A.Z. v Refugee Applications Commissioner and Another

• Jurisdiction: Ireland
• Judge: Mr Justice Brian McGovern
• Judgment Date: 06 February 2008
• Neutral Citation: [2008] IEHC 36
• Docket Number: [No.66 J.R./2006]
• Court: High Court
• Date: 06 February 2008

[2008] IEHC 36

THE HIGH COURT

[No.66 J.R./2006]

Z (A) v Refugee Applications Commissioner & Min For Justice

JUDICIAL REVIEW

BETWEEN

A.Z.

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S13(1)

STEFAN v MIN JUSTICE 2001 4 IR 203

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORPORATION 1984 IR 381

MCGOLDRICK v AN BORD PLEANALA 1997 1 IR 497

BUCKLEY v KIRBY 2000 3 IR 431 2001 2 ILRM 395

IMMIGRATION

Asylum

Judicial review - Fair procedures - Purported errors of fact in first instance decision - Appeal lodged - Whether errors within jurisdiction - Whether appeal appropriate remedy - Whether purported errors of fact capable of being cured on appeal - McGoldrick v An Bord Pleanala [1997] 1 IR 497 applied; State (Abbeyglen Properties) v Corporation of Dublin [1984] IR 381 and Buckley v Kirby [2000] 3 IR 431 considered; Stefan v Minister for Justice, Equality and Law Reform [2001] 4 IR 203 distinguished - Refugee Act 1996 (No 17), s 13 - Relief refused (2006/66JR - McGovern J - 6/2/2008) [2008] IEHC 36

Z(A) v Refugee Applications Commissioner

JUDGMENT OF

Mr Justice Brian McGovern

delivered on the 6th day of February, 2008

1 This is an application for leave to apply for judicial review for an order ofcertiorari quashing the recommendation of the 20th December, 2005, made by the first named respondent that the applicant not be declared a refugee and for other ancillary relief.

2 1. The applicant is an Iranian citizen and is of Kurdish ethnicity. He claims to have fled Iran owing to ethnic and political persecution as a result of his support of the "Komala" political party. He says that he was involved in an antigovernment demonstration in a town called Piranshahir and that the security forces intervened in a robust manner to break up the demonstration. While fleeing, he claims to have fallen in a laneway and the next thing he remembers is waking up in hospital where he says he was being treated for a leg injury. He was in hospital for four days and while there claims that he spoke to a stranger and asked him to contact his family since he was apprehensive that the security forces were looking for him. He was aware that his photograph had been taken at the demonstration and that others had been arrested. His uncle managed to get him out of the hospital and he spent some time in hiding and eventually came to Ireland.

3 2. The applicant applied for asylum in the State on the 5th September, 2005 and completed a written questionnaire on the 12th September, 2005. He was interviewed by an authorised officer of the first named respondent on the 29th November, 2005. Following the interview, the Refugee Applications Commissioner prepared a report pursuant to section 13 (1) of the Refugee Act,1996 (as amended). The Refugee Appeals Tribunal (RAT) made certain findings, calling into question the credibility of the applicant and held that the applicant had failed to establish a well founded fear of persecution, both on an objective and subjective level. Accordingly, the first named respondent refused the applicant's application for asylum. The applicant had lodged an appeal to the RAT around the same time as he commenced this application for judicial review. The respondents argued that there was an alternative remedy available to the applicant, namely, an appeal to the RAT and for that reason the court should exercise its discretion against granting leave to apply for judicial review. The Supreme Court has held that the presence of a pending appeal is not a bar to the court exercising its discretion to grant a judicial review. It is a factor to be considered. (See Stefan v. Minister for Justice, Equality and Law Reform, and Others [2001] 4 I.R. 203 and The State (Abenglen Properties) v. Corporation of Dublin [1984] I.R. 381. In the Abenglen case, Henchy J. held that where an inferior court or Tribunal makes an error within jurisdiction and without recording that error on the face of the record, certiorari does not lie. It is only when there is some extra flaw, such as the court or Tribunal acting in disregard of the requirements of natural justice, that certiorari will issue. If there is a statutory procedure for the correction of error in a court or a Tribunal and that procedure is adequate or more suitable to meet the complaints made by the applicant, then certiorari will not be granted. In McGoldrick v. An Bord Pleanála [1997] 1 I.R. 497 at p.509 Barron J. stated "the real question to be determined where an appeal lies is the relative merits of an appeal as against granting relief by way of judicial review. It is not just a question whether an alternative remedy exists or whether the applicant has taken steps to pursue such remedy. The true question is which is the more appropriate remedy considered in the context of common sense, the ability to deal with the questions raised and principles of fairness; provided, of course, that the applicant has not gone too far down one road to be estopped from changing his or her mind. Analysis of the authorities referred to shows that this is in effect the real consideration". This view was adopted by Geoghegan J. in Buckley v. Kirby [2000] 3 I. R. 431.

4 3. In the statement of grounds, the applicant complains that the first named respondent based the rejection of his claim primarily on the grounds of his credibility and that in so doing the first named respondent was in error. He alleges that the first named respondent was in error in impugning the applicant's credibility on the basis of information given by him about the "Komala" party in Iran. The application for judicial review was made on the 19th January, 2006 and it is conceded by Mr Moore on behalf of the respondents that it was made within time. In the course of the hearing, counsel for the applicant complained of the fact that the first named respondent confused the "Komala" party with the "Komalah" party which meant that the basis of the RAC decision was flawed. Counsel argued that they are two separate and distinct parties.

5 4. The first time that this point was raised was in an affidavit of the applicant sworn on the 9th day of June, 2007. It did not form one of the grounds on which the...