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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Dikilu & Anor v. Minister for Justice, Equality and Law Reform & Anor [2003] IEHC 40 (2 July 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/40.html Cite as: [2003] IEHC 40

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THE HIGH COURT DUBLIN Case No: 371A/2001
DIKIBIAKA DIKILU MADELAINE DIKILU

APPLICANTS

AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM INTERIM REFUGEE APPEALS AUTHORITY

RESPONDENTS

EX-TEMPORE JUDGMENT OF MS. JUSTICE FINLAY GEOGHEGAN ON WEDNESDAY, 2 JULY 2003

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MS. JUSTICE FINLAY GEOGHEGAN DELIVERED HER JUDGMENT AS FOLLOWS

MS. JUSTICE FINLAY GEOGHEGAN:

The Applicants are two sisters who are natives of the Democratic Republic of the Congo and who came to Ireland with their third sister, Chantal, on 19 May 1997 and sought asylum in this country. They were refused their application for asylum and an appeal was made by all three sisters to a member of what was then the Interim Appeals Authority, the second-named Respondent.

On 31 August 1999 all three sisters received letters with decisions following the appeals. The two Applicants each received a decision in which they were refused their application for asylum and enclosed with their decisions were recommendations from a member of the Authority dated 3 August 1999. The third sister, Chantal, received a decision to the effect that she was to be recognised as a refugee in this country. At that stage the recommendation of the member of the Authority in respect of Chantal was not enclosed.

I am not concerned at this stage with the delay in commencing this application for judicial review in which the leave application was commenced by a Notice of Motion of 6 April 2001. The application in

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respect of the extension of time was initially refused by the High Court and allowed by the Supreme Court. Following the Supreme Court decision on 4 ^-February of this year on consent of the parties made an order granting leave to seek the relief set out in the statement of grounds on the grounds set out therein.

Whilst there are a number of grounds, in reality this application was pursued on the first ground only, namely that the decision contained in each of the recommendations of 3 August 1999 in respect of the two Applicants by the member of the Authority is irrational and unreasonable. The application is grounded upon an affidavit of the first-named applicant of 6 April 2001. A Notice of Opposition has been filed on behalf of the Respondents on27 February 2003. The Respondents have not sought to put in any affidavit in support of the Notice of

Opposition. Insofar as relevant to the single ground pursued, the Statement of Opposition simply denies that the decisions in question are irrational or unreasonable.

The submission made by Mr. Forde on behalf of the Applicants was firstly to the effect that even if this Court is to consider the recommendations of the member of the Authority in accordance with the

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principles in O'Keeffe v An Bord Pleanala [1993]1 IR 39, that in the light of the recommendation in this case of the sister, Chantal, that the recommendations in respect of the two Applicants must be considered to be unreasonable or irrational.

He made as part of that submission a submission to the effect that it is fundamental to the rationality or reasonableness of a decision that a decision maker must treat like as like and submitted that the differences in fact identified by the decision maker in this instance are not such that they could rationally justify the different conclusion, or to put the submission another way that there was no relevant material before the decision maker which supports the differences in conclusion by reason of the factual differences.

Mr. Forde has indicated that if necessary he would also wish to make a submission that the O'Keeffe test was not the appropriate test in asylum matters and by agreement that question was left over until I had an opportunity of reaching a conclusion as to whether or not the Applicants claims that the decisions contained in the recommendation were invalid even if the O'Keeffe test was or was not made out.

Mr. Bradley on behalf of-the Respondents submitted that the O'Keeffe test was the correct approach and

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that the evaluation of evidence was a matter for the member of the Authority and that provided that there was a proper approach to the-evaluation of the evidence that the decision was valid. He referred me in particular to the decisions of Smyth, J. in T.A. V Minister for Justice, a decision of 15 January 2002 and to extracts referred to therein from the House of Lords (Karanakaran) v Secretary for State [2000] 3 AER 449 and also to a decision of Smyth, J. in Fuwa Oladale Olawale V The Office of the Refugee Applications Commissioner and The Minister for Justice, Equality and Law Reform of 3 October 2002.

He also referred me to the decision of Kelly, J. in Sekou Camara v Minister for Justice, a decision of 26 July of 2000 in which Kelly, J. reviews a number of the authorities including 0' Keeffe and the circumstances in which this Court should intervene the decision of an administrative Tribunal on the basis of unreasonableness or irrationality.

