Ireland - High Court, 28 April 2010, M.Y.G. v Minister for Justice, Equality and Law Reform & Anor, [2010] IEHC 127
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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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. |
Headnote:
This case concerned fair procedures, namely the right of an applicant to an oral hearing of his asylum appeal. The Court held that a fair appeal does not necessarily impute a right to be heard orally.
Facts:
The applicant is a Chinese national and claimed asylum in Ireland after being arrested as an illegal national (he had resided illegally in Ireland for 4 years). The applicant was refused asylum and was informed that he would have an appeal on the papers only as according to Irish legislation, the Minister has a discretion to deny an oral appeal in certain circumstances (including where an applicant had not claimed asylum immediately on arrival, without a reasonable explanation). The applicant protested that this was unfair, as his credibility was assessed without regard to relevant country of origin information, and he had not been permitted to address contractions in his account.
Decision & reasoning:
The applicant is a Chinese national and claimed asylum in Ireland after being arrested as an illegal national (he had resided illegally in Ireland for 4 years). The applicant was refused asylum and was informed that he would have an appeal on the papers only as according to Irish legislation, the Minister has a discretion to deny an oral appeal in certain circumstances (including where an applicant had not claimed asylum immediately on arrival, without a reasonable explanation). The applicant protested that this was unfair, as his credibility was assessed without regard to relevant country of origin information, and he had not been permitted to address contractions in his account.
The Court held that the evidence in an asylum case must be evaluated in light of country of origin information, and that this applies to the Tribunal on appeal every bit as much as the first instance decision-maker (applying the case of Horvath, United Kingdom). The appropriate test to use when evaluating if a decision maker used fair procedures is to ask whether the person adversely affected (i.e. the applicant) had a reasonable opportunity to know and address the matters which were likely to affect the judgment. The Court considered that in this case, the applicant was given an opportunity to address in writing all of the relevant inconsistencies and implausibilities in his story.
The Court did not accept the applicant’s argument that disputed credibility matters can only be resolved fairly by an oral hearing. The Court followed the binding Supreme Court case of VZ v Minister for Justice, Equality and Law Reform [2002] IR 135, which held that there is no general right to an oral appeal – the onus is on the applicant to satisfy the Court that an oral hearing is necessary in the particular circumstances of the case. In this case, the applicant would have a full opportunity to set out in writing his explanation for the inconsistencies in his account – there were no special circumstances would would render the absence of an oral hearing unfair, such as, e.g., a medical condition. The inconsistencies in his account had been set out clearly in the report of the first instance decision-maker. They were not in any way dependent on an impression made by the applicant as a narrator, and there was thus no basis for suggesting that only an oral hearing would allow the applicant a fair opportunity to address them.
Outcome:
Leave for judicial review was refused.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| UK - House of Lords, 6 July 2000, Horvath v. Secretary of State for the Home Department [2000] UKHL 37 |
| Ireland - A.D. v Refugee Applications Commissioner (Ex tempore, Unreported), High Court, 27 January 2009 |
| Ireland - Akinyemi v Minister for Justice, Equality and Law Reform (Unreported) High Court, 2 October 2002 |
| Ireland - Camara v Minister for Justice, Equality & Law Reform (Unreported, High Court, 26th July, 2000) |
| Ireland - Dokie (a minor) & Ajibola v Refugee Applications Commissioner & Ors, (Unreported, High Court, Cooke J., 19th January, 2010) |
| Ireland - Idiakheua v Minister for Justice, Equality and Law Reform (Unreported, High Court, 10 May 2005) |
| Ireland - JGM v Refugee Applications Commissioner [2009] IEHC 352 |
| Ireland - J.X. v Refugee Appeals Tribunal (Unreported, High Court Dunne J, 2nd June, 2005) |
| Ireland - Konadu v Minister for Justice, Equality and Law Reform (Unreported, High Court, 11 April 2008) |
| Ireland - Moyosola v Refugee Applications Commissioner [2005] IEHC 218 |
| Ireland - Olunloyo v Minister for Justice, Equality and Law Reform & Anor (Unreported), High Court, Cooke J. 06 November 2009) |
| Ireland - V.Z. v Minister for Justice, Equality and Law Reform [2002] IR 135 |
Other sources:
Prof. Guy S. Goodwin Gill, (The Refugee in International Law: Oxford University Press: 2nd Ed. 1988 p. 354)