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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> C.R.D.L & anor (Bolivia) -v- Refugee Applications Commissioner & ors [2015] IEHC 182 (20 March 2015) URL: http://www.bailii.org/ie/cases/IEHC/2015/H182.html Cite as: [2015] IEHC 182 |
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Judgment
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Neutral Citation: [2015] IEHC 182 THE HIGH COURT JUDICIAL REVIEW [2010 No. 744 J.R.] BETWEEN C.R.D.L AND K.A.S.D (A MINOR) (BOLIVIA) APPLICANTS AND
THE REFUGEE APPLICATIONS COMMISSIONER, THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENTS JUDGMENT of Mr. Justice Eagar delivered on the 19th day of March 2015 1. This is a telescoped application for an order of certiorari quashing the decision of the Refugee Applications Commissioner to recommend that the Applicants not be declared refugees by the third named Respondent. This was issued to the Applicants on the 11th May 2010 and received by them on the 13th May 2010. Also sought was an order of prohibition restraining the second named Respondent, the Refugee Appeals Tribunal, from hearing the Applicants appeal against the said decision. The Refugee Appeals Tribunal have indicated that no decision will be taken by the Tribunal pending the determination of these proceedings. 2. The first named Applicant is a citizen the Republic of Bolivia born in Cochabamba on the 18th February 1984. The second named Applicant is the son of the first named Applicant and is a citizen of Bolivia and born in Bolivia on the 30th August 2006. Both Applicants had applied for refugee status in the State. The first named Respondent has recommended that the Applicants not be declared refugees by the third named Respondent. Background Facts
2) Insurance Cards in relation to a flight from Bolivia to Cairo. 3) One Air France boarding pass for a flight from Paris to Cairo on the 19th October 2009. 4) One Air France boarding pass for a flight from Cairo to Dublin on the 1st November 2009 5) Two Stenna Line return tickets from Dublin to Holyhead to Dublin on the 10th November 2009. 6) Some of Country of Origin Information 5. The first named Applicant is the youngest in her own family. She has one older brother who is married and lives with his other family and four older sisters. Her father died when she was two years old. Her mother and siblings continue to live in Bolivia. 6. In and around August 2008 the first named Applicant began suffering the harassment of a man. This man harassed her and threatened her and her child to the extent that she felt forced to leave the country. She moved to Argentina in March 2009 but she believed that the man traced her there. She returned to Bolivia in July 2009. In September 2009 she was harassed again by the same man. She found the situation unbearable and decided to flee the country again. She flew to Cairo in October 2009 and shortly after flew to Dublin. She did not need a visa to travel to the State and she flew using her own Bolivian passport. She was hoping that she would be allowed to pursue a course of study but the Garda National Immigration Bureau told her that she would have to arrange to return her son to Bolivia first. As the first named Applicant did not wish to be separated from her child and she was afraid to return to Bolivia, she decided to make an application for asylum. She does not believe she would be safe in Bolivia. She does not believe that the Bolivian authorities would protect her from this man. Questionnaire
