High Court quashes ORAC decision due to failure to explore Mozambican nationality potential, requiring fresh evaluation.

Neutral Citation Number: [2009] IEHC 352

THE HIGH COURT

JUDICIAL REVIEW

2008 262 JR

BETWEEN

J. G. M.

APPLICANT

AND

THE REFUGEE APPLICATIONS COMMISSIONER AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

JUDGMENT OF MS. JUSTICE M. H. CLARK, delivered on the 29th day of July, 2009.

1. The applicant seeks an order of certiorari by way of judicial review of the recommendation of the Office of the Refugee

Applications Commissioner (ORAC), dated the 5th February, 2008, that the applicant should not be granted a declaration

of refugee status. Leave was granted on the 27th January, 2009 by Cooke J. (see J.M. v. The Refugee Applications

Commissioner & Another [2009] I.E.H.C. 64). The substantive hearing took place at the King’s Inns, Court No. 1, on the

23rd June, 2009. Mr. Mark Connaughton S.C. and Mr. David Leonard B.L. appeared for the applicant. Mr. Gerard Hogan

S.C. and Ms. Ann Harnett O’Connor B.L. appeared for the respondents. The essence of the applicant’s complaint is that

the ORAC decision is fundamentally flawed and ought to be quashed by reason of the authorised officer’s failure to explore

with the applicant the potential for him to acquire nationality of Mozambique. The applicant argues that this flaw in the

investigative process would be an appropriate case for judicial review rather than an appeal to the Refugee Appeals

Tribunal.

Background

2. On the 1st December, 2006 the applicant applied for asylum in the State, claiming to be a national of Zimbabwe. There

are some unusual features regarding his application.

3. From the outset he disclosed that he had been refused asylum in the U.K. and had been asked to leave that country.

He said he entered the U.K. in June, 2004 and made an application for asylum there in November, 2004. The date of his

application in the U.K. was confirmed by a Eurodac search. His explanation for the negative outcome of that application

was that the UK authorities found “that I am not Zimbabwean but that I had dual citizenship”. He also said that “The UK

refused saying that I am Mozambican”.

4. He furnished ORAC with voluminous documentation relating to his U.K. application although surprisingly the decisions by

the U.K. authorities were not included. The furnished documents indicate that he arrived in the U.K. using a Mozambican

passport and claiming to be a national of Mozambique. However both in the U.K. and in this State his claim for asylum

centred on the ill-treatment he suffered in Zimbabwe as a result of his membership of the opposition Movement for

Democratic Change (MDC) and his trade union activities.

5. At the appeal stage in the U.K. asylum process, he claimed that the Mozambican passport was not genuine and that he

was in fact a national of Zimbabwe. However included in the bundle of U.K. asylum application papers furnished to ORAC

there was a report from the Medical Foundation for the Care of Victims of Torture dated April, 2005, which lists his

nationality as “Zimbabwean / Mozambique” and records that he was born in 1976 in “Esubeira, Mozambique, near Manica,

eastern Zimbabwe” and that “his family moved to Zimbabwe in 1978 as a consequence of the civil war in Mozambique”.

The Medical Foundation report also records that he had “extended family in Mozambique.”

6. At a later stage in the applicant’s asylum process in the U.K. he claimed that he was in fact from Zimbabwe and he

furnished documentation in proof of that assertion. These were copies of his Zimbabwean birth certificate, his passport,

ID card and MDC membership card. His U.K. solicitors submitted a report from a forensic document examiner which found

that the applicant’s Zimbabwean passport was genuine and concluded that there is “no evidence of forgery or

counterfeiting”. The report noted that the passport showed that he had travelled extensively over the previous two

years. It seems that in addition to establishing the authenticity of the Zimbabwe passport the solicitors sought

confirmation from the Mozambique High Commission that the applicant was not a national of that country. They stated in

a letter that no confirmation could be produced as this would have required an exhaustive check of all Mozambique

nationality records to prove a negative. I understand this to mean that an exhaustive search was necessary to exclude

the applicant’s name from the birth registers.

7. It was not disputed in the U.K. that the applicant was tortured in Zimbabwe. The Medical Foundation report concluded

that he had “a number of scars consistent with his account of torture” and that the examining physician “did not doubt

that this man has been tortured as he describes”. While accepting the torture claim the Secretary of State and the

special adjudicator found that the applicant was from Mozambique and not Zimbabwe. His appeal to the Immigration

Appeal Tribunal (IAT) was refused in June, 2006 and it seems the finding of the IAT was that he had dual nationality. The

IAT rejected the authenticity of his Zimbabwean birth certificate although his Zimbabwean passport and ID document

were accepted as being genuine. His application for reconsideration of the IAT decision was, it seems, refused in August,

2006. The applicant says he appealed “to the High Court and the Supreme Court” in the U.K. but he has not provided any

documentation in support of that assertion and as none of the decisions were furnished, the reasons for the refusal are

not available to this Court.

