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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> B. (F.) v. Refugee Applications Commissioner & Ors [2002] IEHC 136 (25 April 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/136.html Cite as: [2002] IEHC 136 |
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Record No. 2001/800JR
BE'I'WEEN
Applicant
Respondent
JUDGMENT DELIVERED, AS FOLLOWS, ON THURSDAY, 25TH APRIL 2002:
MR. JUSTICE SMYTH: The Applicant, a Romanian National, is a female person with a date of birth of 19th April 1973, and arrived in the State on 22nd of October 1999 having paid a driver 500 DM to travel by sea and road over a-four day period. On 26th October 1999 she signed the ASY-1 form acknowledging receipt (inter alia) of:
(i) Information Leaflet and Procedures for Processing Asylum Claims
(ii) Questionnaire regarding application for Refugee Status
(iii) Refugee legal Service Information leaflet.
Without wishing to oversimplify the Applicants reasons for seeking asylum which were primarily that she became involved in student politics and demonstrations and attracting the attention of the police and was a member of a National Liberal Party (the PNL)and felt alienated by Hungarians and Romanians alike for apparently different reasons and decided "all of a sudden to leave" Romania.
On 20th April 2001, the Applicant was interviewed in the presence of an interpreter. The Applicant finished in High School in 1991, when aged 18 years. She then spent two years at University but did not complete her course of studies there. From until she departed from her country of origin she worked as a librarian at the High School library. The interview was wide ranging and extensive.
In due course reports under Section 11(2) and Section 13(1) of the Refugee Act 1996 were prepared. It was concluded by the Refugee Applications Commissioner (hereinafter referred to as "the Commissioner") that the Applicant's application was not such as to entitle her to a declaration as a refugee. She was informed to this effect by letter dated 8th May .
On 29th May , the Refugee Legal Service submitted an appeal against the determination of the Refugee Appeals Commissioner to the Refugee Appeals Tribunal, (hereinafter referred to as "the Tribunal") which by any standard was both substantial and detailed.
The Applicant was notified by letter dated 27th August by the Tribunal of the day, date, time and venue of the hearing of the appeal. The letter specifically stated:-
"Please note that your appeal is being dealt with in accordance with the provisions of the Refugee Act (as amended). Details of the new procedures for processing asylum applications are set out in 'the information leaflet for applications for refugee status in Ireland, (Appeals procedure - Substantive)'. You should already have received a copy of this leaflet if not, copies are available from the Refugee Appeals Tribunal 6/7 Hanover Street, Dublin 2".
The appeal took place on 10th September in the presence of an interpreter, the Applicant being represented by one Karl Finnegan, instructed by the Refugee Legal Services, solicitors. Karl Finnegan had also signed the detailed Notice of Appeal to the Tribunal on 24th May , which was also signed by the Applicant.
In her affidavit grounding her application for leave to apply for judicial review, she avers that- :
"6. I was very apprehensive at the appeal hearing given the fact that it was held in a small room with a number of persons present. There was an interpreter present, but I did not comprehend what was happening.
7. Mr. Delap, the Member of the Refugee Appeals Tribunal who conducted the appeal hearing did not explain to me or my legal representative how the hearing was to be conducted and as I am told he is was(sic) obliged to do so. I feel I was disadvantaged by not knowing how events to were to unfold.
8. The Refugee Appeals Tribunal failed to call the Refugee Applications Commissioner or his representative or to facilitate them being questioned by me or my representative.
9. The report of Refugee (sic) Appeals Tribunal clearly states that the Tribunal considered the report and recommendation of the Refugee Applications Commissioner under Section of the Act. I believe that this report should not have been considered as it is not as required by the Act."
One of the grounds upon which relief was sought in the Statement of Grounds dated 28th November was that the Commissioner did not prepare a report in accordance with the Refugee Act . Very sensibly this ground was not pursued in the light of the decision in Ten -v- The Minister for Justice Equality and Law Reform (unreported 31st October 2001)
The case in its essentials gives rise to a consideration of the provisions of the Refugee Act 1996 (Appeals) Regulations, 2000 (S.I. 342 of 2000 hereinafter referred to as "the Regulations") and in particular regulations 9(3) and Regulation 10; which provide as follows:
" 9(3)(a) Where the Notice of Appeal includes a request to the Tribunal to direct the attendance of a witness before the Tribunal, the Tribunal shall in respect of each such witness determine whether he or she should in accordance with section 16(11) of the Act be directed to attend before the Tribunal,
(b) In making a determination under subparagraph (a), the Tribunal shall have regard to the nature and purpose of the evidence proposed to be given by the witness as indicated in the notice of appeal.
