High Court dismisses judicial review of Refugee Applications Commissioner's recommendation against granting refugee status to Bolivian applicants.

Neutral Citation: [2015] IEHC 182

THE HIGH COURT

JUDICIAL REVIEW

[2010 No. 744 J.R.]

BETWEEN

C.R.D.L AND K.A.S.D (A MINOR) (BOLIVIA)

APPLICANTS

AND

THE REFUGEE APPLICATIONS COMMISSIONER, THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY

AND LAW REFORM

RESPONDENTS

JUDGMENT of Mr. Justice Eagar delivered on the 19th day of March 2015

1. This is a telescoped application for an order of certiorari quashing the decision of the Refugee Applications Commissioner to

recommend that the Applicants not be declared refugees by the third named Respondent. This was issued to the Applicants on the

11th May 2010 and received by them on the 13th May 2010. Also sought was an order of prohibition restraining the second named

Respondent, the Refugee Appeals Tribunal, from hearing the Applicants appeal against the said decision. The Refugee Appeals Tribunal

have indicated that no decision will be taken by the Tribunal pending the determination of these proceedings.

2. The first named Applicant is a citizen the Republic of Bolivia born in Cochabamba on the 18th February 1984. The second named

Applicant is the son of the first named Applicant and is a citizen of Bolivia and born in Bolivia on the 30th August 2006. Both

Applicants had applied for refugee status in the State. The first named Respondent has recommended that the Applicants not be

declared refugees by the third named Respondent.

Background Facts

3. The Applicants consulted a Spanish speaking solicitor Mr Albert Llussá i Torra on the 12th February 2010 and he wrote to the office

of the first named Respondent enclosing a copy of the questionnaire, the birth certificate of the second Applicant and some other

documents including:-

1) Exit visas from Bolivia dated the 19th October 2009.

2) Insurance Cards in relation to a flight from Bolivia to Cairo.

3) One Air France boarding pass for a flight from Paris to Cairo on the 19th October 2009.

4) One Air France boarding pass for a flight from Cairo to Dublin on the 1st November 2009

5) Two Stenna Line return tickets from Dublin to Holyhead to Dublin on the 10th November 2009.

6) Some of Country of Origin Information

4. This letter confirmed that the first named Applicant was a 26 year old Bolivian national and that her son, the second named

Applicant, was a three year old (at the time) Bolivian national born on the 8th July 2006. The first named Applicant married the father

of her child but was abandoned by him shortly after. He said he would go to help his father and he never came back.

5. The first named Applicant is the youngest in her own family. She has one older brother who is married and lives with his other

family and four older sisters. Her father died when she was two years old. Her mother and siblings continue to live in Bolivia.

6. In and around August 2008 the first named Applicant began suffering the harassment of a man. This man harassed her and

threatened her and her child to the extent that she felt forced to leave the country. She moved to Argentina in March 2009 but she

believed that the man traced her there. She returned to Bolivia in July 2009. In September 2009 she was harassed again by the same

man. She found the situation unbearable and decided to flee the country again. She flew to Cairo in October 2009 and shortly after

flew to Dublin. She did not need a visa to travel to the State and she flew using her own Bolivian passport. She was hoping that she

would be allowed to pursue a course of study but the Garda National Immigration Bureau told her that she would have to arrange to

return her son to Bolivia first. As the first named Applicant did not wish to be separated from her child and she was afraid to return to

Bolivia, she decided to make an application for asylum. She does not believe she would be safe in Bolivia. She does not believe that

the Bolivian authorities would protect her from this man.

Questionnaire

7. In her application form she was asked the following series of questions:

Q. “Did you seek the assistance of, or report your fears to, the authorities?”

A. “No”.

Another question asked was: -

Q. “If you did not report it state clearly why you did not.”

A. “Because I do not know his name for fear of reprisals by this man.”

Another question asked was: -

Q. “If there are children/dependents included on this application please give reason why they may have a well-founded

fear of persecution?”

A. “I fear that this man may kidnap my son or hurt myself.”

8. The first named Applicant also indicated that she had paid €750 to a college for the purpose of studying in Ireland.

Section 11 Interview

9. She met with an officer of the first named Respondent for the purpose of an interview under s. 11 of the Refugee Act 1996 (as

amended) on the 21st March 2010.

10. The Applicant said that she spent 10-12 days in Cairo but she felt that the same things were happening, that men were after her

again and the same bullying as took place in her own country occurred.