8. The applicant travelled to Ireland on the 18th November, 2006 but did not apply for asylum then. After a number of

days here he left for the Netherlands. He explained he had planned travelling from Ireland to Canada where he intended to

apply for refugee status. When he discovered that there were no direct flights between Ireland and Canada he went to

the Netherlands to take a connecting flight but was refused entry because he was travelling on a false Botswana

passport which he says his father had organised for him. He declined to apply for asylum in the Netherlands and was

returned by the Dutch authorities to Ireland in December, 2006 and detained in Cloverhill Prison. Upon his release he

sought assistance from SPIRASI (the Centre for the Care of Survivors of Torture) in Dublin in preparing a medico-legal

report and proceeded with an application for asylum here.

The Asylum Application in Ireland

9. Although it was determined that the applicant should be transferred to the U.K. pursuant to the Dublin II Regulation, he

was not transferred on time and it fell to Ireland to examine and determine his asylum application. In his ORAC

questionnaire the applicant claimed that his application was dealt with inappropriately in the U.K. He said he was forced to

say he was from Mozambique even though he repeatedly told the authorities that he was from Zimbabwe. He furnished

ORAC with the grounds of appeal lodged with the IAT and letters addressed to the U.K. authorities by himself, his legal

representatives and his MP; each representation stresses that he is from Zimbabwe and not Mozambique.

10. In his questionnaire the applicant addressed the issue of dual nationality attributed to him by the U.K. immigration

authorities saying that this is not permitted in Mozambique or Zimbabwe. He cited Chapter 2 of the Constitution of

Mozambique of 1990 (dealing with citizenship) and an article entitled Zimbabwe Tightens Ban on Dual Citizenship

(February 18, 2001). He furnished an extract from a U.K. Home Office COI report on Zimbabwe of April, 2006, para. 5.10

of which states that the Citizenship Act “requires all citizens with a claim to dual citizenship to renounce their claim to

foreign citizenship under the laws of the foreign country by January 2002 to retain their citizenship and the right to

vote.” He also submitted excerpts of an unofficial UNHCR translation of the Constitution of Mozambique of November,

1990. This document deals with how Mozambican nationality is acquired and of relevance are:

“Article 15

Mozambicans are persons who, although satisfying the prerequisites for original nationality, did not acquire such

nationality due to a choice made by their parents or guardian, provided they personally declare, within a year of

reaching the age of 18, that they wish to be Mozambican. […]

Article 19

Mozambicans are the children of a Mozambican mother or father even if born outside the country, provided that

they expressly renounce, on their own behalf if they are older than 18, or through their parents or guardians if

younger, any other nationality to which they may be entitled. […]

SECTION III. LOSS OF NATIONALITY

Article 24

Mozambican nationality shall be lost by any person who:

a) voluntarily acquires a foreign nationality;

b) without authorization from the Government, agrees to provide services to a foreign State which may

prejudice the higher interests of the nation or the sovereignty of the State;

c) being also a citizen of another State, duly declares, that he or she does not wish to be Mozambican,

or having attained the age of majority, behaves in fact as a foreign national;

d) having as a minor obtained Mozambican nationality by virtue of a parent's or guardian's declaration,

renounces, in accordance with the requisite procedures and within one year of reaching the age of

majority, his or her Mozambican nationality, provided he or she can demonstrate possession of another

nationality; or

e) expressly renounces Mozambican nationality.

SECTION IV. REACQUISITION OF NATIONALITY

Article 25

1. Mozambican nationality may be granted to persons who have first lost and now wish to reclaim such nationality,

provided that they meet all the following conditions:

a) that they renounce their previous nationality;

b) that they establish domicile in Mozambique; and

c) that they meet the other requirements set by law.

