A (A) v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 18 July 2013
• Neutral Citation: [2013] IEHC 355
• Judgment citation (vLex): [2013] 7 JIC 1802
• Court: High Court
• Date: 18 July 2013

[2013] IEHC 355

THE HIGH COURT

[No. 351 J.R./2012]

A (A) v Min for Justice & Ors

No Redaction Needed

JUDICIAL REVIEW

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, SECTION 5

AND

IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED)

BETWEEN

A. A.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S17(7)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)

IMMIGRATION ACT 1999 S3

M (M) v MIN FOR JUSTICE & ORS UNREP HOGAN 18.5.2011 2012/23/6795 2011 IEHC 547

M (M) v MIN FOR JUSTICE & ORS 2013 1 WLR 1259

M (M) v MIN FOR JUSTICE & ORS (NO 3) UNREP HOGAN 23.1.2013 2013 IEHC 9

HOGAN & ORS ADMINISTRATIVE LAW IN IRELAND 4ED 2010 866

GORDON v DPP & DISTRICT JUDGE MCGUINNESS 2002 2 IR 369 2003 1 ILRM 81 2002/12/2907

Judicial Review – Refugee status - Deportation - Application for subsidiary protection refused - Language analysis reports - Documentary evidence - Protection from serious harm - Practice and procedure - Consideration - Refugee Act 1996

Facts: The applicant claimed that he was originally from Somalia and applied for asylum upon arrival in Ireland. However, his application was rejected at first instance before the Refugee Applications Commissioner and on appeal before the Refugee Appeals Tribunal. Underpinning these decisions was a language analysis report that had been prepared in respect of the applicant. The report concluded that the applicant did not speak Somalian, the national language of Somalia, instead only speaking Swahili. The applicant sought to judicially review these decisions, claiming the language analysis report was fundamentally flawed and he submitted two language analysis reports in support of this contention. However, leave was refused and the reports were deemed inadmissible as they had not been put before the decision makers originally. The applicant subsequently sought to reapply for refugee status, this time including his language analysis reports in support, but this was also refused at first instance and on appeal on the basis that the new evidence was not compelling enough to constitute a readmission into the refugee system.

The applicant then made a claim for subsidiary protection on the basis that there was a risk of serious harm if he was returned to his country of origin due to his membership of the Bajuni ethnic group but this was also rejected and a deportation order was made. This decision was based on a finding by the first named respondent that the applicant was originally from Tanzania, and not Somalia as he claimed, which was derived from a report by the UK border agency that linked the applicant”s fingerprints to two visa applications made by a national of Tanzania. Prior to the decision being reached, the Irish Naturalisation and Immigration Service wrote to the applicant highlighting this revelation. The applicant”s solicitor wrote back admitting to one of the visa applications stating that he had made them by falsely claiming to be from Tanzania. However, he did ask for his language analysis reports to be taken into account despite the fact these had not been enclosed with his application.

Leave to apply for judicial review was subsequently sought challenging the validity of the decisions to refuse subsidiary and to make a deportation order. The grounds for the application were that the first named respondent had failed to give proper consideration to his language reports that he claimed established his Somalian identity. It was accepted that these reports had not been enclosed with the original application however it was said that the conduct of the Irish Naturalisation and Immigration Service indicated that they knew of their existence yet did nothing to acquire them. It was also said that the first named respondent had failed to give the applicant a proper opportunity to address the allegation that he was a Tanzanian national.

Held by Mac Eochaidh J that the applicant”s argument that he was not given a proper opportunity by the first named respondent to address the allegation that he was a Tanzanian national failed as the Irish Naturalisation and Immigration Service had written to the applicant prior to the subsidiary protection decision being made advising him of the UK border agency report and advising him to address these allegations.

