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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O. (I.) v. Refugee Appeals Tribunal & Ors [2002] IEHC 159 (4 October 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/159.html Cite as: [2002] IEHC 159 |
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THE HIGH COURT
(JUDICIAL REVIEW)
Record No.310JR/2002
Between/
I. O.
Applicant
-and-
THE REFUGEE APPEALS TRIBUNAL (MICHELLE O'GORMAN)
and THE REFUGEE APPLICATIONS COMMISSIONER
and THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
Respondents
JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON FRIDAY, THE 4TH DAY OF OCTOBER 2002
MR. JUSTICE SMYTH: The Applicant is a Nigerian national whose stated date of birth is 30th December 1982, and was a member of the Igbo people or tribe, a single male person of Christian belief who had primary school education from 1988 to 1993, and whose work experience was in farming and trading in which occupation his employer was his parents. He had a twin brother with whom he worked with both in farming and trading, but he stated his brother was killed by the Hausa, who are generally of Muslim belief; the killing occurred in Kaduna. He was not a member of any political organisation or trade union. He had 25,000 Niara from trading at his disposal of which he stated he paid 20,000 Niara to a person of undisclosed name to take him from Kano to Lagos, where he was put on a ship as a stowaway on 20th February 2000. He was aware that en route the ship made one stop but was unable to identify the port of call.
It would appear that the event which caused the Applicant to leave his country of origin took place early in the year 2000 -- he has given two different dates for this event — when a band of Hausa came into the marketplace where the Applicant, his family and a number of persons of the Igbo tribe were carrying on their business. The Hausa apparently own the market but the Igbo own the stalls. The Hausa, it would appear, ransacked the stalls in the marketplace — the scene seems to have been one of pillage, plunder, burning, murder and general mayhem. This inter-tribal conduct did not confine itself to one location; it appears to have taken place not only in Kaduna but also in Kano. It was on the road between these locations, as the Applicant and his brother were seeking their parents, that they encountered Hausas who were still about their warfare — the brothers sought to help, it would appear, fellow tribespersons when the brother was killed and the Applicant fled the scene. While accepting that the foregoing is a precis of what was stated in the Questionnaire, an account which is different emerged in he refinements at interview, as is recorded in the Section 13(1) report dated 20th July 2001, signed by Mr. Mee.
The Applicant arrived in the State on 16th March 2000, and on 20th March 2000 he presented himself as an applicant for refugee status: at this time it was clearly appreciated that the Applicant was a minor and the Eastern Health Board were so notified. It was then established (and confirmed a few days later, to wit 25th March 2000) that he could conduct his affairs in English. There was a discrepancy in the documents at that stage as to how much had been paid to the "travel facilitator". In the ASY1 form, the reason given for seeking asylum is "religion". The Applicant was given a number of documents on 20th March, of which he acknowledged receipt.
By letter dated 19th June2001, the Applicant was invited to attend for interview on 6th July 2001 -- by which date the Applicant would have been eighteen and a half years of age and no longer a minor and in Ireland for over one year at an address — which I know from other cases which have been before the court — to be one in which asylum applicants have been accommodated.
One of the complaints made with great skill and force by Mr. Woolfson, for the Applicant, was that the interview was not carried out in accordance with 'Training Module1995 RLD4 on Interviewing Applicants for Refugee Status, exhibited as 'IO4'. While the cover of this document bears the legend in parenthesis, the content is an extract from p.46 to p.51 of the UNHCR Handbook of January 1992. In due course, subsequent to the interview, a report under Section 11 (2) and a report of the investigation and recommendation on the Applicant's application was prepared under Section 13(1) of the Refugee Act (as amended) (hereinafter referred to as 'the Act of 1996'), by Mr. John Mee. His report is dated, as earlier noted, as 20th July 2001. Mr. Mee came to the conclusion that the Applicant had not established a case such as to qualify him for refugee status as defined in Section 2 of the Act of 1996.