2. Such reacquisition of nationality shall restore the legal status held prior to the loss of nationality.”

11. In October, 2007 the Refugee Legal Service (RLS) furnished ORAC with 24 documents in support of his asylum

application. These included a copy of his birth certificate from Salisbury, Rhodesia dated 1977, a certified copy of a

further birth certificate from Harare, Zimbabwe stamped in 2005, and copies of the birth certificates of his siblings, each

registered in the District of Harare, Zimbabwe. The siblings’ birth certificates are not identical to one another or to the

applicant’s – three are stamped on the 12th February, 1988 and the other two are stamped on 9th December, 2003 and

12th April, 1988. The three certificates stamped in February, 1988 record the place of birth as Salisbury while the other

two are stated as being born in Harare, this notwithstanding that each of the five certificates is headed “certified copy of

an entry of birth registered in the District of Harare in Zimbabwe”. The place of birth of the siblings’ father is listed as

Mozambique on the certificates of the applicant and his sister but their three brothers’ certificates list his place of birth as

Rhodesia, Zimbabwe and “Portuguese East” (i.e. Mozambique) respectively.

12. Various other documents were also furnished including a copy of the applicant’s Zimbabwean ID card and MDC

membership card; letters from his former employer in Harare and the President of the MDC; certificates from his primary

and secondary schools and the polytechnic in Harare where he studied; and various medical affidavits and medico-legal

reports including the new SPIRASI report. This report indicates that he was seen by an examining physician and appeared

to be very distressed by the experiences he had in Zimbabwe; that he was referred for counselling and had attended with

psychotherapeutic services on a weekly basis but remained “significantly depressed and extremely vulnerable”.

The Questionnaire

13. The applicant’s questionnaire sets out his experiences in Zimbabwe and the U.K. He said he was born in 1976 in what

was then Salisbury, Rhodesia but is now Harare, Zimbabwe. He qualified as a maintenance engineer in a polytechnic in

Harare and gained employment in the tobacco industry. He became secretary of the Tobacco Processors of Zimbabwe

(TPZ) workers’ union from 1998 and was a member of MDC opposition party from 2000. He said he was tortured by the

police, Zanu-PF supporters and Mugabe’s war veterans because of his involvement in peaceful protests with the TPZ and

because of his MDC activities. He witnessed the death of one of his colleagues and his brother was also killed. He records

that he had attempted to start a new life in Mozambique and Botswana but on each occasion he was returned to

Zimbabwe. He travelled to and from Mozambique frequently using his Zimbabwean passport but that document was taken

from him by army officials in October, 2003 when he was forcibly returned to Zimbabwe. After that he travelled using

falsified documents. He fled from Harare using a fake Mozambican passport.

The s. 11 interviews

14. The applicant attended for two s. 11 interviews. A representative of the Irish Refugee Council was present at each

interview and made written submissions to ORAC after each interview. Nothing turns on those submissions in these

proceedings. The applicant submitted additional COI for his first interview on the 10th October, 2007. He repeated his

claim that he had lived in Harare since he was born. He was questioned at length about his travel arrangements and his

experiences in Zimbabwe and he was asked in detail about the periods of the trips in and out of Mozambique and his

journey out of Harare in June, 2004 using a Mozambican passport. He said he had been in hiding in Mozambique but was

found and returned to Zimbabwe. He then tried to leave Zimbabwe by travelling through Mozambique using a Mozambique

passport but this document indicated a Zimbabwe residence and as this created difficulties he abandoned that plan. He

decided to instead leave from Harare where in the end he did not have any problems leaving on his Mozambique passport.

Of particular importance to the applicant’s claim he was asked:-

“According to your birth cert your father is from Mozambique. COI states that anyone whose father is a

Mozambique national can claim nationality of that country. Why did you not do so?”

15. He replied “His place of birth is Mozambique but his nationality is Zimbabwean.” No further probing on the issue of his

father’s nationality was conducted. No questions were asked as to whether he had ever considered claiming Mozambique

nationality through his father or whether his father would or could pass on nationality to his son. No reference was made

to the COI furnished by the applicant from the UNHCR source on the nationality provisions in the Constitution of

Mozambique.

16. The applicant said he originally claimed to be Mozambican in the U.K. because he did not have any documents to

show he was from Zimbabwe. He repeated the complaint that although he had subsequently explained to the UK

authorities that he was from Zimbabwe this was ignored.

17. Thereafter, further documentation and COI was submitted dealing with the escalating human rights situation in

Zimbabwe but these documents do not address the issue of Mozambican or Zimbabwean citizenship or nationality.

