Ireland - U.P. and The Minister for Justice Equality and Law Reform, the Refugee Applications Commissioner, Ireland and the Attorney General (Respondents) and the Human Rights Commission (Notice Party) [2014] IEHC 567

Facts:

This concerned a telescoped judicial review application seeking an order of certiorari quashing a recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicant not be declared a refugee, or, alternatively an order of certiorari quashing the recommendation which contained a finding under s. 13(6)(c) of the Refugee Act 1996 as amended, in respect of the applicant. Section 13(6) findings have the effect of creating shorter deadlines for submitting an appeal against a first instance refusal decision (10 days) and that any such appeal is determined without an oral hearing so they are, in effect, accelerated appeals. A s. 13(6)(c) finding for an accelerated appeal is on the basis that ‘the applicant, without reasonable cause, failed to make an application as soon as reasonable practicable after arrival in the State.’

The applicant was a Pakistani national who feared religious persecution due to his conversion in 2008 from the Sunni faith to the Shia faith. He firstly arrived in Ireland on a student visa in 2005 which was extended until 2011 where following the expiration of his visa, he applied for asylum in Ireland. The applicant claimed his religious conversion was discovered by his family on a trip back to Pakistan whereinafter he was assaulted and warned by religious extremists that he would be killed if he did not convert back to the Sunni faith. He applied for asylum in April 2011 and ORAC refused his asylum application stating that it did not find his testimony credible and considered that the applicant’s delay of almost a year and a half in applying for asylum after the persecution occurred, undermined his credibility. ORAC also made a s.13(6)(c) finding on the basis of the delay as part of the refusal decision.

The applicant challenged the decision by way of judicial review on two grounds:

(i)The exercise by ORAC of its discretion to apply s. 13(6)(c) was disproportionate and wrong in law in that it deprives the applicant of an oral hearing on appeal;

(ii)No consideration was given by ORAC to the explanation offered by the applicant for his failure to apply for asylum immediately upon his arrival in the State and the applicant was given an inadequate opportunity to address this issue.

Decision & reasoning:

The applicant’s request for leave to apply for judicial review was submitted outside the statutory time limit laid down by the Illegal Immigrants (Trafficking) Act 2000 but the Court took into consideration that it was during the vacation period and that the applicant and his legal representatives acted as promptly as possible once he received his ORAC recommendation. Therefore the Court was satisfied that there was good and sufficient reason to extend the time limit. The Court provided an overview of the ORAC recommendation before considering the grounds upon which the applicant sought to challenge the decision. The two main reasons for refusal in the ORAC decision were

1) if the applicant’s account were true, then he would have been killed when the extremists visited him in August 2009;

2) if he was genuinely in fear when he left Pakistan, he would have sought asylum on arrival in Ireland, rather than continue with his studies and apply for asylum a year and a half later in April 2011.

The first ground was that the s. 13(6)(c) finding was disproportionate in depriving the applicant of an oral appeal. The applicant contended that in cases that revolve around the personal credibility of the applicant “it is disproportionate, unreasonable, and irrational to deny an applicant the opportunity of personally convincing the Tribunal member that he is credible” (Para 19). The applicant then demonstrated that the issues raised as reasons for refusing him refugee status were all related to his credibility. The applicant stated that this could only be effectively appealed against by the opportunity of having that personal credibility tested again by way of an oral hearing at appeal.

The respondent noted that other Irish case law such as Konadu v Refugee Applications Commissioner and S.U.N. (South Africa) v. The Refugee Applications Commissioner & Ors did not make a blanket determination that wherever an adverse credibility finding was made against an applicant that a s.13(6) finding could not be made. The respondent also relied heavily on the applicant’s significant delay in claiming asylum.

In the judgment the Court held that it was satisfied that this was a case where it was appropriate to permit the applicant to seek certiorari of ORAC’s decision rather than pursue the statutory appeal to the RAT (Refugee Appeals Tribunal). The Court made this finding because “where there are negative credibility findings made against the applicant, the loss of the right to an oral hearing is a serious matter and would put the applicant in a very disadvantageous position in relation to his appeal” (Para 41). It found that given the entirety of the case made by the applicant, in circumstances where the applicant’s personal credibility was in issue, it was disproportionate and unreasonable to make a finding under s. 13(6)(c). ORAC failed to properly analyse the applicant’s explanation for not seeking asylum sooner and thereby deprive him of an oral hearing upon appeal. Therefore the Court held that the ORAC decision must be squashed on that ground.

The second ground of the challenge put to the Court was that ORAC failed to consider the applicant’s explanation for his failure to apply for asylum when he returned from Pakistan in September 2009. The applicant stated he was given an inadequate opportunity to address the issue of his delay in claiming asylum. The applicant further submitted that no reason was given for ORAC’s failure to accept the reasonableness of his explanation for making the application for asylum when he did. The Court had regard to the applicant’s testimony on this matter during the s. 11 interview and the applicant also referred to an affidavit submitted to the Court where he added to his explanation for not claiming asylum sooner. The Court noted that since the reasons in the affidavit were only put before it in the judicial review proceedings and not before ORAC when assessing the asylum application the Court took the view that it could not be relied upon as a means of attacking the Commissioner’s decision. The Court took into account the applicant’s reasons for delay in claiming asylum in that he hoped that his family would accept him and mend relations with him despite his religious conversion and that he spent time making up his mind as to whether to seek asylum in Ireland. It was only when a friend of the applicant returned to Ireland from Pakistan in March 2011 that the applicant realised that his hope of reconciliation with his family was extinguished as his friend told him that his family and religious extremists were still looking for him. The Court found that ORAC did not carry out any analysis of this account nor did ORAC explain why the applicant’s explanation was not found credible. Given the fact that ORAC failed to give this proper consideration the Court ruled that the ORAC decision should be quashed. 

Outcome:

The Court granted certiorari of the recommendation of ORAC and therefore the ORAC decision was quashed by the Court. 

Observations/comments:

The case highlights the problems with s. 13(6) findings in the Refugee Act as amended when the case concerns personal credibility findings as it means they cannot be addressed by way of personal hearing upon appeal. 

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