High Court allows certiorari against Refugee Tribunal for failing to consider untranslated documents under Refugee Act 1996.

This judgment is circulated in redacted form to avoid identification of the parties

Neutral Citation Number: [2007] IEHC 257

THE HIGH COURT

JUDICIAL REVIEW

2004 No. 205 J.R.

BETWEEN

T.N.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

THE REFUGEE APPLICATIONS COMMISSIONER

AND THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

Judgment of Ms. Justice Finlay Geoghegan delivered 30th July, 2007.

1. The applicant is Romanian. He, his wife and daughter came to Ireland in 2002. He and his wife with the assistance of Cusack

McTiernan Solicitors made applications for declarations of refugee status in April, 2003. In January, 2004 the Refugee Applications

Commissioner (the Commissioner) issued reports pursuant to s. 13 of the Refugee Act, 1996 (as amended) recommending in each case

that the applicant not be granted a declaration of refugee status. The applicant and his wife appealed to the Refugee Appeal

Tribunal. Section 13(5) of the Act of 1996 applied to such appeals for the reasons set out below and accordingly such appeals are to

be determined without an oral hearing.

2. On 27th February, 2004 the Tribunal affirmed the recommendation of the Commissioner that the applicant should not be declared to

be a refugee. This decision was issued in reliance upon the decision of Mr. Eamonn M. Barnes, the Member of the Tribunal of 20th

February, 2004. A similar decision was issued in respect of the applicant’s wife.

3. The applicant and his wife each commenced an application for leave to issue judicial review by a notice of motion dated 11th

March, 2004. By order of the High Court (White J.) of 6th March, 2006, leave was granted in each set of proceedings to seek the

reliefs set out in an amended statement of grounds dated 3rd March, 2006 upon the grounds set out therein.

4. Both sets of proceedings came on for hearing before me. It was agreed that the same issues arose in both sets of proceedings.

Further, that the applications should be considered and determined by reference to the documents and facts expressly set out in

these proceedings. The parties agreed that my decision in these proceedings would apply to and determine the proceedings brought

by the applicant’s wife, [ ] (2004 No. 204 J.R.).

5. In the order granting leave, the Refugee Applications Commissioner was joined as a notice party and leave was granted to

challenge the decision of the Commissioner reflected in the report issued under s. 13 of the Act of 1996 in January, 2004. At the

commencement of the hearing I was informed by counsel for the applicant that he was not pursuing a challenge to the decision of the

Commissioner and no relief was being sought against the Commissioner. The respondents had been informed of this position. Further, I

was informed that certain of the other grounds were not being pursued. The relief and grounds pursued are those which follow.

6. The principal relief pursued is an order of certiorari of the decision of the Tribunal of 27th February, 2004 in reliance upon the

decision of the Member of the Tribunal of 20th February, 2004. It is submitted that the Tribunal in determining the appeal acted in

breach of the applicant’s right to have the appeal determined in accordance with the principles of constitutional and natural justice

and fair procedures. It was also submitted that the Tribunal acted in breach of its obligations under s. 16(6)(e) of the Act of 1996.

The alleged breach is the failure by the Tribunal to consider nineteen of twenty-nine documents submitted by the applicant in support

of his application for a declaration of refugee status in the circumstances set out below.

Relevant background facts

7. The following are the facts as alleged and disclosed by the applicant. The applicant lived all his life in Romania until July, 2000 when

he was obliged to leave for his personal safety. He was employed by Romanian Railways [ ] from approximately 1980 until 1997. By

1991 he had qualified as a locomotive driver. For reasons, partly of health, in 1994 he changed and worked as the manager of a

railway station restaurant.

8. During his employment with [ ] the applicant became aware of significant corruption within the [ ] system and that the transport

police, a separate section of the police force, used their positions of authority to extort money from various sections of the national

railway. He experienced this as part of his work as manager of the railway restaurant from 1994.

9. Subsequent to the fall of the Ceauºescu regime he initially joined the National Liberal Party and then the Partidul România Mare

(Greater Romania Party). One of the main aims of this party was to root out the corruption alleged to be endemic in Romanian life.

The applicant was an active member of such party and spoke out against corruption. The applicant was an active member of the

trade union movement and in 1996 founded a trade union for catering workers of the railway company.

10. In 1997 the [ ] decided to sell their restaurants through a franchise arrangement. The applicant purchased the lease of two such

restaurants and employed certain former staff of the [ ] to work in the restaurants.