18. On the 9th January, 2008 a second s. 11 interview was conducted. The applicant was asked a series of questions

designed to test his knowledge of Zimbabwe and about the documents he had furnished. Various discrepancies in the birth

certificates which he had furnished were noted. He was again asked about his frequent travel to and from Mozambique

and Botswana. He submitted three pages of the false Mozambique passport he said he had used to enter the U.K. and

Botswana; the pages show a one-month visa to enter Botswana, a U.K. entry visa and a U.K. entry stamp dated June,

2004. When asked why he could not go and live in Mozambique if he had a (false) Mozambique passport, he replied

“Because my residency was in Zimbabwe on the Mozambique passport. If I was staying there for a long time, they will

want to see your birth cert and see how you got those documents.”

19. The applicant was asked why the medico-legal report of April, 2005 from the Medical Foundation stated that he was

born in Mozambique. He first said the doctors had taken his biological details from the forms he initially completed in the

U.K. and that some of those details were fabrications. He clarified that he had told the doctors on his first visit to them

that he was from Mozambique but afterwards he said he was Zimbabwean. He said he was afraid to be rude when first

making his asylum application in the U.K. so when he was asked to stick to one nationality he said he was Mozambican.

He also said he waited five months before applying for asylum in the U.K. because he wanted to have evidence of his

nationality and MDC membership before applying. He said his brother who had formerly been a police officer was able to

recover his Zimbabwean passport from the army officers who had taken it from him in October, 2003 when he was

returned from Mozambique to Zimbabwe. His father he said brought it to him when he visited him in the U.K.

The s. 13 report

20. On the 12th February, 2008 a negative recommendation was made by the ORAC officer in the s. 13 report. It is that

decision that is challenged in these proceedings. The report is in effect divided between a consideration of the applicant’s

nationality and of his account of his ill-treatment in Zimbabwe. In summary the report draws two alternative conclusions

from the applicant’s evidence – first that he was a national of Mozambique and was not coerced by the U.K. authorities

into claiming that he was a national of Mozambique and second that even if he is not a national of Mozambique, his father

was born there and if he is not already a citizen he would be able to acquire citizenship of Mozambique and the applicant

would then be entitled to apply for citizenship through his parentage.

21. The officer noted a number of errors in the applicant’s testimony at interview in relation to his Zimbabwe nationality

and concluded that although “his level of knowledge does appear to be that of someone who has resided in Zimbabwe for

a number of years” this does not confirm that he was born in Zimbabwe. The officer accorded weight to the fact that the

applicant himself had signed official papers in the U.K. stating that he was a national of Mozambique. It was not accepted

that he was coerced into signing those papers, especially as he claimed he had waited five months before applying for

asylum in order to receive evidence of his Zimbabwe nationality. Weight was also accorded to the content of the Medical

Foundation report which records that he was born in Mozambique. It was also noted that the applicant gave

contradictory answers at interview as to why that report was not amended if he subsequently told them he was

Zimbabwean.

22. The ORAC officer went on to find that “even if” it was accepted that the applicant was born in Zimbabwe, most of

the birth certificates indicate that his father was born in Mozambique and the applicant had submitted no documentation

to show his father was a citizen of Zimbabwe. The s. 13 report refers to an extract appended at Appendix 4 dealing with

the citizenship law for Mozambique (“the Appendix 4 document”). The ORAC officer concluded:-

“[i]t appears that the applicant’s father, if he is not presently a citizen of Mozambique, would be entitled to

reacquire his Mozambique citizenship which in turn would allow the applicant to gain citizenship of that country. It

appears that the applicant himself would be able to claim citizenship in Mozambique as he was born there or

through his parentage. Either way, the applicant appears to have dual nationality and could seek the protection of

the second country of available citizenship, Mozambique.”

23. Having made this determination the ORAC officer went on to address the applicant’s account of his experiences in

Zimbabwe. He accepted that the medico-legal report submitted by the applicant was “above reproach” and he accepted

that the applicant was a victim of torture in Zimbabwe. He was satisfied the applicant had worked in the role of

maintenance fitter, that his knowledge of the tobacco industry was of a high level and that he was able to give a

reasonable amount of information on the MDC but that he was not satisfied that the applicant had the level of knowledge

of trade unions in Zimbabwe that would be expected of a highly involved trade unionist.

24. The s. 13 report notes a variety of discrepancies and inconsistencies in the applicant’s account and in his answers to

questions posed at interview, particularly in relation to the dates on which various events occurred. The authorised

officer found that as the details of the events surrounding the torture were purely based on the applicant’s testimony, it

was not possible to prove the details. He concluded that:-

“[T]he alleged acts of persecution occurred in Zimbabwe and the applicant has not presented a case that negates

the protection of the country of his second available citizenship, Mozambique. Therefore the applicant would avail

of the protection of Mozambique and is not in need of international protection.”

