Ireland - High Court, 18 December 2012, T. E. S., M. N. R. and B. F. R. [South Africa] v Minister for Justice and Equality, and the Attorney General [2012] IEHC 554

Country of Decision:
Country of Applicant:
Date of Decision:
18-12-2012
Citation:
[2012] IEHC 554
Additional Citation:
2012 No 429 JR
Court Name:
High Court (Clark J)
National / Other Legislative Provisions:
Ireland - Refugee Act 1996 - Section 2
Ireland - Refugee Act 1996 - Section 5
Ireland - Refugee Act 1996 - Section 13(6)(e)
Ireland - Refugee Act 1996 - Section 17
Ireland - European Communities (Eligibility for Protection) Regulations 2006 (SI No.518 of 2006)
Ireland - Order 84 of the Rules of the Superior Courts (Ireland)
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Headnote: 

The Court granted permission to the Applicants 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 one-parent family. The decision to allow a written appeal was based on the status of South Africa as a ‘safe country,’ and the appeal decision was based on personal credibility and the absence of a nexus to Convention grounds. The Applicants failed in their argument that the absence of an oral hearing may render the appeal decision unlawful by reference to the right to an effective remedy as guaranteed by the Asylum Procedures Directive, because the Applicants had in fact availed of the appeal rather than challenge the fact that it was confined to a written appeal. Leave to seek judicial review was granted on the basis that an aspect of the claim which was disclosed after the first instance decision was not properly considered; that the decision maker made exaggerated credibility findings to the potential detriment of a subsequent subsidiary protection application; and erred in the consideration of country of origin information and evidence of the availability of internal protection.

Facts: 

The Applicants, a South African single-parent family, applied for asylum in Ireland in 2011 on the basis of a fear linked to sightings of a man who the mother identified as the man who had killed her husband in 2001, and who had escaped prosecution for that crime, but was imprisoned for other crimes. They received a negative recommendation from the Office of the Refugee Applicaitons Commissioner (ORAC) at first instance. Because South Africa is designated a "safe country" they were limited to a written appeal only of the negative recommendation. It was disclosed in the written appeal after the first instance decision that the elder child, who was then 16 years of age, suffered a rape the month prior to the family leaving South Africa, along with evidence that the incident was reported to the police. The mother said that she wished to spare her daughter distress by being interviewed about the rape. The appeal decision was based on personal credibility and the absence of a nexus to Convention grounds, as well as the availability of internal protection. The Court found that, “no real consideration was given to the allegation of rape” although country of origin information on the issue was cited. The Applicants argued that there was a lack of an effective remedy because the appeal was written rather than oral; that there was an absence of audi alteram partem owing to the failure to put specific matters to the Applicants and not providing a personal interview; and that inadequate regard was had to submissions and country of origin information furnished.

Decision & Reasoning: 

The decision on appeal “missed the point” in relation to the case that was being made concerning the rape, by linking it to the person responsible for the death of the father, and there was an error of fact in basing a negative credibility finding upon the absence of documentary evidence – which had in fact been put before the decision maker. The decision maker relied on a 2008 report on internal protection from sexual violence which was contradicted a more recent 2012 report, which had been put before the Tribunal and substantial grounds were made out that this assessment was irrational and unreasonable. In the context of a written appeal and finding that there was an absence of a nexus to Convention grounds, the Court queried whether the adverse credibility findings were either fair or necessary. The Court accepted that there were substantial grounds made out that there was an absence of proper investigation of the allegation of rape, and held that there was a weighty argument that this incident was linked to a Convention ground by way of membership of a particular social group. Subject to the consequences of the MM reference in Case C-277/11, the Court was also satisfied that substantial grounds were made out that the “unnecessary, superfluous and exaggerated” negative credibility findings were unreasonable and irrational and carried the potential consequence that they would be relied upon in a subsequent subsidiary protection application so that, for this reason, the findings contravened the requirement of natural and constitutional justice and may be incompatible with the Qualification Directive.

While the decision to grant a written appeal only may have been challengeable at the time it was made (based on the previous case of N. v. Refugee Applications Commissioner and Others [2012] IEHC 338), in the present case, the Applicant availed of the written appeal to the Refugee Appeals Tribunal (RAT), and was now precluded from challenging the appeal decision on that basis.

Outcome: 

Leave to seek judicial review of the RAT decision was granted.

Observations/Comments: 

By contrast, in the case of B. J. C. [South Africa] v The Refugee Appeals Tribunal, The Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, 2010 No 91JR, [2012] IEHC 340, which was decided prior this case, Cooke J. of the High Court granted leave to seek judicial review, holding that the Applicants had shown substantial grounds for the argument that 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, and the appeal decision was amenable to challenge on that basis. The B.J.C. [South Africa] judgment was not referred to in this judgment, and the Judge may not have had it brought to her attention. The author is unaware of any authoritative resolution of the issue at the time of writing.