The test, I think, may be succinctly encapsulated by the extract referred to by Kelly, J. from the decision of Finlay, CJ. in O'Keeffe at page 72 of that judgment where he said:

"I am satisfied that in order for an applicant for judicial review to satisfy a Court that the decision making Authority has acted irrationally in the sense which I have outlined above so that the court can intervene and quash its decision, it is necessary

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that the Applicant should establish to the satisfaction of the Court that the decision making Authority had before it no relevant material which would support its decision."

This is an approach which was followed by Smyth, J. in the decisions referred to, perhaps put in a slightly different way on occasion, and for example in the case of Fuwa Oladale Oladale Smyth, J. stated following a review of the English authorities:

"In my judgment, the adjudicator is obliged not only to take into account the stated subjective fear(s) of an Applicant, but he must also asses whatever objective evidence of risk is available. Having considered the evidence and documents before the Court, I am satisfied that there was evidence upon which the view (decision/recommendation) formed and impugned could have been arrived at."

The first issue, therefore, I have to consider is whether if one applies these principles, loosely described as the O'Keeffe principles, is was there relevant material before the member of the Authority which supports his conclusion that the two Applicants have not established a well-founded fear of persecution for a convention reason. It appears to me that issue must be considered in the following contexts.

Firstly, in the context of the guidelines of the UNHCR in relation to the process of ascertaining and

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evaluating claims to asylum and these were referred to by Kelly, J. in the Camara decision and adopted by him as representing questions which must be addressed by an examiner and an approach to be adopted.

He refers in particular to paragraph 205 of the handbook which, whilst the focus of Mr. Justice Kelly's judgment related to assessing credibility, is relevant and provides:

"Insofar as the duties of the examiner are concerned that he should:

1. Ensure that the Applicant presents his case as fully as possible and with all available evidence.

2. Assess the Applicant's credibility and evaluate the evidence (if necessary giving the Applicant the benefit of the doubt), in order to establish the objective and subjective elements of the case.

3. Relate these elements to the relevant criteria of the 1951 Convention in order to arrive at a correct conclusion as to the Applicant's refugee status."

In the same decision the second matter referred to by Kelly, J. is a short extract from Goodwin-Gill where the matter was put this way:

"Simply considered, there are just two issues. First, could the Applicant's story have happened, or could his/her apprehension come to pass, on their own terms, given what we know from available country of origin information? Secondly, is the Applicant personally believable? If the story is consistent with what is known about the country of origin, then the basis for the right inferences has

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been laid."

The second matter which must be taken into account in considering the issue I have identified is the same decision by the same member of the Authority on the same day in relation to the sister Chantal. I must observe that when one considers the guidelines to which I have referred that, all three decisions of the member of the Authority in this instance are very short in their analysis and do not clearly distinguish between the issues which have been adverted to and which may be divided into assessing the credibility of the Applicant's story as told, and if the Applicant's story is accepted then checking the subjective fear alleged against objective criteria available from country of origin information or elsewhere.

However, it seems to me that considering the conclusion and recommendation of the member of the Authority in relation to the two Applicants and Chantal, this Court must conclude that:

Firstly, the member of the Authority accepted the actual story of all three sisters as credible. Secondly, from the decision in relation to Chantal, this Court must conclude that the member of the Authority concluded that there was country of origin information or other relevant material available, or

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specific information of which the member was aware, which objectively supported the existence of a well-founded fear of persecution for a convention reason for someone such as Chantal who the member identified as being-a person who was:

"A manager of a well-known MPR store, enjoyed considerable privileges in a time of oppression and was at one time in an intimate relationship with a senior MPR figure and bore him a child."

The issue in relation to the two Applicants' decisions is was there any relevant material to support the conclusion by reason of the factual differences that these Applicants had not established the well founded fear. To consider that, it is necessary to consider all three decisions and to consider the similarity and differences.

The evidence which is recited in all three decisions contains in the first instance a description of the origin and the flight by each of the sisters from Kinshasa on the arrival of the Kabila troops into the city and the fact that they went to Brazzaville and across the border to the Congo. That is identical in respect of all three.