25. The ORAC officer found that as the applicant had lodged a previous application for asylum in the U.K., s. 13(6) of the

Refugee Act 1996 applied which means that his appeal will be document based.

THE ALLEGED BREACH OF FAIR PROCEDURES

26. Leave was granted by Cooke J. in this case to argue that the s. 13 report infringed the applicant’s entitlement to fair

procedures by reason of the failure of the authorised ORAC officer:-

“1) to disclose and to afford the applicant an opportunity of rebutting or answering the Appendix 4 document

extract on the laws of Mozambique citizenship; and

2) to adequately alert and permit the applicant to consider and answer the proposition that he could, either in his

own right or through his father, obtain or reacquire Mozambique nationality and thereby have the protection of that

country and not need international protection.”

27. At the substantive hearing Mr. Connaughton S.C., counsel for the applicant, urged the court to bear in mind that it

was accepted in the s. 13 report that the applicant was tortured in Zimbabwe and that the reason for the negative

recommendation was that the applicant could obtain citizenship of Mozambique and could seek protection there. He

argued that there was an almost total absence of any reference in the s. 11 interview notes to the question of the

applicant’s potential to acquire citizenship and therefore the protection of Mozambique. He submitted that while the

mobility of the applicant between Zimbabwe and Mozambique was discussed, there was nothing further than a fleeting

reference to his ability to acquire citizenship of Mozambique. This, he submitted, was a stark omission when as it turned

out that his citizenship of Mozambique became the core reason for the negative recommendation.

28. Mr. Connaughton also complained that the ORAC officer failed to disclose to the applicant the document relied on in

the s. 13 report and contained at Appendix 4 of that report. The applicant was therefore denied an opportunity of

rebutting or answering the Appendix 4 document, which is an extract from a report entitled Citizenship Laws of the World

produced by the Office of Personnel Management of the U.S. government in 2000 / 2001 as a resource for dealing with

multiple citizenship issues. It was argued that if the extract had been disclosed to the applicant, the applicant could have

made submissions as to the accuracy of its contents and as to why it should not be relied on in a manner adverse to him.

For example, he could have pointed out that the report is prefaced by the caveat that the information “should not be

considered formal legal advice” and that:-

“Readers should understand that citizenship laws are often amended to keep in step with political changes. A

considerable time lapse between the enactment of new laws and their actual implementation is not uncommon.

Moreover, it is not unusual to encounter differences between a nation’s laws and its actual practices.”

29. In addition the applicant could have provided further evidence that dual citizenship is not allowed either in

Mozambique or in Zimbabwe by drawing attention to the documentation furnished to ORAC and referred to in the

applicant’s questionnaire, or by submitting further up-to-date documentation.

30. Counsel argued that there is an obligation on the authorised ORAC officer as a matter of fair procedures to put to an

applicant all matters that are considered to be relevant. He relied in particular on Idiakheua v. The Minister for Justice,

Equality and Law Reform & Anor (Unreported, High Court, Clarke J., 5th May, 2005) and Moyosola v. The Refugee

Applications Commissioner [2005] I.E.H.C. 218.

31. Counsel submitted that the failure to put these matters to the applicant and / or to explore with him the potential for

him to obtain Mozambique nationality constitutes a flaw so fundamental as to deprive ORAC of jurisdiction and which

would entitle him to an order of certiorari in circumstances where he would not be entitled to an oral hearing on appeal to

the RAT. He argued that even if the applicant was aware that his nationality was a live issue, the ORAC officer was still

obliged to explore the issue with him.

The Respondents’ Submissions

32. Mr. Hogan S.C., counsel for the respondents, argued that although the ORAC stage of the asylum process is

inquisitorial or quasi-inquisitorial, the applicant is not merely a passive recipient of a decision. Pursuant to s. 11C of the

Refugee Act 1996, as amended, he has a duty to co-operate in the investigation of his application and has a duty to

furnish to the Commissioner as soon as reasonably practicable all relevant information in his or her possession, control or

procurement.

33. Mr. Hogan argued that the issue of the applicant’s nationality was a potentially significant matter at all stages of his

application. The documentation furnished by the applicant to ORAC makes it clear that he was fully aware that his

nationality was a live issue during his previous application in the U.K. and he must be taken to have known that it would

be a live issue before ORAC. Knowing that this was a key issue, when the applicant was asked why he had not applied for

Mozambican citizenship given that his father was born there, should have spurred him to fulfil his duty under s. 11C of the

Act of 1996 and to provide a full answer. Instead he answered in a manner that was at best elliptical and at worst

evasive.