(c) Where the Tribunal determines that a witness should attend before it shall direct the witness to attend in accordance with Section 16(11) of the Act.
(d) A witness directed to attend a hearing under paragraph(c) shall be present at the oral hearing only for the duration of his or her evidence".
In conducting an oral hearing the Tribunal shall- -
(a) ensure that the Applicant and the Commissioner and their legal representatives if any, and the High Commissioner, if present, are informed of the order of proceedings which the Tribunal proposes to adopt;
(b) conduct the oral hearing as informally as is practicable and consistent with fairness and transparency;
(c) decide the order of appearance of the applicant and the Commissioner and any witnesses;
(d) ensure that the oral hearing proceeds with due expedition; and
(e) allow the for the questioning of the applicant, witness and the Commissioner".
It is of importance to note as follows:
(a) There is no affidavit from either the interpreter or the legal representative who attended with the Applicant before the Tribunal
(b) The interview notes signed by the Applicant confirm that she did understand the interpreter and all that transpired at he interview
(c) On two specific occasions before the Tribunal hearing the Applicant's attention is drawn to the leaflet for applications for refugee status in Ireland, and specifically so in the notification of the actual hearing dealing with the appeals procedure
(d) The legal representative of the Applicant was a person experienced in these matters. I do not speculate that such person did or did not speak to the Applicant at any time prior to or at the hearing to explain the general format and purpose of the oral hearing. Commonsense would suggest that some indication (if not express advice) would have been given to the Applicant before or at the outset of the hearing. Paragraph of Mr. Rowley's affidavit of 4th March 2002 adverts to this issue but there is no response thereon from the Applicant.
(e) There was no request to the Tribunal (in the notice of appeal) such as envisaged by Regulation 9(3) and accordingly no issue arises concerning compliance with that regulation. However the Applicant did clearly signify her intention to call her brother as a witness at the oral hearing.
(f) The Tribunal decision of 31st October, found the Applicant to be a credible witness.
(g) Notwithstanding that the Applicant fully understood all the interpreter said at the interview she avers that she "did not comprehend what was happening at the oral hearing" there is no record of any adjournment being sought to have matters explained to her. This matter is specifically referred to in the replying affidavit of Mr. Gerard Rowley of 4th March 2002 but evoked no response.
(h) Whatever shortcomings may have existed, and on the present state of the evidence I am able to determine that as a matter of probability they existed, is unfortunately incapable of certain resolution because of the death of Mr. Sean Delap who presided at the oral hearing and the absence of an affidavit from the Applicant's legal representative swearing on affidavit as to the facts known to him or her.
The grounds upon which relief is sought assert that the Tribunal in arriving at its decision took into account irrelevant matters and failed to take into account relevant matters. There is no evidence to sustain this assertion. The decision (at page 3) enumerates the several matters which were considered in reaching the decision, none seem irrelevant nor could counsel direct attention to any omission.
The Applicant contended that the result of the oral hearing before the Tribunal cannot be relied upon because the Tribunal did not afford the Applicant the type of hearing required by Section of the Act of and the Regulations. This general assertion is in my judgment not sustainable to the point where I could hold that there was good and substantial grounds upon which leave to apply for judicial review could be granted on so wide a basis as is sought. The only two possible queries thatarise under Regulation 10 (a) and (e).
The obligation under Regulation 10(a) imposed a duty on the person conducting the oral hearing to ensure that the order of proceedings is made known to the participants the duty is to inform. The Applicant's averment of not comprehending (at paragraph 6 ) and a lack of explanation at (paragraph 7) does not mean that there was a failure to inform. If the Applicant had the difficulties averred to there is no account of what she said or enquired of by the interpreter or the experienced legal representative who practices in this area of law. It is difficult to understand how the Applicant can aver that she was disadvantaged by not knowing how events were to unfold, when the Tribunal effectively found her to be a credible witness and she had a legal representative in attendance to explain to her anything she may have had difficulty with in whatever information was given by or to the Tribunal. True she could not know how events were to unfold in the sense of knowing what the outcome of the hearing would be. The format of the decision clearly indicates that having recorded the appearance and taken oral evidence and documents produced by the Applicant and the submissions at the hearing, the Tribunal made a decision. The averment in paragraph 7 of the Applicant's affidavit gives no account of how the hearing opened - by way of introduction(s), exchange of names, casual or formal pleasantries. While corroborative evidence is not an invariable requirement "at a leave" stage no explanation is given as to why the Applicant who certainly up to 10th September 2001, and may be until 14th November 2001 where she was represented by the Refugee Legal Service Solicitors and a period of at least four months elapsed without securing an affidavit from the legal representative (who would not have had a language difficulty) to explain what was stated by the deceased member of the Tribunal. All cases are arguable - in these cases there must be substantial grounds to grant leave and a full hearing for contending that the decision is invalid or ought to be quashed. I am not as satisfied in all the circumstances that this standard has been achieved on the evidence for relief on so broad a basis.