11. The applicant was then subjected to constant harassment from the transport police, including the instigation of complaints

against him, the opening of a criminal file and the organisation of a media campaign against him. During this period of harassment he

was informed that if he gave up his trade union membership, his political agitation and paid money to the police that his complaints

would go away. The applicant made complaints about police corruption which he alleges were not investigated properly. In 2000 he

threatened to complain to an international body outside of Romania. Shortly after that he was accosted by a policeman who pointed a

gun at him and threatened that if he did not withdraw all his complaints, give up his trade union activities and political party that his

family would be killed. Two days after this the applicant fled to Italy where he obtained leave to stay on humanitarian grounds for one

year only. His wife and daughter joined him in Italy in October, 2000. Whilst in Italy he alleges that he became aware through the

Romanian community where he was living that a Romanian policeman was making enquiries about him. He believes this to be the

policeman who threatened him with a gun. His leave to stay in Italy was not renewed and he came with his wife and daughter to

Ireland in September, 2002.

Application for refugee status

12. The applicant did not speak English when he arrived in Ireland. In December, 2002, he was introduced to Cusack McTiernan

Solicitors by a client of theirs. Mr. Felix McTiernan, solicitor of that firm, in his affidavit states he was unable to see him until January,

2003. Thereafter he arranged at his expense to obtain the services of an interpreter and took detailed instructions from the applicant

and assisted him in preparing an application for refugee status.

13. The applicant with the assistance of Mr. McTiernan completed the questionnaire issued by the Office of the Refugee Applications

Commissioner (“ORAC”) on 25th April, 2003. The claim made is a fear of persecution from the transport police in Romania supported by

the Ministry of Transport and the Ministry of the Interior. It is alleged that the reasons for which he had been persecuted are that, as

leader of a trade union and a member of an opposition political party, he spoke out against corruption and refused to be part of it.

The detailed information supplied in support of his claim included an eight-page detailed statement referred to as Schedule A and

twenty-nine documents.

14. The information on the standard form questionnaire of ORAC envisages that documents would be submitted by an applicant. The

instructions at paragraph 5 state “If you wish to rely on documentation you should provide this as early as possible”. Question 23

asks “Do you have any other documentation in support of your application?”. It then directs an applicant to list the documents

submitted. In response to this question the applicant herein stated “see attached list”. Twenty-nine documents were listed in the

attached list. All the documents were in Romanian.

15. The applicant was interviewed on behalf of the Commissioner in accordance with s. 11 of the Act of 1996. He was not asked any

questions about the documents submitted. The documents had not been translated into English prior to the interview.

16. The printed questionnaire form contains the following statement on p. 22:

“All the information you provide in this questionnaire will be considered in arriving at a final decision on your application.

You should give as much detail as possible and be completely truthful in the information you provide.”

17. At p. 27 of the interview notes the member of ORAC who conducted the interview records:

“Applicant stated he feels this interview as very quick.

I have informed him not only will his interview be taken into consideration, but his questionnaire, 8 pg submitted & his

documents submitted.” (sic)

18. At p. 29 of the same interview notes the following comments of the applicant’s solicitor who was present are recorded:

“- Regarding Booklet of Documents.

- Had been in contact with ORAC for these to be translated.

- He was told by this office any relevant documents would be translated @ a later date.

- Solicitor feels all these documents are relevant to the applicants claim for Refugee Status.

- Solicitor has said he feels these documents should be translated if a decision is negative as they in our submission

the content of these documents are relevant” (sic)

19. Prior to the preparation of the s. 13(1) report the list of twenty-nine documents and ten of the documents were translated into

English. The remaining nineteen documents were not translated. The choice of documents to be translated was made by an official in

ORAC.

20. The recommendation made under s. 13(1) was that the applicant should not be declared to be a refugee. In addition, findings

were made under s. 13(6)(c), (d) and (e) of the Act of 1996. These were:

“Section 13(6)(c) that the applicant, without reasonable cause, failed to make an application as soon as reasonably

practicable after arrival in the State.

Section 13(6)(d) the applicant had lodged a prior application for asylum in another state party to the Geneva Convention

whether or not that application had been determined, granted or rejected.

Section 13(6)(e) the applicant is a national of, or has a right of residence in, a safe country of origin for the time being so

designated by order under section 12(4).”

21. It is common case that, at the date of interview, Romania had been designated a safe country of origin pursuant to the Refugee

Act, 1996 (Safe Countries of Origin) Order 2003 made pursuant to s. 12(4)(a) of the Act of 1996 as amended.