34. Mr. Hogan argued that the requirements of fair procedures do not exist in a vacuum and while the ORAC officer might

have further teased out the issue of nationality with the applicant this cannot be said to be a fundamental breach of fair

procedures in circumstances where the applicant was aware that dual nationality was a live issue.

35. Mr. Hogan submitted that the Appendix 4 document is in substance very similar to the UNHCR document furnished by

the applicant to ORAC with his questionnaire. He accepted that there are nuanced differences but argued that the

applicant cannot be said to have been prejudiced by the failure of the ORAC officer to disclose the Appendix 4 document

to him, given that he was already in possession of a document that contained precisely the same information.

Adequacy of a paper-based appeal to the RAT

36. Counsel for the applicant argued that judicial review should lie in this case because the applicant should not have to

seek a remedy by way of a paper-based appeal. He argued that the applicant should be entitled to fair procedures and

natural and constitutional justice at the first instance before the ORAC and this was denied to him. He was at pains to

enforce the submission that he was not expressing a grievance with the quality of the s. 13 report (as was the case for

example in A.D. (Diallo) v. The Refugee Applications Commissioner [2009] I.E.H.C. 77 where Cooke J. found that judicial

review did not lie). He was complaining of “a fundamental and irremediable infringement of the entitlement to a fair

procedure” which was recognised by Cooke J. in Diallo as the exceptional type case where judicial review rather than

appeal might lie.

37. Counsel for the respondents argued that even if it is accepted that there had been a breach of fair procedures (which

he did not accept), the court must consider whether that breach is of such significance that the ORAC recommendation

ought to be quashed and the matter remitted for reconsideration or whether, in the alternative, the breach could be

remedied on appeal. This is a case that is capable of being directly cured by way of a paper-based appeal, he argued,

and the question of whether the applicant is entitled to apply for Mozambican nationality by descent is a question of pure

law which could be determined without an oral hearing. It is a question of interpretation, counsel argued, which is in fact

more properly suited to a paper-based appeal than to an appeal in which oral evidence is required and he submitted this is

not a case that requires judicial intervention to do justice to the applicant.

THE COURT’S ASSESSMENT

38. This is a case where the applicant seeks an order quashing the decision of the ORAC rather than availing of his

statutory right to an appeal before the Refugee Appeals Commissioner and in circumstances where he has no entitlement

to an oral appeal before the RAT. In view of the recent line of clear authority on the inappropriateness of judicial review

rather than appeal, I have approached the ORAC process and the s. 13 report in the light of that authority to ascertain

whether this is one of the exceptional cases where “a fundamental and irremediable infringement of the entitlement to a

fair procedure” has occurred and where certiorari appropriately lies.

39. This is a case where it was accepted from documents furnished to the U.K. immigration authorities and to ORAC that

the applicant held a valid Zimbabwe passport and also that he had injuries consistent with his description of torture.

However, while significant doubts were expressed about the applicant’s credibility on a number of other substantial issues,

the ORAC officer did not determine the case on that basis. Instead he found that “even if” the applicant’s credibility were

to be accepted, there was no need for Ireland to offer surrogate protection because the applicant could avail of the

protection of the State of Mozambique. This was because either the applicant was himself a national of Mozambique

because he was born there or the applicant’s father was a national of Mozambique or could reacquire Mozambican

nationality and the applicant could therefore apply for Mozambican nationality though his parentage. It is in that context

that this Court must assess the submissions made.

40. The court has been referred to the case law, both in oral argument and in the written submissions, on when it is

appropriate to seek judicial review of a decision of the ORAC rather than utilising the statutory appeal remedy before the

Refugee Appeals Tribunal provided under the Refugee Act 1996. In particular, reference was made to the decisions of the

Supreme Court in Stefan v. The Minister for Justice, Equality and Law Reform [2001] 4 I.R. 203 and A.K. (Kayode) v. The

Refugee Applications Commissioner (ex tempore judgment of Murray C.J., 28th January, 2009); and the decisions of

Hedigan J. in B.N.N. (Nganzunuj) v. The Minister for Justice, Equality and Law Reform & Anor [2008] I.E.H.C. 308 and

Cooke J. in A.D. (Diallo) v. The Refugee Applications Commissioner [2009] I.E.H.C. 77 (27th January, 2009), the leave

stage in the present case (see J.M. v. The Refugee Applications Commissioner & Another [2009] I.E.H.C. 64); T.T.A.

