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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A. (R.) v. Minister for Justice Equality and Law Reform [2003] IEHC 102 (5 November 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/102.html Cite as: [2003] IEHC 102

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THE HIGH COURT

JUDICIAL REVIEW

2002 JR 805

BETWEEN

R A

APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENT

JUDGMENT of O'Sullivan J. delivered the 5^th November day of November, 2003.

This is an application for liberty to bring Judicial Review proceedings challenging a decision of the Refugee Applications Commissioner dated 31^st May, 2001 refusing the applicant refugee status pursuant to a report dated 14^th May of the same year recommending such a decision. A further challenge is made to the decision of the Refugee Appeals Tribunal dated 19^th September, 2001 further to a report recommending such a decision dated 18^th September. A further order is sought directing the respondent to form an opinion that if the applicant is returned to Georgia his life liberty or person is under threat. Finally there is a claim for a declaration that all recommendations of the Refugee Appeal Tribunal should be published. A challenge to detention of the applicant and appropriate orders in connection therewith was not made because at the time of the hearing of this application the applicant had been released. As a preliminary there is an application for an extension of the strict time limit (14 days) allowing this application to be made.

Background

The applicant sets out his claim for refugee status in his own words in his answer to the questionnaire provided. He says the whole story started in 1990 and alludes to discrimination against Armenians in Georgia. He says his mother was dismissed from her position as a paediatrician in 1995 for unknown reasons and she worked at menial tasks to pay for his education in the Art Academy. His progress was hindered because he was Armenian. He then passes to 1998 when two Georgian men came and demanded that they sell their house. His mother refused and she was later assaulted and reluctantly disclosed that it was the same two Georgians who had demanded the sale of the house. They informed the police but the culprits were never found and he expressed the view that he was sure they were not looking for them. One morning going to school two persons assaulted his mother and she became ill and he had to sell family jewellery to buy medicine for her, she got a stroke and died and he had to give away an antique in exchange for the costs to have her buried. He then was left alone for a year befriended only by his dog after which a letter was dropped again demanding for the house to be sold for $2,000 and threatening him with death if he refused. He went to the police but nobody listened to him there. Then the same two Georgians appeared one night at his house and he was frightened. He did not go out but next day his dog was dead in the yard. Subsequently in the middle of the night his house was burned down and he took his passport and jumped out of the window then two days later one of the Georgians who had beaten me came and offered $2,000 to get him out. His was convinced that they were the same two that set fire to the house and poisoned his dog. He said it was pointless to go to the police as they would not have listened to him. He decided to flee. Later he paid $1500 to get a truck ride to a destination which he discovered was this country when he arrived. He submitted the claim thus summarised and was given a full interview.

A report was prepared following this which stated that the main reason he left Georgia was because of threats to his life and refers to his account which is acknowledged to be a sorry tale evocative of the greatest sympathy. The report points out that his mother died of an attack by two men and that the applicant had said in interview that she had not been taken to hospital because she had no money. The report points out that the threats by the two men who allegedly wanted to buy his house is a civil or criminal matter and notes that according to documentation submitted by the applicant the culprits have not been found. This documentation comprised apparently some kind of police report but because of its configuration and contents and phraseology the report casts doubt on its authenticity. The recommendation is that the application is manifestly unfounded because on its face it shows no grounds for the contention that the applicant is a refugee. This is clearly on the basis that the reason why he fled Georgia is because of threats to his life arising out of the ends described which were characterised in the report as a civil/criminal matter.

The applicant exercised his rights of appeal wherein his case is summarised and a report dated 18^th September, 2001 was prepared by a member of the refugee Appeal Tribunal. This report, once again, summarises the applicant's history and concludes that the persecution which the applicant describes does not relate to a convention reason. It says:

"It appears from the evidence adduced that the attacks and the threats to which the applicant and his mother were subjected by two Georgian men did not occur because the applicant and his mother were Armenian but because the main wish to purchase their house in order to erect a petrol station on the site."

It refers to the police report and concludes - somewhat differently from the report at the earlier stage - that it appears that the applicants complaints were taken seriously (by the police) authorities. This report also notes that at the interview the applicant said that he did not relocate into Armenia because he did not know anyone there and with so little money he could not do anything in Armenia and concludes that the applicant's departure from Tbilisi was motivated by economic considerations. This report refers to objective evidence that Armenians' have a self sufficient autonomous subculture in Georgia and also to the fact that the report of the roving attached miss to Georgia undertaken by the Danish immigration services had been taken into consideration. This was not exhibited and I requested a copy of this from counsel for the respondent as it seemed to me appropriate that I be aware of its contents. This was furnished during the course of the hearing before me and the report where relevant notes that the Armenians do indeed have a self sufficient subculture in Georgia and that their representatives acknowledge that there is no persecution but there are difficulties for them on an economic basis. It states that representatives of the Armenian minority think that the problems encountered by Armenians in Georgia are to a large extent the result of the country's economic problems.

