Xiao v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 02 June 2005
• Neutral Citation: [2005] IEHC 167
• Court: High Court
• Docket Number: [Record No. 2005/15JR]
• Date: 02 June 2005

[2005] IEHC 167

THE HIGH COURT

[Record No. 2005/15JR]

X (J) v Refugee Appeals Tribunal

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT, 1996 AND

THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000 AND

THE IMMIGRATION ACT, 1999

BETWEEN

JIAN XIAO

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL (TRIBUNAL MEMBER MICHELLE O'GORMAN) AND MINISTER FOR EQUALITY JUSTICE AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S13(1)

IMMIGRATION ACT 1999

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION)

REFUGEE ACT 1996 13(6)

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S11(A)(3)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

R v SECRETARY OF STATE OF THE HOME DEPT, EX PARTE SIVAKUMARAN 1988 1 AER 193 1988 AC 958 1988 2 WLR 92

KARANAKARAN v SECRETARY OF STATE FOR THE HOME DEPT 2000 3 AER 449

ROSTAS v REFUGEE APPEALS TRIBUNAL (HAYES) & MIN FOR JUSTICE UNREP GILLIGAN 31.7.2003 2003/46/11163

HATHAWAY THE LAW OF REFUGEE STATUS 1991 74

SHAH v INF 15.8.2000 US 9TH CIRCUIT COURT APPEAL

T (AM) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2004 2 IR 607 2004/49/11175 2004 IEHC 219

CAMARA v MIN FOR JUSTICE & ORS UNREP KELLY 26.7.2000 2000/4/1247

GOODWIN-GILL THE REFUGEE IN INTERNATIONAL LAW 2ED 1996 349

CARCIU v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP FINLAY-GEOGHEGAN 4.7.2003 2003/8/1638

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL (HURLEY) & MIN FOR JUSTICE UNREP PEART 9.7.2004 2005/15/3102 2004 IEHC 436

K (N) v REFUGEE APPEALS TRIBUNAL & ORS 2005 4 IR 321 2004 2 ILRM 550 2004/26/6170 2004 IEHC 240

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 37

REFUGEE ACT 1996 S11(A)(1)(B)

REFUGEE ACT 1996 S11(B)

REFUGEE ACT 1996 S16(16)

IMMIGRATION AND ASYLUM

Asylum

Credibility - Irrationality - Delay - Well-founded fear of persecution - Refugee Act 1996 (No 17) - Leave to take judicial review refused - (2005/15JR - Dunne J - 2/06/2005) [2005] IEHC 167

X (J) v Refugee Appeals Tribunal

This was an application for judicial review to which the provisions of s. 5 of the Illegal Immigrants (Trafficking) Act 2000 applied. The applicant sought a declaration that a decision of the RAT was ultra vires and without efficacy and was reached in infringement of the applicant’s right to constitutional and natural justice and fair procedures.

Held by Dunne J. in refusing the application for leave to apply for relief by way of judicial review that the applicant had not made out a case for leave. The applicant had not shown that there were substantial grounds.

Reporter: R.W.

Ms. Justice Dunne

1 The applicant in these proceedings seeks a declaration that a decision of 7th December, 2004 of the first named respondent and the recommendation of the Tribunal Member of 29th November, 2004 areultra vires and without efficacy and were reached in infringement of the applicant's right to constitutional and natural justice and fair procedures. The applicant also seeks an injunction restraining the second named respondent from taking any steps to affirm the decision to deny the applicant refugee status and/or to make a proposal to deport the applicant. Further an order is sought directing that the applicant's claim for refugee status be reheard and finally an order of certiorari is sought quashing the decision of the first named respondent of 7th December, 2004 and the recommendation of the Tribunal Member of 29th November, 2004 refusing the applicant a declaration of refugee status.

2 The grounding affidavit of the applicant herein was sworn on 10th January, 2005. In the grounding affidavit the applicant sets out details in relation to his background and he sets out the circumstances in which he applied for a declaration of refugee status together with an account of the proceedings in the Office of the Refugee Applications Commissioner (hereinafter referred to as "ORAC") and the Refugee Appeals Tribunal. The applicant states that he is a national of China. He arrived in the State in 1995 having previously been in the United Kingdom where he had also applied for asylum. He left China in May of 1993 owing to his fear of persecution for political reasons. He applied for a declaration of refugee status in this State on 17th August, 2004 and completed the usual questionnaire on 18th August, 2004. During the time he has been in Ireland he has worked at various jobs in the restaurant trade without a work permit save for a period between 15th July, 2002 to 14th July, 2003 when a work permit was obtained for him by his then employers.