A. “No”.
A. “Because I do not know his name for fear of reprisals by this man.”
A. “I fear that this man may kidnap my son or hurt myself.” Section 11 Interview 10. The Applicant said that she spent 10-12 days in Cairo but she felt that the same things were happening, that men were after her again and the same bullying as took place in her own country occurred. 11. Her ticket from Cairo was bought by a sister’s friend who lives in Spain. She arrived in Ireland on the 1st November 2009 and applied for asylum on the 3rd February 2010. 12. She was asked why she did not apply for asylum when she was in Ireland from the 1st November 2009 to February 2010 and she explained that she did not think there was asylum for women like her who were being followed. She thought it was only for political asylum. She signed up for the Euro College so she would not be here illegally in the country. She was advised by a woman who spoke Spanish that she should go to Spain because her native language is Spanish. She bought a ticket for Alicante in Spain but when she got there they sent her back to Ireland. 13. She said that her occupation in Bolivia was that she sold cosmetic products and was also a fruit seller whenever there was a festival. She was asked who did she fear in Bolivia and she said “A man who is after me. He is after me and he bullies me and threatened to harm my son and the worst thing is I do not know who he is or where he lives.” This began in the middle of August 2008 around the time of her son’s birthday. She was asked how did the man approach her and she said she was going on a bus with her beauty products and to help her mother selling fruit. When she was travelling she got into a minibus which was leaving the stop. Various different people got into the bus. During the journey people were getting off at their destinations and then it was just the driver and herself alone. He asked the first named Applicant to have a drink with him. She said no and asked him if this is where he was stopping. He said he would continue with the journey. He invited the Applicant to have a drink with him again. When she asked how much she owed him for the lift he asked her to have a drink with him. He started touching her and came on to her. She asked what he was doing and she said she was a married woman with children and he was making movements because he was coming towards her all the time. She pushed him to the other side of the seat, grabbed her bag and got out his door of the minibus. She caught a taxi. She said that this was not the first time that this had happened to her. She said that the previous incident had happened when she had gone to the hospital and a doctor had tried to abuse her. 14. She was asked if she was physically harmed by the man in the bus and she said no. She did not go to hospital. She said that at the beginning of September she noticed a man was watching her from a green jeep and she explained that was because the box of products had her address and telephone number on it and also her name. 15. She said that he was watching her where she was living to see if she was going to come out of the house. She said when she started going out of the house to the shop, she walked in front and this car came along and started up and started to sound the horn at her and she kept on walking or looking back. She was very tense as a result of this. She was asked did she report the incidents and she said no because he knew where she lived and she had a son. She also said that if she complained to the police, they would not do anything. She stated that she did not know the man’s name and did not know where he lived, so she could not really tell the police much. She said that on the 8th October she was going with her son to the market and saw a taxi which did not have a registration number, which was strange. She met a woman who went with her on a public minibus and she was very upset and she phoned her sister and told her what had happened. They discussed making a complaint to the police but the problem was that she did not know the man’s name. She said that after the 8th October he had telephoned her, telling her he knew that she had a son and that she was not married. She said that between October 2008 and March 2009 she was approached in November and January and that it was these incidents which caused her to leave Bolivia. The last call he made to her was in January 2009 and he said he knew where her son was. She said that after this phone call she was going to the police in February to complain but someone who was in front of her was asked by the policeman at the desk “How can we make a complaint if we don’t know the name of the man or where he lives”. The police were shouting at the woman as she did not know his name and she decided to leave the police station and did not make a complaint. She said she spent three months in Argentina but her landlady (in Argentina) told her that an older man had come looking for her and she got it into her head that it was the same man. Section 13 Report and Recommendation
17. The recommendation in relation to s.13(6)(a) stated that the application showed either no basis or a minimal basis for the contention that the Applicant is a refugee and pursuant to s. 13(5)(a) that the Applicant may appeal to the Tribunal under s.16 against the recommendation within ten working days from the sending of the notice and that any such appeal will be determined without an oral hearing (this Court’s emphasis). 18. Section 2 of the Refugee Act was quoted and it requires that for a person to be considered a refugee they must have “a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”. The report also made the point that while the Applicant claimed she was harassed by this man, she was unable to provide any information including both his name and where he lived. She also did not report the man to the police. The report also made the point that the first named Applicant appeared to be the victim of an opportunistic attack and that she had not supplied sufficient evidence that she was targeted for any Convention reason. Section 11B(d) of the Act was mentioned. The view of the first named Respondent was that that the Applicant’s delay in applying for asylum affected her overall credibility and drew doubt over her claims that she and her son were at risk in Bolivia. 19. There was then an issue in relation to State protection and internal relocation, and the Country of Origin Information did suggest that women were second class citizens. 