(Akintunde) v. The Refugee Applications Commissioner [2009] I.E.H.C. 215 (29th April, 2009) and R.L.A. v. The Minister

for Justice, Equality and Law Reform [2009] I.E.H.C. 216 (30th April, 2009).

41. It seems to this Court that the application of the principles set out in those cases to the facts and arguments in this

case involves a basic two-step assessment. First, the court must determine whether there has been a fundamental flaw

or illegality such that a rehearing upon appeal before the Tribunal will be an inadequate remedy and that certiorari may

lie. If it is found that certiorari may be granted, the court must then consider whether to exercise its discretion to grant

the order. In this regard the question for the court in accordance with the principles outlined in Stefan at p. 217 is

whether certiorari is the appropriate remedy to attain a just result. I now apply that two step approach.

(a) Has there been a fundamental flaw in the procedures?

42. The applicant’s main complaint relates to the reliance by the Tribunal Member on a document appended to the s. 13

report at Appendix 4, Citizenship Laws of the World, which was not put to the applicant at his s. 11 interviews. Having

examined the contents of that document and compared it with the content of the Constitution of Mozambique document

furnished to ORAC, I am not satisfied that this constitutes a breach of fair procedures. I accept the respondents’

argument that the applicant’s own document appended to his ORAC questionnaire, containing Articles 11 to 25 of the

Constitution of the Republic of Mozambique of 30th November, 1990, is very similar in content to the document relied on

by the ORAC officer in relation to nationality provisions. In other words the law on nationality is, with some nuances, the

same whether one looks at the Law of Nationality of 1975, upon which the information in the Appendix 4 document is

based, or Articles 11 to 25 of the Constitution of 1990. Given the almost identical principles in both documents the

applicant cannot be said to have been prejudiced by the failure of the ORAC officer to disclose to him the Appendix 4

document. I find no illegality or flaw in fair procedures here.

43. The issue which is the cause of some concern to this Court is not the content of the Citizenship Laws of the World

document or the failure to disclose it to the applicant in advance of the s. 13 report but rather the failure of the ORAC

officer to engage with the applicant on the question of his ability to “acquire” nationality of Mozambique. When

questioned about his own nationality, the applicant repeatedly insisted that he was born in Harare and was a national of

Zimbabwe and was not a national of Mozambique. In his questionnaire, he stressed his Zimbabwean nationality saying that

“Mozambique and Zimbabwe do not allow dual nationalities.” While undoubtedly, some of his assertions relating to his

place of birth were viewed with scepticism because of previous documents furnished during his U.K. application for

asylum, especially the detailed history contained in the medico-legal report from the Medical Foundation for the Care of

Victims of Torture, the fact remains that during his application in this jurisdiction he at all times asserted he was born in

Salisbury / Harare and produced a birth certificate to that effect.

44. An oddity on that birth certificate is a statement in a box at the top right hand side of the document that “In terms

of the citizenship laws in force in Rhodesia the child named in this certificate is not a citizen of Rhodesia by birth.” I can

only speculate that if the document is what it purports to be, the fact that the applicant’s father was recorded with an

identity number meant that he was not a native of the then Rhodesia when his son the applicant was born.

45. Several but not all the birth certificates of the applicant’s siblings state that their father was born in Mozambique.

When asked “According to your birth certificate your father is from Mozambique. COI states that anyone whose father is

a Mozambique national can claim nationality of that country. Why did you not do so?”, the applicant answered that his

father was born in Mozambique but was a national of Zimbabwe. No further questions were asked of him in that regard. He

was not asked for instance how or why his father had become a national of Zimbabwe or whether there would be any

impediment or consequence to his father acquiring Mozambique nationality. The applicant may well have assumed that his

answer had been accepted as he has previously furnished a U.K. Home Office COI Report on Zimbabwe of April, 2006

which indicates that any claims to foreign citizenship, if held, had to be renounced by January, 2002 in order for the

person to retain their Zimbabwean citizenship.

46. This Court is of the view that if the ORAC officer had taken the view that the acquisition of Mozambique nationality

derived from his father’s origins would or could debar the applicant from protection, then it was incumbent on the ORAC

officer to tease out the issue a little further if only to establish the correctness of this view. If the officer had done so

and been more forthcoming with his reasoning then of course the applicant had an obligation to establish that his father

was not a citizen of Mozambique or that he would not be able to re-acquire citizenship of Mozambique or even that it

would be unwise or unsafe for him to do so. As no further elucidation was sought, it seems harsh to describe his answer

to an apparently arid line of questioning as ‘evasive’.