Following this report the Refugee Appeals Tribunal determined to refuse the applicant's application for refugee status. In turn the applicant applied to the respondent to be left, notwithstanding this decision, to reside in this country on compassionate grounds. In support of his last application he presented many letters indicating that he was well respected and well liked member of the artistic community in this country and on 21^st August, 2002 this application was considered and there was a recommendation that no humanitarian considerations disclosed on the file would lead the writer to conclude that the applicant should note be repatriated to Georgia. It was noted that the applicant had not given credible evidence supporting a suggestion that this life or freedom had been threatened by the police or State authorities. Nor had he given any objective basis for establishing a fear of persecution. The applicant's request for permission to stay in the State on compassionate grounds was unsuccessful and a deportation order was made by the respondent on 9^th September, 2002 and notified on the 13^th. These proceedings were initiated on 5^th December, 2002 that is almost 12 weeks later. During that time the applicant's case was under consideration by his lawyers and for two weeks of that time he was, I am told, in Cloverhill Detention Centre. I was not given a clear week by week account of the reasons for the lapse of time between 15^th September and 5^th December other than that to which I have referred.

Submissions

Briefly described the applicant's counsel submits that the conclusion that his application was manifestly unfounded was irrational I gathered on the basis that once it was possible that his story could be perceived as an account of persecution (in the sense that the police authorities had failed to process his complaint against the two Georgian attackers because he was Armenian) that therefore it was irrational to use a process which denied him a right to a hearing. It was also submitted that inferences were drawn by the authors of the two reports referred to which were adverse to the applicant and that these inferences could only be relied upon if they had first been notified to the applicant for his comment a failure to do this was a breach of the "audi alteram partem" rule. A further complaint made was that the respondent authorities failed to take due account of the fact that the applicant was a 17 year old orphan and that the experiences described by him would have genuinely created a well founded fear of persecution or assault of which they failed to take note.

A further technical complaint was that the transcript of his interview should have been attached to the report and determination but this was not done.

No complaint was made to the effect that the applicant had not been given the account of his interview: on the contrary I was informed that the practice is that the copy of the interview had been given to the applicant. With regard to the appeal procedure it was submitted that a detailed point by point appeal with grounds had been submitted and that fair procedures require a point by point reputation of these which was not done in the relevant report. The same point was urged with regard to adverse inferences to the effect that these could only have been relied upon if they had been submitted to the applicant for comment first. Final, self devoutly technical point was to the effect that the report concluded with a form of words which was not a statutory form of words in the sense that the relevant statutory provision authorises the Appeal Tribunal to "affirm" the report of the Refugee Applications Commission or set it aside whereas the Appeals Tribunal had said that it was of opinion that the application was manifestly unfounded.

A further point was made that the Minister had not duly exercised his jurisdiction in relation to the prohibition against refoulement. Finally it was submitted that the applicant was entitled to a declaration from this court to the effect that as a matter of fair procedures he was entitled to publication of the Appeal Tribunal decision which were favourable to applicants in the sense that they lead to a declaration that the applicants were refuges so that future applicants could know the standard of proof required in order to achieve refugee status.

In response I was referred to the following observation of Denham J. in S. v. Minister for Justice Equality and Law Reform and Others [2002] 2 I.R. at 167 where she said:

"The delay in issue is essentially delay by legal advisors. Legal advisors have a duty to act with expedition in these cases. In general delay by legal advisors will not prima facie be a good and sufficient reason to extend time. Circumstances must exist to excuse such a delay and to enable the matter to be considered further."

It was submitted that no such circumstances had been disclosed or proved to the court. It was submitted that the court should have regard to the period of delay and it was submitted and noted that there was no evidence that the applicant had formed an intention within the relevant statutory period (14 days from the 15^th September, 2002 to take the most favourable – i.e. latest – date from the applicant's point of view).

With regard to the subsistent points made it was submitted that the VZ case ([2002] 2 IR 135 at 175) established that in irrationality Judicial Review challenges in these cases the O'Keeffe v. An Bord Pleanála tests applied. Applying this test there was clearly evidence which led to the conclusions grounding the decisions challenged which could not therefore be described be as irrational in the legal sense. Counsel for the respondent described as complaints rather than effective challenges to the legal validity of the decisions impugned the other criticisms made in the argument of counsel for the applicant. With regard to the challenge on refoulement it was submitted that the obligation is on the Minister under section 5 not to deport an applicant for asylum if he is of opinion that the person is likely to be subject to a serious assault upon return. Counsel submitted there is no evidence that the Minister had such an opinion.

Conclusions

In my view having regard to the observations already cited from Mrs. Justice Denham in S. v. Minister for Justice and the period of delay from the latest of the decisions impugned it seems to me prima facia – by which I mean in the absence of substantial grounds for contending that the decisions are invalid – the applicant should be refused liberty to apply for Judicial Review on the grounds of delay. This application was made almost 12 weeks after the latest of the impugned decisions was communicated that is by a period of time comprising six times the statutory time limit. It does appear to me that in the absence of substantial grounds the court should not extend this time period.