11. Her ticket from Cairo was bought by a sister’s friend who lives in Spain. She arrived in Ireland on the 1st November 2009 and

applied for asylum on the 3rd February 2010.

12. She was asked why she did not apply for asylum when she was in Ireland from the 1st November 2009 to February 2010 and she

explained that she did not think there was asylum for women like her who were being followed. She thought it was only for political

asylum. She signed up for the Euro College so she would not be here illegally in the country. She was advised by a woman who spoke

Spanish that she should go to Spain because her native language is Spanish. She bought a ticket for Alicante in Spain but when she

got there they sent her back to Ireland.

13. She said that her occupation in Bolivia was that she sold cosmetic products and was also a fruit seller whenever there was a

festival. She was asked who did she fear in Bolivia and she said “A man who is after me. He is after me and he bullies me and

threatened to harm my son and the worst thing is I do not know who he is or where he lives.” This began in the middle of August

2008 around the time of her son’s birthday. She was asked how did the man approach her and she said she was going on a bus with

her beauty products and to help her mother selling fruit. When she was travelling she got into a minibus which was leaving the stop.

Various different people got into the bus. During the journey people were getting off at their destinations and then it was just the

driver and herself alone. He asked the first named Applicant to have a drink with him. She said no and asked him if this is where he

was stopping. He said he would continue with the journey. He invited the Applicant to have a drink with him again. When she asked

how much she owed him for the lift he asked her to have a drink with him. He started touching her and came on to her. She asked

what he was doing and she said she was a married woman with children and he was making movements because he was coming

towards her all the time. She pushed him to the other side of the seat, grabbed her bag and got out his door of the minibus. She

caught a taxi. She said that this was not the first time that this had happened to her. She said that the previous incident had

happened when she had gone to the hospital and a doctor had tried to abuse her.

14. She was asked if she was physically harmed by the man in the bus and she said no. She did not go to hospital. She said that at

the beginning of September she noticed a man was watching her from a green jeep and she explained that was because the box of

products had her address and telephone number on it and also her name.

15. She said that he was watching her where she was living to see if she was going to come out of the house. She said when she

started going out of the house to the shop, she walked in front and this car came along and started up and started to sound the horn

at her and she kept on walking or looking back. She was very tense as a result of this. She was asked did she report the incidents

and she said no because he knew where she lived and she had a son. She also said that if she complained to the police, they would

not do anything. She stated that she did not know the man’s name and did not know where he lived, so she could not really tell the

police much. She said that on the 8th October she was going with her son to the market and saw a taxi which did not have a

registration number, which was strange. She met a woman who went with her on a public minibus and she was very upset and she

phoned her sister and told her what had happened. They discussed making a complaint to the police but the problem was that she did

not know the man’s name. She said that after the 8th October he had telephoned her, telling her he knew that she had a son and

that she was not married. She said that between October 2008 and March 2009 she was approached in November and January and

that it was these incidents which caused her to leave Bolivia. The last call he made to her was in January 2009 and he said he knew

where her son was. She said that after this phone call she was going to the police in February to complain but someone who was in

front of her was asked by the policeman at the desk “How can we make a complaint if we don’t know the name of the man or where

he lives”. The police were shouting at the woman as she did not know his name and she decided to leave the police station and did

not make a complaint. She said she spent three months in Argentina but her landlady (in Argentina) told her that an older man had

come looking for her and she got it into her head that it was the same man.

Section 13 Report and Recommendation

16. The s. 13 report was dated the 23rd April 2010 and the recommendation was that the Applicant had not established a well-

founded fear of persecution and contained a further recommendation that s.13(6)(a) is appropriate to the application. The report

stated that:-

“In order for the Applicant to bring herself under the scope of the Act, the Applicant’s claims must be considered

sufficiently serious by their nature or repetition to constitute a severe violation of basic human rights, in particular the

rights from which derogation cannot be made. However the Applicant has not provided sufficient or any evidence that

her claims amount to persecution as defined by Article 9 of the European Communities (Eligibility for Protection)

Regulations 2006. While the Applicant claims she was harassed by this man she stated she was not physically harmed or

subjected to violence. Given that the Applicant did not provide sufficient evidence to substantiate her claim of

persecution or that she and her son would be at risk of physical harm if they returned to Bolivia.”

It was not accepted that the Applicant’s claims amount to persecution.

