Evidence on 'safe countries' must be considered
S (a minor) -v- Refugee Applications Commissioner Ors
Judgment was delivered on November 21st, 2008 by Ms Justice Irvine
The applicant had established substantial grounds to assert that the respondent’s decision should be quashed due to her failure to furnish a reasoned explanation for her rejection of the independent, authoritative and up-to-date country of origin documentation submitted on the applicant’s behalf.
The case concerned an application for judicial review of a case concerning refugee status of an infant, born on January 2nd, 2006 in the Rotunda Hospital. The boy in question is a citizen of Croatia although he never lived there. Both his parents are ethnic Serbs and Croatian nationals.
On September 4th 2006, the applicant’s mother began the proceedings on his behalf. She said he would be persecuted and severely discriminated against on account of his ethnicity should he be deported to Croatia. Both mother and father had appeals pending before the Refugee Appeals Tribunal.
The mother further stated that both she and the applicant’s father were forced to flee to the country from Croatia in mid-2005, in the face of persecution based on their ethnicity and said neither she nor her family received adequate police protection from persecution.
Arising from these personal experiences, she argued on the applicant’s behalf he has a well-founded fear of being persecuted on his arrival in Croatia.
Croatia had previously been designated as a “safe country” of origin under the Refugee Act 1996. Therefore, the applicant does not enjoy the right to an oral hearing before the Refugee Appeals Tribunal, in the event of the Refugee Applications Commissioner deeming him unqualified for refugee status.
An application for refugee status was made on the applicant’s behalf to the office of the first respondent in June, 2006. His mother attended for interview on his behalf on August 1st, 2006.
She complained of potential discrimination for Serbian children in the education system, particularly the likelihood that the applicant would not be allowed to learn in his mother tongue. Secondly, she referred to her belief that Croatian nationalists would verbally and physically abuse her son were he to reside in the state, and he would not enjoy the same rights afforded his peers.
Notes of that interview confirm that several country of origin documents were supplied to the investigating officer by the applicant’s solicitor. Extracts from these documents were brought to the attention of the officer saying there had been a serious deterioration in 2005 as regards human rights in Croatia.
Prior to the preparation of the report, the applicant’s solicitor wrote to the office of the first named respondent, complaining that the applicant had not been permitted during the interview to describe how she and her family had been persecuted in Croatia because of their ethnicity.
She was told to confine her answers to her son’s circumstances, even though she felt that her experiences were pertinent to the interviewer understanding her reasons for applying for refugee status for both herself and her son.
The applicant maintained that the officer erred in law and he also challenged the constitutionality of Section 12 (4) of the Refugee Act relating to the designation of safe countries of origin. He complained that when a country is declared safe, there are no criteria relating to the retraction of such a declaration.
Counsel for the applicant maintained that the legislature divested itself of its legislative function in an impermissible manner without setting out relevant principles or policies to which the Minister might have regard.
The applicant also challenged the absolute prohibition on an oral appeal where the country of origin had been designated safe, submitting that the individual circumstances in this case could only be properly determined by way of an oral hearing.
The respondent argued that the fact that the first-named respondent had the right to appeal to the Refugee Appeals Tribunal, but had not exercised that right, disentitled him to apply for a review of the decision of the Refugee Applications Commissioner.
“I am not convinced that the statutory procedure available for the correction of an error made by the primary decision maker, ie the commissioner, under the Refugee Act [as amended] is adequate to meet the justice of the case should I conclude that the applicant has substantial grounds for contending that such decision should be quashed,” Ms Justice Irvine said.
If the applicant were to be refused the right to judicial review he would lose the right to present oral evidence. Critical to this would be evidence of the mother of her own persecution and that of the father and extended family.
On the facts of this case, the applicant would be prejudiced if his rights were to be confined to an appeal on paper, and the court retained a full and free discretion on the application, Ms Justice Irvine said.
The officer of the first named respondent was bound to take into account the most recent, accurate and up to date information on the country of origin. If there is conflicting information, the respondent is obliged to provide a reasoned basis for any conclusions emanating from this conflicting documentation.
A substantial amount of country of origin information was submitted by the applicant, dealing with the human rights of ethnic minorities in Croatia. This came from a Human Rights Watch report in 2006, an Amnesty International report for 2005, a report of the US State Department for 2005 and a report of the International Helsinki Federation from June 2006. It all supported a serious deterioration of the situation in Croatia during 2005.
The officer had also heard evidence of the persecution of the applicants mother and extended family.
Yet in her report “in stark contrast to the above oral and documentary evidence, [she] concluded that the applicant’s fear of persecution based on his ethnicity was not well-founded.”
She appended to her decision a 2004 document from the Croatian government addressed to the Council of Europe, which was substantially less up to date than the documentation submitted by the applicant.
She also appended two pages from the 19-page US State Department document referring to the Croatian government’s apparent increased willingness to prosecute war crimes committed by ethnic Croats.
Ms Justice Irvine said she was forced to conclude the applicant had substantial grounds to be concerned the officer of the respondent had not considered all country of origin evidence presented to her and if she had, the decision was perverse in the face of compelling and authoritative evidence.
She said the applicant had provided substantial evidence to quash the officer’s decision as she had failed to provide the court with a reasoned explanation for her rejection of the evidence.
However, she did not grant the applicant permission to pursue the claims that his application was dealt with unconstitutionally. She declared it a remedy of last resort and said when other remedies are still to be explored, it should not be granted.
She did recognise the fact that the applicant had been curtailed in his giving of evidence and gave him leave to apply for an appeal of the final decision of the officer, were it to be unfavourable. The full judgment is on www.courts.ie
Mark de Blacam SC and Michael Lynn BL, instructed by Conor O’Briain, for the applicant; David Conlan Smyth BL, instructed by Chief State Solicitor, for the respondent