20. Finally, the Refugee Applications Commissioner stated that “the Applicant is claiming a fear of returning to Bolivia due to criminality. Therefore there is no nexus to section 2 grounds in this case.” The Refugee Applications Commissioner further stated that “the application showed either no basis or minimal basis for the contention that the Applicant is a refugee.” 21. The report continued “notwithstanding that the Applicant appears to be the victim of an opportunistic isolated attack and she has not supplied sufficient evidence that shows she was targeted for any Convention reason i.e. race, religion, political opinion, that would bring her under the scope of the definition”. 22. The recommendation was that the Applicant should not be declared a refugee and there was also a recommendation that s.13(6)(a) was appropriate to the application. Submissions by the Applicant 24. He also emphasised that this raised a minimal prospect of success with the appeal. Counsel on behalf of the Respondent objected on the basis that this was not a ground which had been put forward in the statement required to ground application for judicial review. I am satisfied to deal with this aspect of the application. Counsel for the Applicant argues that the first named Respondent held that the application showed either no basis or a minimal basis for the contention that the Applicant is a refugee. He suggested that the finding was irrational and unreasonable at law. He argued that the Convention ground/nexus was gender and this required the intervention of this Court by way of judicial review. He also argued that Irish law must comply with the Procedures Directive and that s.13 (6) inherently does not accord with the right to an effective remedy under Article 39 of the Directive. He also quoted from S.U.N (South Africa) v. Refugee Appeals Tribunal [2012] IEHC 338. Here, Cooke J. held that where the negative recommendation is to be made which would be based primarily on a finding of a lack of credibility there was an obligation to ensure that the appeal to the Refugee Appeals Tribunal provided an effective remedy as required by Article 39 of the Procedures Directive. Submissions by counsel for the Respondent Discussion
2) The significance of the error will determine whether the court may exercise its discretion to grant judicial review. 3) Not all errors as to jurisdiction attract judicial review. 4) The court must carefully consider the nature of the error in deciding whether the interests of justice require the first instance decision to be quashed and taken again rather than the error being the subject of an appeal to the Refugee Appeals Tribunal 5) The court should bear in mind the extent of the Refugee Appeals Tribunal capacity to provide a remedy and reverse the error (the nature of appeals to the RAT has been fully described by Charleton J. in the Supreme Court in M.A.R.A) 29. The decision of the Refugee Applications Commissioner in this case is not such an error of jurisdiction in my view. The Applicant has indicated that she is being sexually harassed by an individual person who she does not know. Clearly this man has been involved in serious criminal conduct and the offences of harassment and sexual assault are widely regarded as serious offences. Nevertheless his criminal activities do not bring the Applicant into membership of a particular social group or political opinion and the finding by the Refugee Applications Commissioner of obtaining a fear of returning to Bolivia due to criminality and showing that there is no nexus to s.2 grounds is in my view a reasonable decision. However that may deal with the application in this case, there are further comments I would like to make. 30. Section 16 of the Refugee Act 1996 (as amended) does not set out exhaustively the way in which the Refugee Appeals Tribunal should set out its work. The duty of the Tribunal on appeal is either to affirm the recommendation that refugee status should be refused or the Tribunal may make a positive recommendation where “it is satisfied, having considered the matters referred to in subsection (16) that the Applicant is a refugee.” However there appears to me to be a complete opportunity to present, on behalf of the Applicant in aid of this inquiry, any new facts or arguments and to re-argue the points appealed. The Applicant’s solicitor in this case has prepared a very detailed notice of appeal with substantial issues as to documentation, and Country of Origin Information and substantial submissions. It appears to me that there is a substantial onus on the Refugee Appeals Tribunal in deciding a case “on the papers” to consider the notice of appeal in detail and to respond to the points made in the notice of appeal and not merely to indicate that they have read the notice of appeal and then proceed not to deal with matters raised in the notice of appeal. 31. Counsel for the Applicant in this case indicated that the failure to have an oral hearing meant in effect that there was very little possibility of appeal without an oral hearing being successful. However no evidence of this was adduced before this Court. If this is the case, however, in the appropriate case where this evidence is adduced before this Court I feel that this Court should carefully consider this evidence. The Refugee Appeals Tribunal must (as an appeal of last resort) be extremely careful in making a decision. It must act in accordance with the European Communities (Eligibility for Protection) Regulations 2006 which give effect to the Council Directive 2004/83/EC of the 29th April 2004 on the minimum standards for the qualification and status of third country internationals (the Protection Regulations) and the Council Directive 2005/85/EC (the Procedures Directive). Whilst the Protection Regulations also deal with the issue of subsidiary protection they also have relevance to the refugee application and it is the view of this Court that the Refugee Appeals Tribunal must fully comply with the protections set out in these Regulations. 32. Article 39 of the Procedures Directive provides for appeals. Again it appears to me that the High Court in the exercise of the consideration by way of judicial review of an appeal (on the papers) will be assiduous in ensuring that these appeals are conducted fairly and in accordance with law. 33. For the reasons stated above I refuse the application for certiorari of the decision of the Refugee Applications Commissioner and the matter can now proceed to be heard by the Refugee Appeals Tribunal in accordance with law. |