I turn, however, to consider the substantial grounds contended for by the applicant. It seems to me beyond argument that there was material before the relevant authorities justifying the conclusions which they reached. It is not for me, of course, when dealing with an irrationality challenge to weigh up these grounds myself. I do think, however, that the court should not simply sit back and read without any element of real scrutiny the poor process which lead Buzari to the relevant conclusions. I agree with my colleague Ms. Justice Finlay Geoghegan that whilst the court does not itself make a decision or weigh up, so to speak, the decision made, it should in an appropriate case satisfy itself that the procedures and steps taken by the decision making authority were appropriate in all the circumstances which include the case made and the basis for the case made by the applicant: and the circumstances further include the status of the applicant which in this case means a consideration that he was a 17 year old orphan with a history which he presented as summarised above.

It is for the foregoing reason that I ask counsel for the respondent to produce to me the report of the roving attaché mission to Georgia undertaken by the Danish Immigration Services because I wanted to see for myself whether this gave an objective reference by which the applicants fear could be adjudged to be well founded – that is, indeed, if it was a fear based on a "convention ground" at all in the first place.

Having seen that report it does seem to me that the steps taken by the relevant authorities were indeed appropriate and accordingly I am satisfied that applying the relevant test it cannot be said that their conclusion was irrational.

It seems to me further that if the foregoing analysis is correct than it is the duty of the authorities when considering an application for refugee status not only to test the applicant's account by whatever means seems appropriate but also, of course, to draw inferences from all the information available. It seems to me wrong in principle therefore, to argue that those inferences cannot be relied upon unless first notified to the applicant for his comment. Therefore I reject this argument as contrary to principle. I cannot accept, ether, that the fact that the applicant was 17 and indeed an orphan at the time of his application was something that was not appropriately considered by the respondent authorities. Even accepting that his fear of the two attackers of his family and home was genuine and even more disturbing than would have been the reaction had he been older (if that indeed be the case) this does not mean that therefore his fear becomes a fear for a "convention reason" as distinct from some other reasons: in this case a reason relating to his civil dispute with the two alleged wrongdoers.

I accept the submission on behalf of the respondent that it is not necessary in dealing with an appeal to refute point by point and paragraph by paragraph the submission made by legal representatives on behalf of the appellant. So long as the points in the appeal are appropriately dealt with then there is no need in my view to follow a particular format for scheme. The appeal must be considered within the statutory provisions and the fact that the report based on the appeal does not follow the exact scheme of the appeal itself does not mean that it is thereby in breach of the statutory requirements. I reject the submission advanced that the expression of the conclusion of the report in the terms of an opinion as distinct from using the phraseology that is affirmed the decision at first instance means that is invalid. This must be a point without any substance.

With regard to the point on refoulement no submission was made that section 5 (2) of the Refugee Act 1996 refers to any assault as distinct from an assault on convention grounds. In the present case counsel for the respondent has said that there is no evidence that the Minister was of the opinion that the applicant if returned would be subject to a serious assault and therefore there can have been no breach of this subsection. In my view the contention that there is a breach of section 5 has not been made out.

The applicant sought a declaration from this court that he is entitled (with others) to the publication of decisions in cases where applicants for refugee status have been successful so that he (and others) can know the standard of proof required to achieve a favourable decision in his own case. This submission was made without any supporting authority and purely by reference to general principals of fairness and even handedness. Counsel for the respondent described it as a complaint but not a proper challenge to the validity of the decisions.

I do not agree that the applicant is entitled to such a declaration. It will be clear from the foregoing that I disagree with the contention that there are substantial grounds for bringing Judicial Review proceedings and therefore in the present case certainly I cannot see that such a declaration could avail the applicant. Accordingly I refuse it.

In conclusion I should mention that the applicant relied on Horvath v. Secretary of State for the Home Department ([2000]: 3: A.E.R: 577) or in the House of Lords held that in the case of an allegation of persecution by non-state agents (in this case the two alleged attackers) the word "persecution" in the relevant convention implied a failure by the State to make protection available against such ill treatment or violence suffered by such as the applicant. The applicant's counsel submitted that the alleged failure of the police authorities to properly investigate his complaint against the culprits who had not been found showed anti-Armenian discrimination within the meaning of this authority.

This point was made by counsel in reply. It seems to me,

Counsel for the respondent referred to the following passage in the same case from the judgment (of the Court) of Lord Hope:

"In order to satisfy the fear test in a non-state agent case, the applicant for refugee status must show that the persecution which he fears (that is persecution from non-state agents) consist of acts of violence or ill treatment against which the State is unable or unwilling to provide protection. The applicant may have a well founded fear of threats to his life due to … isolated acts of violence or ill treatment for a convention reason which may be perpetrated against him. But the risk, however severe, and the fear, however well founded, do not entitled him to the status of a refugee. The convention has a more limited objective, the limits of which are identified by the list of convention reasons and by the principle of surrogacy."

In the present case it cannot be said that the applicant has established an inability or unwillingness on the part of Georgia to protect him from Acts of violence against the alleged culprits referred to in his history. But there is an even more fundamental point already dealt with: these acts of violence are not for convention reasons at all but simply arising out of a civil dispute between the alleged culprits and the applicant and his family.

For the foregoing reasons I decline to extend the time for the bringing of a Judicial Review leave application.