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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O. (F.O.) v. Office of the Refugee Application Commissioner & Anor [2002] IEHC 152 (3 October 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/152.html Cite as: [2002] IEHC 152 |
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THE HIGH COURT
(JUDICIAL REVIEW)
Record No. 795 JR/2001
Between/
F. O. O.
Applicant
-and-
THE OFFICE OF THE REFUGEE APPLICATIONS COMMISSIONER and THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
Respondents
JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON THURSDAY, THE 3RD DAY OF OCTOBER 2002
MR. JUSTICE SMYTH: The Applicant is a Nigerian national. He is a married man with a family. His family, in September 2001 (when he was interviewed), were living in Nigeria, but he was not sure of their exact location. He is originally from Lagos, but lived in Koligako in Kaduna State from 1984 to 2000. He is a Christian, a member of the Yoruba tribe and a printer by trade, although he spent some time working as a civil servant (having worked in the Ministry for Works and Housing); he has also a Masters Degree in Fine Arts from Lagos University.
At the Applicant's time of arrival at Rosslare on 26th/27th September 2000, when he made a claim for asylum, he submitted a false United Kingdom passport. He claimed he left Nigeria on 24th September 2000, after spending some two weeks with his parents in Lagos, and having left Nigeria he travelled to Ireland via Ghana and France — in neither would he appear to have claimed asylum.
Subsequent to completion of a questionnaire and the interview held on 3rd September 2001, a report of an authorised officer, one Kevin Duffy, was prepared. Subsequently, Mr. Duffy prepared a report of the results of his investigation and recommendations of the Refugee Applications Commissioner pursuant to Section 13(1) of the Refugee Act 1996 as amended (hereinafter referred to as the 'Act of 1996'). The conclusion reached on a consideration of the facts, country of origin information and the UNHCR Handbook was that the Applicant had not established a case as to qualify him for refugee status. The Applicant was advised of this decision by way of recommendation by letter dated 14th November 2001. The Applicant did not appeal that decision within the time specified (and insofar as the papers reveal/ not at all). Proceedings were issued on 26th November 2001.
The grounds upon which judicial review are sought are as follows:-
"A. The First-Named Respondent, servant or agent, interviewed the Applicant, considered the information and documentation in relation to the application for a declaration of refugee status, made findings in respect of the application, examined the Applicant's claim, made a report of the results of the investigation and recommendation, and proceeded to make a submission that the Applicant had not established a case such as to qualify him for refugee status and that a recommendation be forwarded to the Minister for Justice, Equality and Law Reform refusing to declare his refugee status; ultra vires the Refugee Act 1996 and 'nemo iudex in causa sua'."
In my judgment, the position concerning the provisions of Sections 11(2) and 13(1) of the Act of 1996 is that not only does the Act give the power which is challenged, the unreported judgment in Ten -v- The Minister for Justice, Equality and Law Reform (the High Court 31st October 2001) specifically deals with this issue in detail. The Applicant sought to rely on the case of Flanagan -v- University College Dublin [1988] IR 724 as authority on the maxim 'nemo iudex in causa sua' as part of his argument. It should be noted that in that case of alleged plagiarism by an examination student whom it was decided should be sent down from college for a year, Barron J (inter alia) held that the breach of academic discipline alleged was criminal in nature, that the Applicant should have received in writing details of the precise charge being made and specifically that the Registrar, as prosecutor in the case, ought not to have remained with the committee while it deliberated the fate of the Applicant. The case now before the court is most emphatically not criminal in nature. Furthermore, the issue has been determined by O Donovan J (when dealing with equivalent provisions under the Hope Hanlan Procedures) in AB-M -v- The Minister for Justice, Equality and Law Reform (unreported 23rd July 2001) .
"B. The Respondents failed and omitted to consider persecution by reason of religion suffered by the Applicant; ultra vires Section 2 of the Refugee Act 1996."