There is then a sentence which relates to their activities in relation to the MPR which is identical in all three, namely that she had been a member of the MPR party and acted in the distributing of

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propaganda and attended in organising various political rallies and all three sisters appear to have been accepted as participating in this way.

There then follows two sentences which are identified differences. In the case of Chantal it was stated:

"That she was a member of the MPR since 1987 and has two children, one of which she had for a senior official in the MPR party who was also the person who was responsible for their shop which ^-effectively was under the control of the MPR party. She is no longer in a relationship with this gentleman who she also says is the ex-governor of Kinshasa."

In relation to the first-named Applicant the relevant further activity which is described is.

"She was active for the MPR among students at the university from where she holds a Degree in Economics. She worked as a shop assistant in a shop which was effectively under the control of the MPR party. Her sister was manager of the shop and had one child by a gentleman who owned it who she says was the ex-governor of Kinshasa."

In respect of the second-named Applicant, it says:

"She was a member of the MPR since 1987 and has four children. She worked in a shop which was effectively under the control of the MPR party and her sister was in a relationship with the gentleman who was the owner of the store and a key person in the MPR and was the ex-governor of Kinshasa."

Following those different statements there was then a

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further relevant piece of information which is referred to in the conclusions which is identical in all three in which it stated:

"Arising from her work in the shop she was extremely well paid compared to over persons in Zaire, and in fact received an extra £1,000 a month for her political activities for the MPR."

There then follows a description of the circumstances in which the sisters left Kinshasa and that is identical in relation to all three.

Insofar as the conclusions are concerned the conclusion in relation to Chantal simply states:

"On balance, I accept as credible the submission that the Applicant may be singled out for treatment or death if she returns as she was a manager of a well-known MPR store, enjoyed considerable privileges in a time of oppression and was at one time in an intimate relationship with a senior MPR figure and bore him a child."

In respect of the first-named Applicant the equivalent conclusion is:

"I am not satisfied that the role of the Appellant in the MPR was a significant one or such to warrant that she would be targeted if she returned to the Democratic Republic Congo. Her position as a shop assistant and not manager in the MPR controlled shop which, while it may have attracted privileges, was not a significant one."

In relation to the second-named Applicant the wording of the conclusion is identical and in each of the

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first and second-named Applicants' decisions it was then followed by a statement:

"Accordingly, I find that the Appellant does not qualify for refugee status on grounds of social class or political beliefs"

Whereas in the case of Chantal the statement says:

"I must therefore conclude that the Appellant has established a well-founded fear of being persecuted as claimed and as defined in ..."

It refers to the Convention.

There is no reference in the decisions in relation to the first or second-named Applicants to any relevant material or country of origin information or special knowledge of the member of the Tribunal which appears to me to support in any way the above conclusions reached in relation to them when one considers those conclusions in the context of the conclusion reached in Chantal's case.

The Respondents have not sought to refer to any evidence which was before the member of the Tribunal but is not referred to in the decision which would support the conclusion.

Accordingly, I have formed the view that there is no evidence to support the decisions that the position

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of the first and second-named Applicants as a shop assistant and not a manager in an MPR controlled shop, whilst it may have attracted privileges, was not a significant one, nor indeed any relevant material which would support what must be the implicit conclusion that the positions identified on the evidence of the Applicants in relation to the MPR were not such that, in accordance with country of origin information or other information, would objectively support a well-founded fear of persecution whilst the position of their sister Chantal did.

Accordingly, the Applicants are entitled to an Order of Certiorari of the decisions contained in the recommendations of 3 June of 1999.

Mr. Forde on behalf of the Applicants made a further submission seeking a remedy of a declaration that the Applicants were entitled to refugee status. I am satisfied that it is not appropriate for this Court, notwithstanding the conclusion which I have reached on the decision, to make such a declaration. It does not form any part of this Court's jurisdiction to consider the merits of the application.

The practice has been in recent times where recommendations of the Tribunal have been quashed by this court or indeed set aside by consent that there

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is an undertaking that the matter will be-remitted to the Authority and considered by another member of the Authority. I will hear Counsel but I assume that such an undertaking will be available in this case.

There will be an Order of Certiorari quashing the recommendations of the member of the Tribunal contained in the decisions of 3 June of 1999 and also the decisions contained in the letters^-of 31 August 1999 addressed to each of the Applicants.