IEHC 298

KONADU v REFUGEE APPLICATIONS CMSR UNREP BIRMINGHAM 11.4.2008 [TRANSCRIPT NOT AVAILABLE]

W (A) v OFFICE OF REFUGEE APPLICATIONS CMSR & ORS UNREP MAC EOCHAIDH 19.2.2013 2013/51/14536 2013 IEHC 71

N (SU) [SOUTH AFRICA] v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 30.3.2012 2012/33/9649 2012 IEHC 338

REFUGEE ACT 1996 S13(6)

SEN HE v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP HOGAN 7.10.2011 [TRANSCRIPT NOT AVAILABLE]

1 JUDGMENT of Mr. Justice Barr delivered the 26th day of November, 2014

2 1. This is a telescoped application by way of judicial review seeking, inter alia, an order of certiorari quashing the recommendation of the Office of the Refugee Applications Commissioner ("ORAC"), dated 13 ^th July, 2011, that the applicant not be declared a refugee; or, alternatively, an order of certiorari quashing ORAC's recommendation, only insofar as it makes a finding pursuant to s. 13(6)(c) of the Refugee Act 1996, as amended, in respect of the applicant.

3 2. Section 13(5) of the Act of 1996 provides:

4 Where a report under subsection (1) includes a recommendation that the applicant should not be declared a refugee and includes among the findings of the Commissioner any of the findings specified in subsection (6), then the following shall, subject to subsection (8) apply:

5 (a) the notice under paragraph (b) of subsection (4) shall, notwithstanding that subsection, state that the applicant may appeal to the Tribunal under section 16 against the recommendation within ten working days from the sending of the notice, and that any such appeal will be determined without an oral hearing.

6 3. Section 13(6)(c) provides:

7 The findings referred to in subsection (5) are -

8 […]

9 (c) that the applicant, without reasonable cause, failed to make an application as soon as reasonably practicable after arrival in the State.

10 4. Thus the effect of ORAC's s. 13(6)(c) finding is that the applicant will not have the opportunity to have an oral appeal before the RAT; it will be a papers only appeal.

Background

11 5. The applicant was born on 23 ^rd October, 1986, and is a national of Pakistan. He arrived in Ireland in 2005 on a student visa, which was subsequently extended until 30 ^th March, 2011. Following the expiration of his visa, the applicant applied for asylum in the State on 7 ^th April, 2011.

12 6. The basis of his asylum claim is that he fears persecution at the hands of religious extremists due to his conversion in 2008 from the Sunni faith to the Shia faith. The applicant claimed that when he returned to Pakistan in July 2009, his conversion was discovered. He stated that his family reacted badly. He claims that they took his passport, beat him, and locked him in a room. He stated that he was assaulted and warned by religious extremists that he would be killed if he did not convert back to the Sunni faith. The applicant claims that his aunt retrieved his passport and helped him to escape back to Ireland in September 2009, where he continued his studies.

13 7. Following his asylum application on 7 ^th April, 2011, the applicant had a s. 11 interview with ORAC. In its s. 13(1) report, ORAC recommended that the applicant not be declared a refugee. The Commissioner did not find the applicant's subjective testimony to be credible and considered that the applicant's delay of almost a year and a half in applying for asylum, after the occurrence of the alleged persecution in the summer of 2009, undermined his credibility. The Commissioner therefore made a finding under s. 13(6)(c), as a result of which the applicant's appeal will be on papers only.

14 8. The applicant instituted these proceedings seeking leave to challenge the Commissioner's recommendation by way of judicial review on 31 ^st August, 2011. The respondents brought a motion to dismiss the applicant's case, which was heard by Mac Eochaidh J. on 24 ^th January, 2014. While most of the applicant's grounds were either abandoned or dismissed at that stage, he was permitted to proceed on the two grounds set out below:

15 (i) The exercise by the second named respondent of his discretion under s. 13(5) of the Refugee Act 1996 as amended to include a finding in respect of the applicant pursuant to s. 13(6)(c) was disproportionate and therefore wrong in law in that it deprives the applicant of an oral hearing on appeal under s. 16.

16 (ii) No consideration was given to the explanation offered by the applicant for his failure to apply for asylum immediately upon his arrival in the State and the applicant was given an inadequate opportunity to address this issue. No reason is given for the second respondent's failure to accept the reasonableness of the applicant's cause for making the application for asylum when he did and his failure to make the application earlier.

Extension of time

17 9. The applicant was issued with ORAC's decision by letter dated 5 ^th August, 2011, which he received on 8 ^th August, 2011. However, he did not institute these proceedings until 31 ^st August, 2011. This was outside the statutory time limit laid down by s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000, which provided that proceedings had to be instituted,

"within the period of 14 days commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of the Order concerned unless the High Court considers that there is good and sufficient...