The primary question must always be that laid down by Article 1 (A) (2) of the 1951 Convention, viz whether there is a well-founded fear of the matters in respect of which the Convention provides protection (see Karanakaran -v- The Secretary of State for the Home Department [2000] Imm AR 271). Insofar as the standard of proof is required, it is sufficient if there is serious possibility or substantial grounds for thinking that persecution is likely to occur which is summarised as "a reasonable degree of likelihood" (per Lord Keith in Secretary of State for the Home Department -v- Sivakumaran & Ors [1988] AC 958. In my judgment, the adjudicator is obliged not only to take into account the stated subjective fear(s) of an Applicant, but he must also assess whatever objective evidence of risk is available. Having considered the evidence and documents before the court, I am satisfied that there was evidence upon which the view decision/recommendation) formed and impugned could have been arrived at. In my judgment, the question of acting ultra vires Section 2 of the Act of 1996 does not arise on the facts of this case.
"C. The Respondents wrongfully relied on the United Nations High Commissioner for Refugees Handbook as a source of law."
The decision makers clearly did not rely on the Handbook as a source of law, they clearly did expressly refer to the Handbook. In this case, I apply as relevant what was stated by McGuinness J in delivering the judgment of the Supreme Court in Z -v- The Minister for Justice, Equality and Law Reform of the [2002] ILRM 215 as follows:-
"It seems to me, however, that the guidelines contained in the Handbook are of relevance considering the arguments made by counsel on both sides."
Kelly J, in Camara -v- The Minister for Justice, Equality and Law Reform (unreported 26th July 2000), did not spurn to cite and refer to the provisions of the Handbook (see P. 9-12 of the typescript of his judgment). I find this ground to be unsustainable.
"D. The Respondents wrongfully took into consideration the fact that the Applicant's wife did not apply for refugee status to refuse him a declaration; ultra vires Section of the Refugee Act 1996, and the United Nations Convention on the Status of Refugees 1951, and the protocol thereto of 1967."
This clearly is not established by the evidence or any reasonable view of the evidence. What is stated about the Applicant's wife and his family are facts given by the Applicant. Nowhere is there any evidence that the wife was elsewhere than in Nigeria and it is inexplicable to advance this as a ground for claiming relief.
"E. The Respondents wrongfully relied on an assertion that the Applicant was required to avail of 'internal relocation'."
Lord Bingham CJ (as he then was, in Sivanentheran-v- Immigration Appeal Tribunal [1997] Imm AR 504, in referring to the Convention definition notes that "the definition in terms treats a country as a single entity and makes no express reference to any difference which may exist in conditions in one part of a country and another".
In this regard, I happily adopt the view taken by Finnegan J (as he then was) in Zgnat'ev -v- The Minister for Justice, Equality and Law Reform (unreported 29th March 2001) p. 4/ 5 of the typescript of that judgment:-
"Where an Applicant relies upon non-State persecution, the position is correctly stated in Horvath -v- The Secretary of State for the Home Department [2000] WLR 379 at 387, per Lord Hope, as follows:-
'I consider that the obligation to afford refugee status arises only if the person's own State is unable or unwilling to discharge its own duty to protect its own nationals. I think that it follows that in order to satisfy the fear test in a non-State agent case, the Applicant for refugee status must show that the persecution which he fears consists of acts of violence or ill treatment against which the State is unable or willing to provide protection. The Applicant may have a well-founded fear of threats to his life due to famine or civil war or of isolated acts of violence or ill treatment for a Convention reason, which may be perpetrated against him. But the risk, however severe, and the fear, however well founded, do not entitle him to the status of a refugee. The Convention has a more limited objective, the limits of which are identified by the list of Convention reasons and by the principle of surrogacy.'
Therefore, there are three possibilities:-
(1) the persecution is by the State;
(2) the persecution is by a non-State agency and the State is unable or unwilling to provide protection;
(3) the persecution is by a non-State agency and the State provides protection to its nationals by respecting the rule of law and it enforces its authority through the provision of a police force."
I am satisfied that (3) above applies in this regard and it is not for the court, guided by the principles applicable to judicial review, to super-impose its views over that of the decision maker who had facts upon which he came to the view he did, which he was entitled to do.
"F. (1) The Respondents failed to provide the Applicant with legal representations.
(2) The Respondents failed to provide an interpreter."
