O (O A) v Min for Justice & Office of the Refugee Applications Commissioner

• Jurisdiction: Ireland
• Judge: MR. JUSTICE BIRMINGHAM
• Judgment Date: 30 May 2008
• Neutral Citation: [2008] IEHC 217
• Docket Number: [656 JR/2006]
• Court: High Court
• Date: 30 May 2008

O (O A) v Min for Justice & Office of the Refugee Applications Commissioner

BETWEEN

O.A.O.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE OFFICE OF THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

[2008] IEHC 217

[656 JR/2006]

THE HIGH COURT

Abstract:

Immigration - Asylum - Judicial review - Leave - Whether was permissible for a person who had not seen an applicant at interview to invoke s. 13 Refugee Act 1996 for a negative refugee determination - S. 13 Report - Segregation of role and contents of a report - Refugee Act 1996

: The applicant alleged that the procedure used where a statutory interview is conducted by one official and the analysis and recommendation was prepared by another was unfair. The applicant alleged that it was not permissible for a person who had not seen an applicant at interview to evoke s. 13(6) of the Refugee Act 1996, as amended.

Held by Birmingham J (ex tempore) that the assignment of responsibilities to different officials was possible pursuant to the Act of 1996. It would amount to a dramatic re-writing of statute to suggest that certain findings could be made by some officials and not others. There was no support for such a conclusion in the Act of 1996. The claim would be dismissed.

Reporter: E.F.

REFUGEE ACT 1996 S13(6)

TEN v MIN FOR JUSTICE UNREP SMYTH 31.10.2001

KONADU v MIN JUSTICE UNREP BIRMINGHAM 11.4.2008 EX TEMPORE

REFUGEE ACT 1996 S11B

EX TEMPORE JUDGMENT OF

MR. JUSTICE BIRMINGHAM

delivered on the 30th day of May 2008

1 In this case, leave to seek judicial review was granted by Feeney J. on 5^th December, 2007 on one ground only, namely whether it is permissible for a person who has not seen an applicant at interview to invoke section 13 (6) of the Refugee Act 1996 (as amended), which details the findings that are may be made by the Office of the Refugee Applications Commissioner ("ORAC"), which are included in a recommendation that the applicant should not be declared to be a refugee.

2 In essence, the case raises for consideration the situation that occurs periodically, when the statutory interview with asylum seekers is conducted by one official, with the analysis and recommendation being prepared by another official. On the basis of an affidavit, among the papers, of Ms Majella Donoghue, it appears that that situation arises in approximately ten percent of the time. That affidavit explans why such a situation will arise, by reference to a need for staff flexibility. It appears there is a significant turnover of staff and that combined with temporary absences for illness, maternity leave, the Commissioner takes the view that this situation is a requirement. This affidavit makes the point that this situation has, in part, contributed to the reduction of the backlog for the processing of applications from over two years to its current level of under six months. Clearly, the elimination of delays is in everybody's interest, not least those asylum seekers who will ultimately prove successful.

3 This is not the first occasion on which the courts have been asked to consider the assignment of responsibilities by ORAC. As far back as 2001, the issue was before Smyth J, in the case ofTEN v The Minister for Justice, Equality and Law Reform (unreported, High Court, Smyth J., 31^st October, 2001). Ironically, as it happens, the arguments that were being addressed to Smyth J. on that occasion were the reverse of those that are at issue now, in that what was being suggested to Smyth J. was that if all roles were performed by one official that the applicant was, in a sense, short-changed.

4 It may be said that this case at hearing today was at one stage linked with a case ofKonadu v The Minister for Justice, Equality and Law Reform (unreported ex tempore judgment, Birmingham J., High Court, 11^th April, 2008), a case which raised similar issues. However, when both cases appeared in a hearing list one after another early in April, the Konadu case was called on and this was deferred until after the outcome of Konadu was known. In the event, I gave judgment in Konadu, rejecting the challenge to the procedures adopted. It will be appreciated, therefore, that the granting of leave in this case by Feeney J. predated judgment in Konadu. Indeed, the written submissions by the applicant in this case were also prepared pre-Konadu and I gather that it may be the situation that the submissions before the Court today are, in fact, identical to those that were relied on by the applicant in Konadu.

5 In these circumstances, much of the debate today has focused on the applicant seeking to distinguish the present case from that that applied inKonadu. In that earlier case, it was not in dispute but it was expressly conceded on behalf of the applicant that the statutory procedure provided for by the Refugee Act 1996 does not, per se, preclude the possibility of different officials conducting the interview and preparing the report. Mr Ó Dúlacháin, S.C., has not demurred from that concession today.

6 Today, the emphasis of the argument centres on the fact that the ORAC report was prepared by a person who did not have face-to-face contact with the applicant. Because the official took the view that it was a case to which section 13 (6) applied, that it means that there will be no oral hearing of the appeal and instead the appeal will be determined on the documents. The point is made that the appeal will be on the documents, and the report at first instance will be prepared by someone other than the interviewer.

The Section 13 Report

7 In a situation where it is not in dispute that the segregation of roles is possible but what is in...