The Applicant was informed by letter dated 2nd October 2001 of the conclusions arrived at by the Refugee Applications Commissioner (in this judgment referred to as 'the Commissioner'). That determination was not challenged either within the time limit under Section 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2002 or order 84 of the Rules of the Superior Courts. Furthermore, the Applicant elected to invoke and proceeded with an appeal (as was his right) to the Refugee Appeals Tribunal (in this judgment referred to as 'the Tribunal'). As the decision of the Commissioner may merge in that of the Tribunal (GK and Ors -v- The Minister for Justice, Equality and Law Reform (Supreme Court unreported 6th March 2002), the relevant decision to now be considered is that of the Tribunal.
Unlike the case of Stefan -v- The Minister for Justice, Equality and Law Reform [2002] ILRM, 134 where the first instance decision was challenged before the oral hearing of the appeal took place and any decision on appeal was made, that point was well passed before it was decided in this case to test the first instant decision by way of application for judicial review.
In this case, it is equally clear that the credibility issue did not in any way relate to what is said to be a matter of omission from the record of the interview; ie, the first question appearing on page 8 of the interview notes about the Applicant 'stating earlier that he went to the hospital to see his parents', the Applicant was given he opportunity and did explain the position about his parents and the hospital. I determine as a matter of fact and of law that no relief be granted against the Commissioner.
The Notice of Appeal to the Tribunal sets out grounds of appeal as (a) error of fact, (b) error of law, and (c) combined error of law and fact. The documentation relied upon is expressed as "All Human Rights, State Office, Home Office and other reports available, such other and further documents as come to hand before hearing". The submissions intended to be relied upon are stated to be "Based on Grounds of Appeal" and the listed authorities are stated as "All legislation and jurisprudence relevant", and in that section of the Notice of Appeal (which is that prescribed in the Refugee Act 1996 (Appeals) Regulations 2000 (SI No. 342 of 2000), referring to witnesses, the form provides:-
"7. Witnesses: Please supply the name, address and telephone number of witness(es) whom it is proposed to call to give evidence at the oral hearing. Please state clearly the nature, purpose and relevance of the evidence proposed to be given by the witness and whether you wish the attendance of any of the witnesses to be directed by the Tribunal. You may use additional pages, if necessary, but, if so, both you and your legal representative, if any, should sign the bottom of each additional page."
There then follows a layout or format of table which seeks specific details on the name(s) of the witness(es), contact details, language and, perhaps more importantly, "nature, purpose and relevance of the evidence". To these specifics, the Notice of Appeal dated 12th October 2001 states:-
"The Applicant
All interviewing officers in the case The Applicant reserves the right tocall further witnesses."
Subsequent to the lodgment of the appeal, the Applicant's solicitor wrote to the Tribunal on 30th November 2001, in the following terms:-
"We refer to our telecon with you of today's date. Unfortunately, counsel, Saul Woolfson BL, only had an opportunity to meet with the Applicant on
Thursday, 29th November. Following that consultation the following has arisen.
The Applicant will require an interpreter in the Igbo language for the hearing.
We wish the Tribunal to direct that the Authorised Officer of the RAC who carried out the interview of 6th July 2001, and who prepared the Reports under Section 11(2) and Section 13(1), be available as a witness at the hearing. The purpose of calling this witness will be to seek answers and clarification in relation to the manner that the interview was conducted having regard to the negative findings of fact and credibility outlined at Section 2 of the Officers Report under Section 3(1) under the heading of 'Findings' in that report and in particular the findings set out at (b), (c), (d) and (f) of that section of the Report (see, in particular, the question and answer exchange at page 8 and 9 of the interview).
We also require a copy, in advance of the hearing, of Tab A, referred to by the Authorised Officer in his Report under Section 13(1), and on which the Authorised Officer has relied. This has not been furnished to the Applicant or his representative. It is our intention to submit expanded Grounds of Appeal, submissions and relevant country information prior to hearing."
The letter is then concerned as to the making of arrangements for the adjusted day of hearing of the appeal.
