Ireland - High Court, 10 February 2010, X.L.C. v Minister for Justice Equality and Law Reform and Anor., [2010] IEHC 148

Facts:

The applicant was a citizen of China who fled from there in 1998. He spent two years in France and then came to Ireland in 2000, living and working without permission until he was arrested by immigration officials in 2007.He then claimed asylum on the basis that he had been paid to distribute leaflets in support of the Falun Gong movement in China, but that he was not a member, that the Chinese authorities had cancelled his national identity documents and family registration booklet before he left China as a result of his activities, that he feared that he could not return to China and live there without proper ID, and that he would face difficulties because of his activities in relation to Falun Gong.

ORAC refused to recommend refugee status and their report contained a finding that the applicant “without reasonable cause, failed to make an asylum application as soon as reasonably practicable after arrival in the state”. Domestic legislation, the Refugee Act 1996, as amended, provides that in those circumstances an appeal is available on the papers only. The applicant argued that an appeal on the papers only where there was a finding of a lack of credibility necessitated oral testimony to rebut this.

Decision & reasoning:

The Court first considered the circumstances where it would allow a review of a recommendation of ORAC where an appeal was available to the Refugee Appeals Tribunal (RAT).

The Court cited previous High Court decisions that a review would be allowed only where

“in the rare and exceptional cases where it is necessary to do so in order to rectify a material illegality in the report; which is incapable of or unsuitable for rectification by the appeal; which will have continuing adverse consequences for the applicant independently of the appeal; or is such that if sought to be cured by the appeal, will have the effect that the issue or that some wrongly excluded evidence involved, will not be reheard but will be examined only for the first time on appeal”

The Court concluded that this case was not one which came within these categories. Also the Court found that on the facts oral evidence could not achieve what written evidence could in an appeal.

The Court concluded that the “decision” of ORAC was in fact a “ report”  which “does not have any immediate decisive effect or decisive character”, and that this report “is not subsumed into or replaced by the appeal decision of the Tribunal (RAT)”.

The decision which determines that the asylum application be rejected is made by the Minister under section 17(1) (Refugee Act 1996, as amended). On that basis the Court held that the ORAC report and the appeal decision were not “two separate and autonomous administrative or quasi-administrative decisions equally susceptible to challenge”.

The Court was of the view that as the appeal body had a further role under the European Communities (Eligibility for Protection) Regulations 2006, the domestic mechanism which gives effect to the Qualification Directive, that this ensured a continuing investigative role for the appeal body.

Outcome:

The Court refused to set the decision aside and found that on the facts the available remedy of an appeal on the papers only was sufficient.

Observations/comments:

This case contains a comprehensive and helpful analysis of the caselaw relating to the circumstances in which the Court will consider a review of a negative recommendation of ORAC to be amenable to review.

A useful analysis of the refugee status determination procedure and the interplay of the RAC and RAT also features.