VU v Refugee Applications Commissioner
| Jurisdiction | Ireland |
| Judge | Gilligan J. |
| Judgment Date | 29 April 2005 |
| Neutral Citation | [2005] IEHC 146 |
| Court | High Court |
| Docket Number | [2003 No. 607 J.R.] |
| Date | 29 April 2005 |
BETWEEN
[2005] IEHC 146
THE HIGH COURT
IMMIGRATION
Asylum
Fair procedures - Failure by respondent todisclose material upon which decision based- Whether applicant deprived of right tomake submissions - Refugee Act 1996 (No17), s 11 - Certiorari granted (2003/607JR -Gilligan J 29/4/2005) [2005] IEHC 146, [2005] 2 IR 537
U (V) v Refugee Applications Commissioner
Facts: The applicant, who was a Lithuanian National unsuccessfully applied to the first named respondent (RAC) for a declaration of refugee status. The applicant sought and was granted leave to apply by way of an application for judicial review for a number of reliefs, including an order of certiorari quashing the decision of the RAC refusing him refugee status and the reports and recommendation of the RAC and also an order of mandamus remitting his application for refugee status for an investigation by the RAC in accordance with the directions of this court. The applicant submitted that he was denied the right to fair procedures and the right to make representations due to a failure to disclose to him relevant information which was relied upon by the RAC in considering the applicant's application for a declaration of refugee status and was referred to by him in the reports under sections 11 and 13 of the Refugee Act, 1996.
Held by Gilligan J. in granting the applicant the reliefs sought: That in omitting to furnish the applicant with material that was relied on by the RAC in his recommendation, section 11(6) of the Refugee Act, 1996 was not complied with and therefore the applicant lost his statutory right to make relevant submissions under section 11(3).
Reporter: L.O'S.
REFUGEE ACT 1996 S11
REFUGEE ACT 1996 S11(3)
REFUGEE ACT 1996 S13
REFUGEE ACT 1996 S13(1)
REFUGEE ACT 1996 S11(2)
REFUGEE ACT 1996 S17(1)(B)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)
ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122
STATE (WILLIAMS) v ARMY PENSIONS BOARD & MIN FOR DEFENCE 1983 IR 308 1983 ILRM 331
REFUGEE ACT 1996 S28(a)
IMMIGRATION ACT 2003 S7
S (EM) v MIN FOR JUSTICE 2004 1 IR 536 2005 1 ILRM 73 2004/45/10292
REFUGEE ACT 1996 S17(7)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)(K)
ZAMBRA v JUDGE MCNULTY & DPP 2002 2 IR 351 2002 2 ILRM 506 2002/29/7575
REFUGEE ACT 1996 S11(6)
REFUGEE BILL 1995 EXPLANATORY MEMORANDUM
REFUGEE ACT 1996 S11(7)
REFUGEE ACT 1996 S11(8)
JUDGMENT of Gilligan J. delivered on the 29th day of April, 2005 .
The applicant is a Lithuanian National who entered the State and applied for a declaration of refugee status on 16th August, 2002. The applicant made an application to the Refugee Applications Commissioner, and completed a questionnaire. On 27th May 2003 he attended for interview in accordance with the procedure under section 11 of the Refugee Act 1996.
The applicant was advised by letter prior to his interview that he was entitled to submit any documentary evidence or other information prior to the interview, at the interview, or within 7 working days of the interview. He was also advised that he was entitled to seek legal advice and was provided with an information leaflet in relation to the Refugee Legal Service. The applicant was advised that any information provided by him would remain confidential and the duty to co-operate and importance of all information being truthful were reiterated.
The letter also stated that -
"following the interview, a report of your application will be made by the authorised officer who interviewed you. The report may draw on generally available information about your country of origin and any other information considered relevant. You will be provided with copies of all information taken into consideration in this case."
The applicant did not make any submissions within the seven working days provided by section 11(3) of the Refugee Act 1996.