22. By reason of the findings under s. 13(6) of the Act of 1996 the provisions of s. 13(5) applied to the applicant’s right to appeal the

recommendation to the Tribunal. This requires, inter alia, that the appeal be lodged within ten days of receipt of notice of the

recommendation under s. 13(1) and that it be determined without an oral hearing.

23. A notice of appeal on the standard form provided by the Tribunal was completed on the applicant’s behalf by his solicitors. Such

form again requests that all documents upon which the applicant proposes to rely be listed and it is stated that they must accompany

the form. Whilst it is stated that documents which have already been supplied to the Commissioner will be made available directly to

the Tribunal and there is no need to provide fresh copies, the applicant did specify “the twenty-nine documents submitted therewith”.

24. The solicitors for the applicant included with the notice of appeal a document headed “grounds of appeal”. In that document at

paragraphs (2) and (3) they explained the manner in which the application for asylum had been prepared and the origin of the

twenty-nine documents in the following terms:

“(2) This application is probably the best documented asylum application ever handled by the Firm of Cusack McTiernan,

Solicitors. The Applicant’s application was lodged with the Office of the Refugee Applications Commissioner (ORAC) on the

25th April, 2003. The application comprised:

(i) The fully completed questionnaire for refugee status application.

(ii) An attached document referred to as Schedule A comprising eight type written A4 sized pages and providing a

comprehensive account of the grounds upon which the Applicant was applying for asylum.

(iii) A list (in Romanian) of twenty-nine documents to support the Applicant’s application.

(iv) Copies of the twenty-nine documents (in Romanian) referred to in the above list.

(3) As Solicitors for the Applicant we requested ORAC to provide us with a english (sic) translation of the list referred to

at (iii) above and the documents referred to at (iv). Our Client had a very limited knowledge of the english (sic) language.

We had spent approximately three months meeting with the Applicant (and an interpreter paid for by ourselves) so that

we could firstly, understand the background of the Applicant’s case and then extract from it the portions that we

considered most relevant to the Applicant’s application for asylum. This was a very tedious, painstaking and time

consuming process. The Applicant presented us with many documents and with the assistance of the Applicant and the

Interpreter, we selected twenty-nine documents that we considered to be most relevant. Neither the Applicant or

ourselves have the resources to translate the documents.”

25. They then make a number of submissions in relation to the failure of ORAC to either translate all twenty-nine documents or

provide the solicitors for the applicant with those documents and the failure to interview the applicant in relation to the documents.

At paragraph (9) of the grounds of appeal they then made the following submission:

“…It is submitted that this appeal cannot be properly considered until, firstly, all of the twenty-nine documents have been

translated into english (sic) and, secondly, they are provided to the Applicant and his Legal Advisors in such a manner so

that the translation of each document can be identified with its Romanian version and, if thought necessary, written

submissions made thereon. …”

26. The appeal was determined by the Tribunal without a translation of the further nineteen documents and without any further

communication with the applicant or his solicitors in relation to the documents.

27. The letter of 27th February, 2004 from the Tribunal informing the applicant of the decision made states that such decision was

reached having considered, inter alia

“All documents, representations in writing and other information submitted to the Refugee Applications Commissioner in

connection with your case which have been previously furnished to you or your legal representative.”

28. Notwithstanding this statement, it is common case that the content of the untranslated nineteen documents was not considered

by the Member of the Tribunal who determined the appeal. The only information available to the Tribunal Member was the description

of such documents in the translated list of the documents. The Tribunal Member expressly refers to other documents submitted and

took them into account.

29. The Tribunal Member is obliged pursuant to s. 16(16A) of the Act of 1996 to affirm the recommendation of the Commissioner

unless he is satisfied, having considered the matters referred to in s. 16(16), that the applicant is a refugee. Further, in accordance

with s. 11A(3) the onus is on the applicant to show that he is a refugee. The Tribunal Member in his decision was not satisfied that

the applicant had discharged such onus of proof. He stated that he was not satisfied on the basis of a reasonable likelihood, having

considered the matters referred to in s. 16(16) that the applicant is a refugee within the meaning of s. 2 and accordingly pursuant to

s. 16(16A) that the recommendation of the Commissioner should be affirmed.

30. There is no reference in the decision to the nineteen untranslated documents.

The law

31. The Tribunal, in deciding an appeal under s. 16 of the Act of 1996, is expressly required by the provisions of sub-s. (16) to

consider the matters set out therein. This includes at para. (e):

“Any documents, representations in writing or other information furnished to the Commissioner pursuant to s. 11.”

