Vercevic v Minister for Justice and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Feeney |
| Judgment Date | 14 November 2006 |
| Neutral Citation | [2006] IEHC 365 |
| Docket Number | [No. 942 JR/2004] |
| Court | High Court |
| Date | 14 November 2006 |
[2006] IEHC 365
THE HIGH COURT
BETWEEN
AND
ROSTAS v REFUGEE APPEALS TRIBUNAL (HAYES) & ANOR UNREP GILLIGAN 31.7.2003 2003/46/11163
REFUGEE ACT 1996 S16(16)
K (G) & ORS v MIN JUSTICE & ORS 2002 2 IR 418 2002 1 ILRM 401
MUIA v REFUGEE APPEALS TRIBUNAL (O'GORMAN) UNREP CLARKE 11.11/2005 2005/40/8300 2005 IEHC 362
IVANISEVIC LEGACY OF WAR: MINORITY RETURNS IN THE BALKANS 2004 HUMAN RIGHTS WATCH WORLD REPORT (CROATIA)
IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HIGH COURT CLARKE 10.5.2005 2005 IEHC 150 2005/31/6357
Immigration - Asylum - Constitutional and natural justice - Refugee Appeals Tribunal - Fair procedures - Audi alteram partem - Whether tribunal considering relevant material - Whether tribunal breached rules of constitutional and natural justice
the applicant was granted leave to seek an order of certiorari quashing the refusal of the second respondent to grant the applicant asylum on the grounds that he had failed to consider all relevant material and had failed to consider oral evidence intended to be given by a witness on behalf of the applicant.
Held by Mr Justice Feeney in refusing the application that a body such as the Refugee Appeals Tribunal had to apply procedures that ensured constitutional justice. As there had been no refusal on the part of the respondent to allow a witness give evidence, there had been no breach of the audi alteram partem rule. Neither had the respondent failed to consider relevant material.
Reporter: P.C.
1.1 The Applicant is from Croatia and was born on the 6th May, 1961. She arrived in Ireland in February, 2001. She immediately applied on the 12th of that month for refugee status and duly completed the standard application. Her application was initially considered by the Refugee Applications Commissioner who recommended on the 20th February, 2002, that the Applicant should not be granted a declaration of refugee status. That was appealed by a notice of appeal dated the 9th April, 2002.
1.2 On the 23rd June, 2004, the second named Respondent, sitting as a member of the Refugee Appeals Tribunal, proceeded upon an oral hearing of the Applicant's appeal. There is a transcript of that oral hearing conducted on the 23rd June, 2004. At that oral hearing the Applicant was represented by both solicitor and counsel. The Applicant was questioned by her own counsel and also by the presenting officer and at the conclusion of that questioning the Applicant's counsel was provided with and availed of an opportunity to make submissions. The submissions made by counsel on behalf of the Applicant highlighted that it was the Applicant's claim that there was no effective State protection particularly in the enclave or area which was home to the Applicant. In the course of those oral submissions it was requested that the Applicant's lawyers might provide the Tribunal with an overall submission framed on the issue of State protection and the approach which the Tribunal should adopt in assessing country of origin information and it was expressly stated (at p. 26 of the transcript) that the member of the Refugee Appeals Tribunal conducting the hearing "would go through all the materials that have been submitted". The presenting officer was then given an opportunity to make a submission and the hearing concluded.
1.3 By letter dated the 14th July, the Applicant's solicitors forwarded written submissions together with four country of origin documents namely a UNHCR field survey dated January, 2001, a Human Rights Watch report, on the Balkans of 2004, a Human Rights Watch briefing paper of 13th May, 2004 and a US Department of State report on Croatia dated the 25th February, 2004. Also forwarded with that letter were two positive recommendations in respect of two refugee Applicants namely a Mr. Ruzic and a Ms. Ognjenovic who both came from the same area as the Applicant and whom it was contended had succeeded based upon similar facts to the facts in the Applicant's claim.
1.4 A decision was duly made by the member of the Refugee Appeals Tribunal in relation to the application which was dated the 29th September, 2004. The member determined that the appeal should be dismissed and affirmed the original recommendation of the Refugee Applications Commissioner. The decision to refuse the appeal was notified to the Applicant by letter dated the 5th October, 2004 and the Applicant duly applied for relief by way of judicial review in respect of the decision of the Refugee Appeals Tribunal dated the 29th September, 2004. The Applicant was granted leave to seek an order of certiorari quashing the decision of the 29th September, 2004, together with a declaration that such a decision was arrived at in breach of the principles of natural and constitutional justice and for a consequential order remitting the Applicant's asylum claim for rehearing together with any directions that might be made in relation to the correct test to be applied in considering applications for refugee status as the court may seem just or appropriate.
1.5 The Applicant was granted relief to seek judicial review on two specified grounds namely;
The second Respondent in the course of the Applicant's oral hearing of her appeal against the recommendation of the Refugee Applications Commissioner refused and/or failed to allow the Applicant to call a witness, namely Svetlana Pavlovic whom she wished to give relevant evidence on her behalf. Accordingly, the second Respondent failed to adhere to the principles ofaudi alteram partem and thereby breached the Applicant's right to have her appeal dealt with according to the tenets of natural and constitutional justice.
The second Respondent in his decision of the 29th of September, 2004, failed to consider all relevant material, more specifically the positive recommendations of the Refugee Applications Commissioner in the cases of Zoran Ruzic, RAC Reference 69/24558/01A and Dobrila Ognjenovic RAC Reference 69/32272/01B which were tendered by the Applicant to the second named Respondent in the course of the said oral hearing in support of her application for asylum. The second Respondent also failed to consider the written submissions submitted by the Applicant subsequent to the said oral hearing and which the Applicant was given leave to submit subsequent to the said oral hearing. Accordingly, the second Respondent failed to adhere to the principles ofaudi alteram partem and thereby breached the Applicant's right to have her appeal dealt with according to the tenets of natural and constitutional justice.
2.1 It is in respect of those two grounds that this court must consider whether or not the Applicant is entitled to judicial review.
2.2 The first ground relied upon is that it is claimed that during the course of the Applicant's oral hearing before the second member Respondent that the second named Respondent refused and/or failed to allow the Applicant to call a witness, namely, Svetlana Pavlovic whom it was claimed wished to give relevant evidence on the Applicant's behalf and that as a result of such refusal and/or failure there was a failure on the part of the second named Respondent, to adhere to the principles of audi alteram partem.
2.3 It is clear that a body such as the Refugee Appeals Tribunal must apply procedures that ensure constitutional justice. The audi alteram partem principle encompasses two concepts, firstly, that a person affected by a decision must have due notice and secondly, that such person must be allowed appropriate facilities to make the best possible case in reply. It is the alleged failure to allow the Applicant to make the best possible case in reply by failing to allow Svetlana Pavlovic be called as a witness which is claimed amounts to a breach of the principles of audi alteram partem.
2.4 The factual position in relation to this...
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