Ireland - High Court, 31 July 2012, B.J.C. (South Africa) v the Refugee Appeals Tribunal, the Refugee Applications Commissioner and the Minister for Justice, Equality and Law Reform [2012] IEHC 340
| Country of Decision: | Ireland |
| Country of applicant: | South Africa |
| Court name: | High Court (Cooke J) |
| Date of decision: | 31-07-2012 |
| Citation: | [2012] IEHC 340 |
| Additional citation: | 2010 No 91 JR |
Keywords:
| Keywords |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
Headnote:
The Court granted permission to the Applicant to seek judicial review of the negative decision made in a written appeal (rather than an oral appeal) in an application for refugee status made by a South African national. The decision to allow a written appeal was based on the status of South Africa as a ‘safe country,’ but because the appeal decision was based on personal credibility, the absence of an oral hearing may have been unlawful by reference to the right to an effective remedy as guaranteed by the Asylum Procedures Directive.
Facts:
The Applicant, a South African national, applied for asylum in Ireland on the basis that his parents were from Zimbabwe, and received a negative recommendation from the Office of the Refugee Applications Commissioner (ORAC) at first instance. South Africa is designated a "safe country" pursuant to section 12(4) of the Refugee Act 1996, and as a consequence, the Applicant was limited to a written appeal only of the negative recommendation rather than an oral appeal; owing to the powers to so direct afforded by 13(5) of that Act. The Court found that there was an express finding of lack of personal credibility which formed part of the basis for the negative recommendation, and also that internal protection would be available to the Applicant in South Africa by relocating to either Cape Town or Johannesburg.
Decision & reasoning:
In the previous case of N. v. Refugee Applications Commissioner and Others [2012] IEHC 338, the High Court had held that (a) section 13(5) of the Refugee Act 1996 confers a discretion on the first instance decision-maker as to whether one or more of the findings identified in section 13(6) prescribe the possibility of a written appeal only (including that the Applicant is from a “safe country”) and (b) in a case where the negative recommendation was based exclusively or primarily upon a finding of a personal lack of credibility, there is an obligation to ensure that the appeal to the Refugee Appeals Tribunal (RAT) provides an "effective remedy," in the sense of Article 39 of the Asylum Procedures Directive, which may thus require an oral appeal notwithstanding that the Applicant is from a “safe country”.
In the present case, the Applicant availed of the written appeal to the RAT, and it was held to be out of time for a challenge to the decision by ORAC to limit his appeal to a written form.
The Court then considered whether the Applicant could make out a substantial ground to the effect that he had been deprived of an "effective remedy," within the meaning of section 39 of the Asylum Procedures Directive owing to having been limited to a written appeal.
The Court found that credibility was at the heart of the decision taken by the RAT and that to some extent the negative finding was based upon the plausibility of the description he gave of his travels to Mozambique and Nigeria.
The Court held that the possibility could not be excluded that the relevant conclusions might not have been arrived at had there been an oral hearing at which there would have been an opportunity of assessing personally the responses of the Applicant to pertinent questions on the relevant issues and events, and consequently it was held that the Applicant had made out a sufficiently substantial ground that he had been deprived of an effective remedy, and leave would be granted to seek judicial review on that basis.
The Court granted leave on a number of unspecified grounds pleaded by the Applicants linked to this issue, and granted leave in particular in the following terms:
"The decision of the first named Respondent on the Applicant's appeal is unlawful in that, in the absence of an oral hearing, the Tribunal member has relied predominantly upon responses to questions in the s. 11 Interview which depended upon the personal credibility of the Applicant with the result that the Applicant has been deprived of an 'effective remedy' by way of an appeal before the Tribunal."
Outcome:
Leave to seek judicial review of the RAT decision was granted, but leave to seek judicial review of the decision of ORAC was refused.
Observations/comments:
By contrast, in the case of T. E. S., M. N. R. and B. F. R. [South Africa] v Minister for Justice and Equality, and the Attorney General, 2012 No 429JR, [2012] IEHC 554, which was decided after this case, Clarke J. of the High Court refused to grant leave to seek judicial review, holding that an appeal could not be challenged on this basis, because the appropriate time to challenge a decision to grant a written appeal by way of seeking judicial review would be prior to availing of the appeals process. The B.J.C. [South Africa] judgment was not referred to in her judgment, and may not have been brought to her attention. The author is unaware of any authoritative resolution of the issue at the time of writing.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Ireland - High Court, S.U.N. v Refugee Applications Commissioner & ors [2012] IEHC 338 |