The other main ground of challenge arises from the allegation that the Tribunal failed to-
(e) "allow for the questioning of ... witnesses and the Commissioner".
This matter became contentious because of the manner of response in Mr. Rowley's affidavit (paragraph 7) wherein he averred and replied to paragraph 8 of the Applicants affidavit as follows:
- "I say that at no time would the second named Respondent call the Refugee Applications Commissioner or her representative to facilitate them being questioned".
Unless there is a specific provision for a request under Regulation 9(3), which does not arise in this case. The Tribunal cannot direct, but may request the Commissioner and his or her representative to attend before it. It is customary for the Commissioner to be represented, indeed it is not only desirable but in most cases necessary and essential that he or she be represented to assist the Tribunal and be available to respond to reasonable enquiries and questions from the Applicant or the Applicant's legal representative. The extent to which the Tribunal shall allow questioning must be a matter left to the Tribunal, to ensure that constitutional and natural justice is maintained and fairness and justice observed. The Tribunal is not obliged to permit irrelevant questioning, nor should it permit tediously repetitive enquiries to be pursued. The discretion as to the range of enquiry must be left with the Tribunal. It is not for the court to lay down rigid rules in this regard. The Regulation is clear in its intent and text and decisions are ultimately subject to judicial review.
The parties to an appeal may elect to tender evidence and/or make submissions. If evidence is tendered then within the letter and spirit of theRegulations the Tribunal shall allow for questioning. When the Tribunal comes to make its decision it shall have regard to all relevant' facts and if in any specific case, the Commissioner decides to tender no evidence by way of a witness and simply rely on submissions then that is a fact to be considered by the Tribunal. What is significant may well vary from case to case.
The annotated version of the Refugee Act Section reveals that in the course of the passage of the bill through the Oireachtas concern was raised "that there was no mandatory obligation on what was then referred to as the Appeals Board (now the Tribunal) to call witnesses required by the Applicant to give evidence before the Appeal Board, nor an entitlement on the part of the Applicant to call witnesses in support of his or her application at a hearing before the Appeal Board. The Minister firmly rejected [the] proposed amendment along those lines, stressing that the proceedings before the Appeals Board were not intended to be adversarial in nature". I might add not only is it not a lis inter parties much less should the oral hearing be conducted like a criminal trial.
The functions assigned by the legislature through the Acts and Regulations to the Commissioner and the Tribunal are specific. The manner of their carrying out their duties is reviewable by the courts.
The unhappy manner in which Mr. Rowley expressed himself clearly suggests that at no time would the Tribunal facilitate the questioning of the Commissioner or his or her servant, agent or representative. If this actually reflected the true state of the facts then such would be a wholly mistaken view by the Tribunal because Regulation 10(e) specifically directs the Tribunal to allow for the questioning (inter alia) the Commissioner. However, there is no obligation on the Tribunal to call the Commissioner to give evidence. Even if the Commissioner or his/her representative did not tender any evidence an Applicant or his or her representative may request the Tribunal to be allowed to question the Commissioner - in which event the Tribunal must allow such questioning. In such event the Tribunal before permitting such questioning may reasonably enquire what is the purpose of such intended questioning to be satisfied as to-its relevance and admissibility. In following this course the provisions of Regulation 10 (b) in particular must be observed. There must be an orderly structure to the hearing that must avoid the twin extremes of rigidity and confusion.
While fully accepting the Respondents criticism of lack of detail in paragraph of the Applicant's affidavit; Mr. Rowley (who was not present at the hearing) makes a response which in the specific special circumstances of this case unlike many others, is a matter of importance.
Accordingly the Applicant will have leave to apply for judicial review to seek reliefs 1, 2, and 4 on grounds B and D set out in the statement required to ground the application for judicial review dated 28th November 2001 specifically directed to the provisions of Regulation 10(a) and (e) in particular of the Refugee Act 1996 (Appeals) Regulations 2000 (SI 342 of 2000).
