A.v.P. (Sierra Leone) v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Robert Eagar
• Judgment Date: 21 May 2015
• Neutral Citation: [2015] IEHC 328
• Court: High Court
• Date: 21 May 2015

[2015] IEHC 328

THE HIGH COURT

[No. 1037 J.R./2011]

P (AV) [Sierra Leone] v Refugee Appeals Tribunal & Ors

BETWEEN

A.V.P. (SIERRA LEONE)

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE AND EQUALITY,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Asylum – Immigration & Nationality – Refugee Appeals Tribunal – Refusal of asylum claim – Violation of the right of effective remedy provided under art. 39 of Council Directive

Facts: The applicant sought an order of certiorari challenging the decision of the first named respondent affirming the negative recommendation of the Refugee Applications Commissioner on the applicant's asylum claim. The applicant contended that there was a violation of right of effective remedy under art. 39 of Council Directive 2005/85/EC of December 1, 2005 read in conjunction with recital 27 and art. 267 TFEU with reference to art. 47 of the Charter of Fundamental Rights of the European Union.

Mr. Justice Robert Eagar refused to grant an order of certiorari to the applicant. The Court held that the ruling in ‘ H.I.D & B.A. v Refugee Applications Commissioner & ors applied in the case wherein the European Court of Justice held that the Refugee Appeals Tribunal is a competent authority and independent in its operation. The Court of Justice observed that art. 39 of Council Directive 2005/85 do not preclude the applicant to lodge an appeal against the decision of the Tribunal to a higher authority and subsequently to the Court of Appeals.

1 1. This is a challenge to the decision of the Refugee Appeals Tribunal to affirm the negative recommendation of the Refugee Applications Commissioner on the applicant's asylum application.

2 2. The decision of the Refugee Appeals Tribunal was dated the 4 ^th October, 2011 and these proceedings were commenced by way of notice of motion dated the 26 ^th Octobe,r 2011.

3 3. The only ground in the statement grounding the application for judicial review that is argued by the applicant is that of ground 5(3):-

"The effective remedy required by the provisions of Article 39 of Council Directive 205/85/EC of the 1 ^st December 2005 read in conjunction with Recital 27 and Article 267 TFEU (and with reference to Article 47 of the Charter of Fundamental Rights of the European Union) is not provided by the first named Respondent as one or more of the following may apply:-"

3. The fact that the decision-making members of the first named Respondent body are appointed by the second named Respondent and further serve on a part-time basis and further are remunerated on a case by case basis."

4 4. Both the applicant and the respondent provided written submissions and also this Court has listened to the oral submissions of counsel for both sides. The case is made by the applicant on a question raised by way of preliminary reference by Cooke J. to the Court of Justice in the proceedings H.I.D. & B & A v. Refugee Applications Commissioner & Ors, Judicial Reviews 2008 1261 JR.

5 5. The applicant has limited his ground to ground (3) of the statement grounding application for judicial review and argues that the effective remedy required by the provisions of Article 39 of the Council Directive 2005/85/EC of December 2009 read in conjunction with Recital 27 and Article 267 TFEU (and with reference to Article 47 of the Charters of the Fundamental Rights of the European Union) is provided by the first named respondent as the fact the decision-making members of the first named body are appointed by the second named respondent and further served on a part-time basis and further are remunerated on a case by case basis.

6 6. The applicant argues that the fact that the decision making members of the Tribunal are appointed by the Minister for Justice and Equality (hereinafter referred to as "the Minister") and serve on a part time basis for a period of three years and are remunerated on a case by case basis in circumstances where the Court of Justice determined that the Refugee Appeals Tribunal was either a Court or a Tribunal is a breach of the principles reflected in the United Nations Basic Principles for the Independence of the Judiciary.

7 7. Counsel for the applicant argues that this was a matter which was not dealt with by the European Court of Justice in its decision in H.I.D & B.A. v. Refugee Applications Commissioner & Ors. Counsel on behalf of the respondent argues that the European Court of Justice in its decision comprehensively dealt with the issues raised in these cases and points to the decisions of Cooke J. both prior to and after the European Court judgment which was given by the European Court on the 31 ^st January 2013.

8 8. The European Court of Justice gave its judgment on the request for a preliminary ruling concerning the interpretation of Articles 23 and 39 of the Council Directive 2005/85/EC of the 1 ^st December 2005 on minimum standards in procedures in Member States for granting and withdrawing refugee status.

9 9. In its judgment the European Court of Justice examined the asylum procedure in Ireland. Paragraphs 22 and 23 deal with the role of the Refugee Applications Commissioner and paragraph 25 deals with the...