Ireland - High Court, S.U.N. v Refugee Applications Commissioner & ors [2012] IEHC 338

Country of Decision:
Country of Applicant:
Date of Decision:
30-03-2012
Citation:
[2012] IEHC 338
Court Name:
High Court (Cooke J)
Keywords:
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention > Art 3
International Law
International Law > 1951 Refugee Convention
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Recital 21
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms
Council of Europe Instruments
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Recital 27
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 2 > Art 2 (e)
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 2
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 15 > Art 15.3
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 15
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 30
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 39 > Art 39.3
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 39
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 13
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Annex II
National / Other Legislative Provisions:
TFEU - Art 288
Ireland - Constitution - Art 40.3
Ireland - Constitution - Art 40
Ireland - Constitution - Art 30
Ireland - SI 714/2004
Ireland - Refugee Act 1996 - Section 2
Ireland - Refugee Act 1996 - Section 11
Ireland - Refugee Act 1996 - Section 11(a)
Ireland - Refugee Act 1996 - Section 13(5)
Ireland - Refugee Act 1996 - Section 16(1)
Ireland - Refugee Act 1996 - Section 16(3)
Ireland - Refugee Act 1996 - Section 16(5)
Ireland - Refugee Act 1996 - Section 17(1)
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Headnote: 

The High Court held that in a case where a negative recommendation in a first instance application for asylum was based exclusively or primarily upon a finding of a personal lack of credibility, there is an obligation to allow an oral appeal in order to provide an "effective remedy," in the sense of Article 39 of the Asylum Procedures Directive, notwithstanding that the Applicant is from a “safe country” and the legislation allows for limiting an Applicant to a written appeal only in those circumstances. For the same reasons, to allow an oral appeal is also required by the right to fair procedures contained in Article 40.3 of the Constitution of Ireland.

Facts: 

The Applicant, a South African national, applied for asylum in Ireland on the basis that he was a member of the Venda ethnic group who were the target of criminal gangs of Zulu ethnicity, and he received a negative recommendation from 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 rather than an oral appeal, owing to the powers to so direct afforded by 13(5) of that Act. The Court considered it clear that the main reason for the negative recommendation was the Applicant's personal credibility. The Applicant sought declarations which went to the legality of the designation of South Africa as a safe country - in terms of both the legality of the power, and the manner in which the power was exercised. However, the Court considered only a preliminary issue based on the facts of this case, as to whether the right to an “effective remedy” under the Asylum Procedures Directive, or the right to fair procedures under the Constitution of Ireland, are respected where personal credibility is exclusively or primarily the reason for a negative finding, but an appeal is directed to be a written appeal only owing to a safe country designation.

Decision & Reasoning: 

The Court noted that the decision was made prior to the date by which the Asylum Procedures Directive was to be implemented on 1st December 2007, but found that as the national legislation was construed as being already compliant with the Directive regarding the elements of this claim, the relevant date to interpret the national legislation by reference to the Directive was from the twentieth day following its publication on 13th December 2005. The application in this case was made in January 2007, and was therefore covered by the Directive.

Having considered the language of the relevant provisions, the Court held that 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) prescribes the possibility of a written appeal only (including that the Applicant is from a “safe country”) and that such a finding was not obligatory.

Secondly, 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 provides an "effective remedy," in the sense of Article 39 of the Asylum Procedures Directive, and may thus require an oral appeal notwithstanding that the Applicant is from a “safe country” in circumstances where the remedy must be effective to rectify the basis upon which the claim has been rejected, which in this case required an opportunity of persuading the deciding authority on appeal that the Applicant was personally credible.

From the conclusion the Court reached in relation to Article 39, it was held to effectively follow that, for the same reasons, the question contained in the preliminary issue was to be regarded as being unfair to a degree which is also incompatible with the guarantee in Article 40.3 of the Constitution of Ireland to fair procedures.

Outcome: 

The preliminary issue was decided in the Applicant’s favour, and the Court would hear the parties as to whether such a finding was sufficient to make a final order in favour of the Applicant.

Observations/Comments: 

The question of whether a decision of ORAC could be quashed on the basis set out in this decision after an Applicant had availed of the right of appeal, as well as the question of whether the subsequent appeal could be quashed as a result of the similar facts, was considered in the later 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.

Case Law Cited: 

ECtHR - Silver v UK, Application No. 5947/72

CJEU - C-29/84, Commission v Germany

Ireland - Glover v BLN [1973] IR 388

Ireland - Re: Haughey (1971) I.R. 217

CJEU - C-248/83 Commission v Germany

Ireland - AD v Refugee Applications Commissioner [2009] IEHC 77

Ireland - Dokie (a minor) & Ajibola v Refugee Applications Commissioner & Ors, (Unreported, High Court, Cooke J., 19th January, 2010)

Ireland - Moyosola v Refugee Applications Commissioner [2005] IEHC 218

Ireland - P.I.E. v Refugee Appeals Tribunal [2008] 1EHC 339

Ireland - V.Z. v Minister for Justice, Equality and Law Reform [2002] IR 135