The Refugee Applications Commissioner notified the applicant by letter dated 17th July 2003 that the recommendation of the Commissioner was that the applicant not be declared to be a refugee. The Commissioner provided the applicant with copies of the reports drawn up under sections 11 and 13 of the Refugee Act 1996. In this case, the country of origin information, the subject of these proceedings, was relied on in the section 13 report, but not in the section11 report. The applicant was advised of his right to appeal.
The applicant was granted leave by this court (Kearns J.) on the 1st day of April, 2004, to apply by way of an application for judicial review for the following reliefs;
(a) A declaration that the decision of the first named respondent of 17th July,
2003, to deny the applicant refugee status and the recommendation of the first named respondent of 30th June, 2003, are ultra vires and without efficacy.
(b) A declaration that the investigation report and recommendation and decision of the first named respondent of 30th June, 2003, were carried out, conducted and concluded in infringement of the applicant's constitutional right to fair procedures and natural justice.
(c) An order of certiorari quashing the decision of the first named respondent of 17th July, 2003, refusing the applicant refugee status and the reports and recommendation of the respondent of 30th June, 2003, pursuant to s. 13(1) and s. 11(2), Refugee Act, 1996.
(d) An order of mandamus remitting the applicant's application for refugee status for an investigation by the first named respondent in accordance with the directions of this court.
(e) An injunction restraining the second named respondent from taking any steps pursuant to s. 17(1)(b) of the Refugee Act, 1996, to affirm the decision to deny the applicant refugee status and/or make a proposal to deport and/or to deport the applicant.
(f) Further and other relief including if necessary an extension of time for the making of this application pursuant to s. 5(2)(a), Illegal Immigrants (Trafficking) Act, 2000.
(g) Costs, V.A.T and interest as made and provided for.
On the following grounds û
(i) The applicant was denied in breach of his constitutional rights and the principles of natural justice and fair procedures and in breach of statutory duty of the first named respondents an opportunity to consider address and/or rebut material and information obtained, considered and relied upon by the authorised officer including in particular country of origin information obtained in the course of the investigation and referred to and relied upon by the authorised officer in the report and results of the investigation under s. 13(1), Refugee Act, 1996. The authorised officer relied upon extracts from county of origin reports in relation to the availability of State protection against breaches of human rights in the report pursuant to s. 13(1) to justify his conclusion that there would have been redress or State protection available to the applicant against the difficulties he experienced within the State Security Department in Lithuania. By reason of a failure of the authorised officer to disclose this material and country of origin information to the applicant until after the completion of the investigation the applicant was denied the right to make representations in relation to same and/or address the contents thereof and/or rebut same by way of submissions in relation to the country of origin information relied upon and/or by way of presentation of county of origin information or otherwise.
(ii) The applicant has the right and entitlement pursuant to s. 11(3), Refugee Act, 1996, to make representations in writing to the first named respondent in relation to any matter relevant to the investigation of his application and the first named respondent shall take account of any such representations. Failure by the authorised officer of the first named respondent to disclose to the applicant matters material and information relevant to the investigation at any stage during the investigation has denied the applicant his statutory right to make representations in connection with same. The applicant was not in a position to make representations concerning matters of which he was not aware and had not been made aware.
The applicant is claiming that he was entitled to have been provided with the country of origin documents relied upon by the Commissioner in the s. 13 report prior to making such report, and/or prior to the making of the s. 11 report. It is alleged that this amounts to a breach of fair procedures, natural and constitutional justice and/or breach of statutory duty. It is further alleged that the applicant was denied his right to make representations to the Commissioner under s. 11(3).
The applicant claims that he was denied the right to fair procedures and the right to make representations due to a failure to disclose to him relevant information which was relied upon by the Commissioner.
The applicant submitted that he was denied an opportunity to consider, address and/or rebut material and information obtained and considered and relied upon by the Commissioner including country of origin information obtained in the course of the investigation and referred to by the Commissioner in the reports under section 11 and section 13.
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