32. It is common case that the twenty-nine documents submitted with the questionnaire are documents furnished to the

Commissioner pursuant to s. 11. Prima facie the Tribunal is obliged by statute to consider such documents prior to deciding an appeal.

At least nineteen of those documents were not considered by the Tribunal prior to deciding the appeal.

33. Counsel for the respondent submits, correctly in my view that s. 16(16)(e) of the Act of 1996 should not be construed literally so

as to require a Tribunal Member in all circumstances to consider the content of every document furnished by an applicant to the

Commissioner pursuant to section 11. To take an extreme example, if an applicant furnished with an application to the Commissioner

two boxes of unscheduled and unidentified documents then it would be absurd to construe the obligation of the Tribunal Member

under s.16(16) of the Act of 1996 as necessarily requiring him to consider all such documents prior to reaching a decision on the

appeal. The obligation might be altered for example by inquiries made by the Commissioner or the Tribunal Member of the applicant

seeking to establish what the applicant contended to be the relevance of the documents.

34. Factually this application is quite different. The application was prepared with the assistance of a solicitor. Twenty-nine

documents were identified as relevant and listed. No inquiries were made by ORAC at interview or otherwise as to why the applicant

contended the documents were relevant. The solicitors for the applicant in the grounds of appeal referred again to the relevance of

the documents and to the necessity of those documents being translated and considered for the purposes of the appeal.

Conclusion

35. Construing s.16(16)(e) of the Act of 1996 in accordance with the statutory scheme and the intent that the Tribunal determine an

appeal in accordance with the principles of constitutional justice including fair procedures, I have concluded that on the facts herein

the Tribunal Member determined the appeal in breach of s. 16(16)(e) and the applicant’s right to fair procedures. The section must

mean that the Tribunal may not ignore the content of nineteen documents furnished to the Commissioner pursuant to s. 11 in

circumstances where the applicant both in his application to the Commissioner and again in his grounds of appeal to the Tribunal has

asserted the relevance of the documents and no further inquiries were made of him as to the basis of such assertion.

36. Counsel for the respondent submitted that even if I concluded that the appeal had been determined in breach of s. 16(16)(e) of

the Act of 1996 by reason of the failure to translate and to consider the nineteen documents that the court should not grant to the

applicant an order of certiorari as the applicant had not established before this court the relevance of some or all of the nineteen

documents to his claim for a declaration of refugee status.

37. On the facts of this application, having regard to the procedure before the Commissioner, the notice of appeal and the decision of

the Tribunal Member it does not appear to me that the applicant should be required to establish the relevance of the documents

before this court before being granted an order of certiorari. The statutory scheme established by the Act of 1996 envisages that the

merits of the application be considered by the Commissioner and the Tribunal. It may be that where an applicant furnishes as many as

twenty-nine documents in a language other than English that the Commissioner is entitled, in the course of the interview of the

applicant or elsewhere, to have the applicant establish the prima facie relevance of the individual documents to his application for

asylum before being necessarily obliged to incur the expense of translating all the documents for the purpose of their consideration as

part of the applicant’s claim. If in the course of the interview the applicant had been asked questions directed to the relevance of

these documents and the Commissioner did not translate certain documents by reference to the explanations given then factually the

position would be quite different.

38. Similarly when the appeal was considered by the Tribunal Member, notwithstanding that the applicant had no right to an oral

hearing, it would have been possible for the Tribunal pursuant to s. 16(6) to request the Commissioner to make further inquiries for

the purpose of determining the appeal. Such inquiries could have included inquiries as to the relevance contended for by the applicant

of the untranslated nineteen documents.

39. On the facts of this case, the failure of the Tribunal to consider the nineteen untranslated documents was not by reason of any

determination by the Tribunal that such documents were not relevant to a consideration of the applicant’s claim for a declaration of

refugee status. If that had been the basis of the failure to consider and the applicant had been given either before the Commissioner

or before the Tribunal an opportunity of explaining the relevance of the individual documents then the position would be factually

quite different and there could be considerable merit to this submission of counsel for the respondent.

40. The applicant is entitled to have his appeal determined in accordance with fair procedures and the scheme established by the Act

of 1996 including s.16(16)(e). As this has not been done he is entitled to an order of certiorari and the matter to be remitted to the

Tribunal for determination by another member in accordance with law.

Relief

41. There will be an order of certiorari of the decision of the Tribunal of the 27th February, 2004 and of the decision of the Tribunal

Member of the 20th February, 2004.