17. The recommendation in relation to s.13(6)(a) stated that the application showed either no basis or a minimal basis for the

contention that the Applicant is a refugee and pursuant to s. 13(5)(a) that the Applicant may appeal to the Tribunal under s.16

against the recommendation within ten working days from the sending of the notice and that any such appeal will be determined

without an oral hearing (this Court’s emphasis).

18. Section 2 of the Refugee Act was quoted and it requires that for a person to be considered a refugee they must have “a well

founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political

opinion”. The report also made the point that while the Applicant claimed she was harassed by this man, she was unable to provide

any information including both his name and where he lived. She also did not report the man to the police. The report also made the

point that the first named Applicant appeared to be the victim of an opportunistic attack and that she had not supplied sufficient

evidence that she was targeted for any Convention reason. Section 11B(d) of the Act was mentioned. The view of the first named

Respondent was that that the Applicant’s delay in applying for asylum affected her overall credibility and drew doubt over her claims

that she and her son were at risk in Bolivia.

19. There was then an issue in relation to State protection and internal relocation, and the Country of Origin Information did suggest

that women were second class citizens.

20. Finally, the Refugee Applications Commissioner stated that “the Applicant is claiming a fear of returning to Bolivia due to

criminality. Therefore there is no nexus to section 2 grounds in this case.” The Refugee Applications Commissioner further stated that

“the application showed either no basis or minimal basis for the contention that the Applicant is a refugee.”

21. The report continued “notwithstanding that the Applicant appears to be the victim of an opportunistic isolated attack and she

has not supplied sufficient evidence that shows she was targeted for any Convention reason i.e. race, religion, political opinion, that

would bring her under the scope of the definition”.

22. The recommendation was that the Applicant should not be declared a refugee and there was also a recommendation that s.13(6)

(a) was appropriate to the application.

Submissions by the Applicant

23. Counsel for the Applicant, in this unusual case where there is a judicial review seeking to quash the decision of the Refugee

Applications Commissioner, contended that the finding that the asylum application contained no basis or a minimal basis for the

contention that the Applicants were refugees was unreasonable and emphasised the effect of this decision as being to deny the

Applicants an oral hearing in respect of “credibility” issues.

24. He also emphasised that this raised a minimal prospect of success with the appeal. Counsel on behalf of the Respondent objected

on the basis that this was not a ground which had been put forward in the statement required to ground application for judicial

review. I am satisfied to deal with this aspect of the application. Counsel for the Applicant argues that the first named Respondent

held that the application showed either no basis or a minimal basis for the contention that the Applicant is a refugee. He suggested

that the finding was irrational and unreasonable at law. He argued that the Convention ground/nexus was gender and this required

the intervention of this Court by way of judicial review. He also argued that Irish law must comply with the Procedures Directive and

that s.13 (6) inherently does not accord with the right to an effective remedy under Article 39 of the Directive. He also quoted from

S.U.N (South Africa) v. Refugee Appeals Tribunal [2012] IEHC 338. Here, Cooke J. held that where the negative recommendation is to

be made which would be based primarily on a finding of a lack of credibility there was an obligation to ensure that the appeal to the

Refugee Appeals Tribunal provided an effective remedy as required by Article 39 of the Procedures Directive.

Submissions by counsel for the Respondent

25. Counsel for the Respondent argued that judicial review is a discretionary remedy and that the court should not entertain an

application for judicial review where there is a full and added right of an appeal available. She referred to a number of decisions

including a decision of Hedigan J. B.N.N v. Minister for Justice Equality and Law Reform & Ors (Unreported 9th October 2008) and P.D.

v. Minister for Justice Equality and Law Reform & Ors (20th February 2015), a decision of MacEochaidh J. She sought to distinguish

the decision in P.D. and suggested that it very much depends on the facts of a particular case. The first named Respondent had

understood the claim of the first named Applicant but felt that it did not come within the Refugee Convention, whereas in P.D. a much

broader claim was made by the Applicant for asylum. She also noted that the notice of appeal to the Tribunal identifies that the

Applicant is in a social group comprising of “young, vulnerable, attractive women”.

Discussion

26. The first decision to be made in my view is whether or not the Applicant is being premature in seeking to challenge the decision of

the Refugee Applications Commissioner in circumstances where there is a right of appeal to the Refugee Appeals Tribunal. In the

judgment of MacEochaidh J. in P.D. at para. 1 he states:-

“Should the Applicant be permitted to seek judicial review of the decision of the second named Respondent prior to an

appeal to the Refugee Appeals Tribunal? The consistent jurisprudence of the Superior Courts is that intervention by way

of judicial review in respect of decisions of the Refugee Applications Commissioner is rarely permitted and only in cases

which at least involves errors as to jurisdiction but even then, the court retains discretion to refuse.”