A document of the same date headed "Expanded Grounds of Appeal", of some nine pages (which included submissions and documents relied upon) requested the Tribunal to direct the attendance at the appeal of Mr. John Mee to give evidence. While this document clearly indicated that the Applicant wished to be furnished with and have produced to the Tribunal any documents over and above those which he had been furnished with prior to the submission of the original Grounds of Appeal, the purpose of requesting Mr. Mee's attendance was clear, taking the letter and the submissions together, and the Tribunal did not address his attendance. In this case, as in many others, there is talk of an Applicant having an opportunity to question and answer his accuser. This is a complete misunderstanding of the asylum process. The purposes of the Section 11(2) and 13(1) reports is clear from the terms of the Act of 1996, and is the subject of an unreported High Court judgment in Ten-v- The Minister for Justice, Equality and Law Reform (31st October 2001). The independent investigative process of the Tribunal is to treat of the application as if it had been made to it in the first instance and if satisfied on its hearing and consideration of the appeal, to take any of the courses set out in Section 16(2) of the Act of 1996. If the purpose of Mr. Mee's attendance was to "produce to the Tribunal all documents relating or pertaining or concerning the interview conducted with the Applicant on 6th July 2001, and the preparation of the reports pursuant to Sections 11(2) and 13(1) of the Act of 1996, including contemporaneous notes of same", that requirement had already been satisfied by the Applicant having (a) been given a copy of the interview notes and given a written acknowledgment of same on 6th July 2001, (b) signified his satisfaction with the record of the interview, and (c) not having sought to make any written representations relating to his case within five days of the interview. Even in a situation of discovery, under the rules of court, draft reports are not discoverable — what issues is what counts. The court is not concerned with the process of generation or the ruminations of officials in the course of preparing a report. The "corrections", particularly as to the date of a specific occurrence, are apparent on the face of the interview notes. The Applicant was — if the evidence was truthful — entitled to say which date was correct, how (if it were the case) that an incorrect date was given and the extent to which (if any) he was disconcerted by the opening of the interview. In the absence of Mr. Mee, the Applicant was free to give his account of the interview and to criticise what he considered to be errors by Mr. Mee. It was then for the Tribunal to make its evaluation of all the evidence before it. However, I have not doubt that it would have been preferable had Mr. Mee been invited to attend at the appeal hearing for it would have avoided what may ultimately transpire to be a matter of no account. While the matters averred to in paragraphs (6) and (7) of the Applicant's affidavit are understood, sight must not be lost of the freedom the Applicant had at the appeal. Unlike the interview process which, with the ASY1 form and Questionnaire, is part of the information gathering, neither the work of the Commissioner nor of the Tribunal are to be fettered by legalistic minutiae. The constitutional and statutory requirements and fair procedures must be observed. This does not mean that in the process of fact finding and ultimate evaluation that reservations may ultimately come to be expressed in a decision should be put to an Applicant so that he can furnish a 'tailor made' reply. Often, such reservations will only occur when the decision maker reflects — after the interview or oral hearing — he/she is not expected to enter into an endless debate.
While Regulation 10 of SI 342 of 2000, earlier referred to, leaves the Tribunal with a large measure of control and discretion as to how an appeal is conducted, given the peculiar circumstances of this case and in particular the additional matters highlighted in the Expanded Grounds of Appeal, in my opinion, a reasoned judgment on a ruling not to call Mr. Mee should have been given by the Tribunal at the time of the hearing or in its report.
In my judgment, the Applicant is entitled to an order for leave to apply for judicial review for the following reliefs sought in the Statement of Grounds as against the Tribunal: B, E, G, and relief as against the Respondent Minister, as referred to in H, only until such time as the Tribunal issues a recommendation and decision on the matter which is by this order is remitted to it. The grounds upon which the relief is to be sought is as follows:-
"The Applicant was denied the opportunity at the appeal hearing to call or cross-examine as a witness the Authorised Officer who conducted the interview in the special circumstances of this case."
Having considered all the other elements of the application in detail, I am not prepared to grant any other reliefs or permit the case to go forward upon any other ground.
END OF JUDGMENT