3 He stated that his reason for a fear of persecution is that a cousin of his attended the June 4th democracy movement protest in Tianamen Square, Beijing and was killed. He became involved in supporting the democracy movement and he did this by printing leaflets and documentation about the events that occurred and making them available. His wife was subjected to harassment and detention and other family members were placed under surveillance because of his activities. One of his colleagues in the democracy movement had been executed and another had been sentenced to thirteen years imprisonment and he fears that if returned he would be subjected at a minimum to ten years imprisonment. These matters are expanded upon in a statement prepared by the applicant which was before ORAC and in the interview which took place between the applicant and the authorised officer of ORAC together with the questionnaire completed by the applicant in the course of his application for refugee status.

4 One of the more unusual matters referred to by the applicant in his affidavit was his account of how he had been subjected to kidnappings whilst in the UK and Ireland. He described how he suffered a lot when he had been kidnapped in England and that he had undergone a more serious experience there than that which occurred in Ireland.

5 He also explained the circumstances in which he had obtained a passport before leaving China. According to him he obtained a passport when someone else applied for it on his behalf but he indicates that he is unable to say whether the same is real or fake. At this stage he no longer has the passport but he has indicated that a copy of it may be available in the office where he looked for a provisional driving licence.

6 Having referred to the background, the applicant in his affidavit goes on to deal with the various decisions made in respect of his application. First of all he refers to the letter of 19th October, 2004 together with copies of the reports in respect of the investigation and the recommendation in respect of his application by which he was notified of the decision of ORAC to refuse his application for refugee status Because the report pursuant to s. 13(1) contained a finding that he had failed without reasonable cause to make an application for asylum as soon as reasonably practicable and that he had lodged a prior application for asylum in another State Party to the Geneva Convention, he was advised that any appeal against the decision would be based on documents only. He then referred to the notice of appeal together with grounds of appeal, submissions, country of origin information and a covering letter dated 2nd November, 2004 which were lodged with his notice of appeal. Subsequently by letter of 7th December, 2004 he received notification of the decision of the Refugee Appeals Tribunal to refuse his appeal and together with that letter was a copy of the decision of the Tribunal Member who considered the appeal on 29th November, 2004.

7 The applicant then analyses the decision of the Tribunal Member and makes a number of observations (indeed one might say submissions) in relation to the decision. First, the applicant argues that the Tribunal Member had made no negative finding of credibility regarding the experiences of the applicant in his country of origin giving rise to his fear of persecution and that she appears to have accepted his account of his political involvement, activity and experiences of himself and his family arising from same. He complains that the Tribunal Member has failed to carry out any assessment of the applicant's claim with regard to his fear of persecution for political reasons and has confined her considerations solely to the issue of delay in claiming asylum, his having made a prior application for asylum in the UK and his having obtained a passport from the Chinese authorities.

8 He then goes on to deal with information, documents and material placed before the Tribunal Member regarding ongoing and current political oppression and human rights abuse in China. He refers to an Amnesty International report of 2004. He refers to a further report from Amnesty International in relation to the failure of the Chinese authorities to institute any form of public inquiry into events surrounding the Beijing protests of 1989. Having referred to these matters he complains that the decision of the Tribunal Member fails to have regard for and to consider the information referred to above and that no assessment of persecutory risk is evident from the decision.

9 He then states that he has been advised by his advisors that the primary function of an adjudicator in an asylum claim is to assess persecutory risk having regard to all the circumstances as they now pertain or prevail. He then referred to the principle relating to the adjudication of refugee claims and to UNHCR criteria, guidelines and procedures in this regard which place an obligation on an adjudicator to consider all elements and aspects of an applicant's fear of persecution and the reasons for it and give weight to all elements and strands of the claim advanced. This obligation arises even where an adjudicator entertains some doubt as to the likelihood or chance of certain events having occurred. He concedes that his delay in claiming asylum is a...