However, it was held to be noteworthy that when the applicant wrote to the Irish Naturalisation and Immigration Service explaining the findings of the UK border agency report and asking for his two language reports to be taken into consideration, the Irish Naturalisation and Immigration Service did not write back asking what reports he was referring to. It was therefore determined that even though the reports had not been contained in the original application, the Irish Naturalisation and Immigration Service”s conduct indicated that it was aware of their existence. These reports were not referred to in the subsidiary protection decision inferring that they had not been taken into consideration. On that basis, it was held that the subsidiary protection decision was fundamentally flawed as these were important documents that had to be considered before the application could be rejected.

Subsidiary protection decision quashed. Matter remitted to decision maker for fresh consideration.

1 JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 18th day of July 2013

2 1. This is a 'telescope' application for leave to seek judicial review of the decision of the first named respondent not to grant subsidiary protection to the applicant and of his decision to make a deportation order. Simply stated, the Minister's decisions are based on a finding that the applicant is a national of Tanzania and not of Somalia, as he claims. The grounds upon which the applicant challenges the validity of the decisions are that the first named respondent did not have regard to language reports which the applicant claims establishes his Somali identity and that the first named respondent failed to give the applicant an opportunity to address the allegation that he was a Tanzanian national.

3 2. The impugned decisions are the latest decisions taken in respect of the applicant's claims for international protection in Ireland and it is necessary to briefly survey previous decisions before examining the relevant facts and legal principles in this case.

4 3. An application was made for refugee status dated 25 ^th January, 2005. In accordance with s. 11 of the Refugee Act 1996 an interview was conducted with the assistance of an interpreter and a report pursuant to s. 13 of the Act was prepared. A negative recommendation was made in September, 2005. Underpinning this recommendation was a language analysis report dated 24 ^th May 2005, prepared by the Immigration and Naturalisation Service of the Ministry of Justice of the Netherlands. Section 4 of the report is entitled 'Applicant's Language(s)/Dialect(s)' and concludes that:-

"The applicant only speaks Swahili. He has no knowledge whatsoever of Somali, which is the national language of Somalia. Phonology, lexicon and syntax when analysed indicate either north eastern coast Swahili or standard Swahili. The conclusion of the report is that the applicant "can definitely not be placed within the speech community of Somalia. The applicant can most likely be placed within the speech community of the northern coast of Kenya or Zanzibar." (The language analysis report is not referred to in the s. 13 report for the Refugee Applications Commissioner)"

5 4. On 6 ^th July 2005, two months or so prior to the first instance decision, the Refugee Legal Service made complaint to the Refugee Applications Commissioner that the language analysis was fundamentally flawed and should not be relied upon. The applicant insisted through his solicitor that the interview was conducted in Bajuni and that the person conducting the language analysis did not speak Bajuni.

6 5. The negative decision of the Refugee Applications Commissioner was appealed to the Refugee Appeals Tribunal and a hearing was conducted on 18 ^th June, 2007, where the applicant was again assisted by a Kibajuni interpreter. A negative decision of the Refugee Appeals Tribunal issued on 31 ^st July, 2007. Judicial review was sought and two new language reports seeking to condemn the Dutch language analysis test were exhibited in support of the proceedings but these were deemed inadmissible as they had not been before the decision makers. Following the refusal of substantive reliefs in judicial review proceedings brought before Ryan J., an application was made to the Minister pursuant to s. 17(7) of the Refugee Act 1996, for consent to re-enter the asylum system which was refused on 20 ^th May 2011, and appealed by letter dated 19 ^th July 2011.

7 6. The principal ground advanced for reconsideration of the applicant's claim for refugee status was the evidence as to nationality contained in the two new language reports. The report of Professor Derek Nurse is dated 30 ^th September, 2009. Professor Nurse is an academic linguist specialising in African languages and has a specialist knowledge of Banjuni language and people. Professor Nurse says in his conclusions that:-

"His speech would best be viewed as a Swahili framework with Bajuni add-ons."

8 At s. 6 of the report Professor Nurse concludes that his language could be described as Swahili with a Banjuni accent. Professor Nurse continues:-

"Two questions need to be answered. Is this compatible with being a young Bajuni from Somalia, specifically Koyama? Could the applicant have learnt this material, that is, is he non-Bajuni who has simply learnt...