27. MacEochaidh J. reviewed the authorities and set out the principles from the authorities relevant to the proceedings:-

1) The High Court is entitled to grant certiorari or other public law remedy in respect of a decision of ORAC where an

error as to jurisdiction is identified (this Court’s emphasis)

2) The significance of the error will determine whether the court may exercise its discretion to grant judicial review.

3) Not all errors as to jurisdiction attract judicial review.

4) The court must carefully consider the nature of the error in deciding whether the interests of justice require the first

instance decision to be quashed and taken again rather than the error being the subject of an appeal to the Refugee

Appeals Tribunal

5) The court should bear in mind the extent of the Refugee Appeals Tribunal capacity to provide a remedy and reverse

the error (the nature of appeals to the RAT has been fully described by Charleton J. in the Supreme Court in M.A.R.A)

28. The decision of Charleton J. in M.A.R.A (Nigeria) (Infant) v. Minister for Justice Equality and Law Reform [2014] IESC 71 given on

the 12th December 2014 is instructive in that Charleton J. characterises the nature of the functions of the Refugee Applications

Commissioner as a process which is investigative. It is not adversarial or bound by rules or procedure or evidence. Its purpose is to

find the truth by enquiry.

29. The decision of the Refugee Applications Commissioner in this case is not such an error of jurisdiction in my view. The Applicant

has indicated that she is being sexually harassed by an individual person who she does not know. Clearly this man has been involved

in serious criminal conduct and the offences of harassment and sexual assault are widely regarded as serious offences. Nevertheless

his criminal activities do not bring the Applicant into membership of a particular social group or political opinion and the finding by the

Refugee Applications Commissioner of obtaining a fear of returning to Bolivia due to criminality and showing that there is no nexus to

s.2 grounds is in my view a reasonable decision. However that may deal with the application in this case, there are further comments

I would like to make.

30. Section 16 of the Refugee Act 1996 (as amended) does not set out exhaustively the way in which the Refugee Appeals Tribunal

should set out its work. The duty of the Tribunal on appeal is either to affirm the recommendation that refugee status should be

refused or the Tribunal may make a positive recommendation where “it is satisfied, having considered the matters referred to in

subsection (16) that the Applicant is a refugee.” However there appears to me to be a complete opportunity to present, on behalf of

the Applicant in aid of this inquiry, any new facts or arguments and to re-argue the points appealed. The Applicant’s solicitor in this

case has prepared a very detailed notice of appeal with substantial issues as to documentation, and Country of Origin Information and

substantial submissions. It appears to me that there is a substantial onus on the Refugee Appeals Tribunal in deciding a case “on the

papers” to consider the notice of appeal in detail and to respond to the points made in the notice of appeal and not merely to

indicate that they have read the notice of appeal and then proceed not to deal with matters raised in the notice of appeal.

31. Counsel for the Applicant in this case indicated that the failure to have an oral hearing meant in effect that there was very little

possibility of appeal without an oral hearing being successful. However no evidence of this was adduced before this Court. If this is

the case, however, in the appropriate case where this evidence is adduced before this Court I feel that this Court should carefully

consider this evidence. The Refugee Appeals Tribunal must (as an appeal of last resort) be extremely careful in making a decision. It

must act in accordance with the European Communities (Eligibility for Protection) Regulations 2006 which give effect to the Council

Directive 2004/83/EC of the 29th April 2004 on the minimum standards for the qualification and status of third country internationals

(the Protection Regulations) and the Council Directive 2005/85/EC (the Procedures Directive). Whilst the Protection Regulations also

deal with the issue of subsidiary protection they also have relevance to the refugee application and it is the view of this Court that

the Refugee Appeals Tribunal must fully comply with the protections set out in these Regulations.

32. Article 39 of the Procedures Directive provides for appeals. Again it appears to me that the High Court in the exercise of the

consideration by way of judicial review of an appeal (on the papers) will be assiduous in ensuring that these appeals are conducted

fairly and in accordance with law.

33. For the reasons stated above I refuse the application for certiorari of the decision of the Refugee Applications Commissioner and

the matter can now proceed to be heard by the Refugee Appeals Tribunal in accordance with law.