Concerning (1), Exhibit C to the affidavit of Martin O'Mahony, sworn on 11th March 2002, makes it clear that the Applicant was advised as to his entitlements — which he exercised as he saw fit. The Applicant sought to rely on the case of Kirwan -v- The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General [1994] 1 ILRM 444 as authority for this proposition, and in particular that passage of the judgment of Lardner J at p.450, which is to the following effect:-
"In my judgment, an Applicant who is without the requisite means to procure the collection of the relevant information and to formulate the appropriate submissions, with the information, to the Committee is necessarily, as a matter fairness, entitled to legal aid to enable him to do so."
That judgment is concerned with the provisions of the Trial of Lunatics Act 1883 (46 and 47 Vict C38) and Constitution of Ireland 1937, Articles 38.1, 40. Once again, this is to confuse the asylum and immigration process with criminal trials and criminal activity. In my judgment, the case is not in point.
Concerning (2), the reference to the entitlement or requirement for an interpreter is, in my view, a baseless ground to advance as the Applicant, on 26th September 2000, expressly stated that he was happy to be asked questions in English; in his ASY1 form he agreed that his language was English and he did not require a translator and signed a receipt for a copy of the interview notes on 3rd September 2001, that the requirement of an interpreter was "N/A";
ie, not applicable. Seeking to advance such a ground is spurious science.
"G. The Second-Named Respondent fails and omits to form an opinion as to the threat to the life or liberty of the Applicant should he be expelled from the State or returned in any manner to the frontier of territories where such a threat would exist; ultra vires the Refugee Act 1996, Section 5."
The obligation to form such an opinion only arises under Article 33 of the Convention (otherwise Section 5 of the Act of 1996) once the Minister has reached a decision to remove an Applicant. This is easily understood by considering a country or State where stability and internal security may fluctuate {and may be rapidly) — a decision based on facts at one stage of the asylum process may have no relevance or validity at another.
One matter not adverted to during the hearing is that in Q. 22 and Q.84 of the questionnaire the reference to the Applicant is to one son, whereas in the Section 11(2) report reference is made to two children. This factual error, on first consideration, may give rise to concern — the matter of law is dealt with by O'Donovan J in AB-M (earlier referred to in this judgment) at p. 5/6 of the transcript thereof, as follows:-
"While I accept the simple proposition as stated by Ms. Justice Carroll, in the State at the prosecution of Coras Iompair Eireann -v- An Bord Pleanala, that certiorari does not lie in respect of an error of fact, it is equally clear from that judgment that Ms. Justice Carroll recognised the possibility of a mistake of fact which is so basic that it deprives the adjudicator of jurisdiction to make an adjudication, in which event the decision is susceptible to review by way of judicial review. That recognition, whether or not Ms. Justice Carroll was aware of the decision at the time, seems to me to flow from the judgment of the Supreme Court given in the case of The State (Holland) -v- Kennedy [1997] IR 193, in which, in the course of the judgment of the court, Mr. Justice Henchy acknowledged that there may be any number of reasons why a court, or a tribunal, vested with powers of a judicial nature, might commence a hearing within jurisdiction but in the course thereof exceed that jurisdiction, thereby rendering its decision liable to review by way of judicial review. In this case, on the face of it, Mr. Eames had jurisdiction to make the recommendation which he made on 13th July 1999, and, on the face of it, Ms. Grealy had jurisdiction to give the decision which she gave on 30th July 1999, upholding that recommendation. However, the basis of that recommendation and for that decision was that the Applicant did not qualify for recognition as a refugee within the meaning of Section 2 of the Refugee Act 1996. In that regard, 'a refugee', within the meaning of that section, includes a person who, owing to a well-founded fear of being persecuted for one or more of the reasons detailed in that section, is outside the country of his or her nationality and is unable, or, owing to such fear, unwilling to avail himself or herself of the protection of that country. Accordingly, it is clear that the country of origin of an Applicant for refugee status is a vital factor when considering whether or not to recognise that status."
In the instant case, the error is not an error of the character determined by Mr. Justice O Donovan and is clearly distinguishable. Accordingly, it does not vitiate in any way the decision made which has been impugned in this case. For the foregoing reasons, I decline to grant leave to apply for judicial review.
END OF JUDGMENT