47. Properly alerted, the applicant might have proffered an explanation as to why he or his father was not entitled to

obtain or re-acquire citizenship of Mozambique. Even though two interviews were held at the stage when these issues

were being investigated, there was an almost total absence of exploration of the issue of the obtaining of Mozambique

nationality and scant regard was paid to documents furnished by the applicant on the constitutional provisions of re-

acquisition of Mozambique nationality. Complete reliance was instead placed instead on a document compiled in 2000 /

2001, containing its own caveats. This it seems to me is a serious deficiency in the investigative process.

48. As this issue formed the basis of the negative recommendation it seems to me that there has been a fundamental flaw

in the investigation process which amounts to a breach of fair procedures.

(b) Is certiorari the appropriate remedy to obtain a just result?

49. Denham J. in Stefan at p. 217 held that the court’s assessment as to whether certiorari is the appropriate remedy to

obtain a just result involves an assessment of all of the circumstances of the case including “the existence of an

alternative remedy, the conduct of the applicant, the merits of the application, the consequences to the applicant if an

order of certiorari is not granted and the degree of fairness of procedures”.

50. As the court has found that there has been a fundamental flaw in the applicant’s entitlement to a fair procedure the

next issue for consideration is whether the flaw is remediable at appeal. I believe not.

51. I am influenced by the fact that although much of the s. 13 report was taken up with aspects of the applicant’s

evidence which were found not to be credible, the core reason given for the negative recommendation was the availability

of protection in Mozambique by reason of the perceived ability of the applicant to obtain nationality of that country

through his own or his father’s birth right.

52. The court does not either ignore or minimise the many negative comments made regarding inconsistencies in some of

the evidence given and in the documents furnished and outlined in the s. 13 report. However, as the negative credibility

comments were not the reason for the failure of the application they provide additional reasons for disadvantage in his

paper based appeal. It is also possible that the worsening humanitarian and political situation in Zimbabwe since the s. 11

interviews with the increasing outward flow of refugees to neighbouring countries may have affected a tightening of

nationality laws in those countries. The applicant could find himself in the situation of making key arguments for the first

time in a paper based appeal where he will have no opportunity to explain changes to the Tribunal Member. It may even

be that he could satisfy the Tribunal Member on the legal issue of the non-availability of protection in Mozambique only to

be rejected on other credibility issues. In those circumstances, it is certainly possible that where complex issues of

nationality and general credibility will have to be addressed on paper, such an appeal would be an inadequate remedy for

the error made in the first stage of the investigation. There will be no opportunity for the Tribunal Member to observe the

applicant answering questions and no opportunity for the applicant to orally explain any of the discrepancies highlighted in

the s. 13 report.

53. Denham J. in Stefan, Hedigan J. in Nganzunuj and Cooke J. in Diallo considered that the absence of the right to an oral

hearing may be a factor to be taken into account when it is considered whether the defect identified at the ORAC stage

is remediable on appeal. As was noted by Cooke J. at the leave stage in this case:-

“[…] to come within the category of exceptional cases in which certiorari should issue, it is not sufficient to point to

an error or an unfairness on the part of the Commissioner in assessing credibility or evaluating information. A

substantial ground must be advanced for the existence of some fundamental flaw or illegality in the report such that

a rehearing, whether oral or on paper only, will be inadequate to remedy it or which is such that, even if capable of

being cured by an appeal, would result in a material issue not being reheard but being heard for the first time upon

the appeal.”

54. Cooke J. held that the absence of an oral hearing in these circumstances is “clearly a material factor bearing upon

the ability of the appeal adequately to cure the potential unfairness at the first stage hearing”. I agree with this view.

There is in my view a real danger that the defective aspect of the investigation at the ORAC stage in this case may not

be capable of remedy by a paper based appeal.

Conclusion

55. It is clear that the High Court must respect the statutory appeal process and refrain from intervening where the

appeal is an adequate remedy. I adopt the reasoning expressed by Cooke J. in Akintunde that the court:

“should confine itself to the necessary correction of significant illegalities in the first stage investigation by the

Commissioner when it is indispensable to do so in order to preserve the effectiveness, fairness and integrity of the

appeal that is otherwise available to the Tribunal.”

56. I am satisfied that this is a case where the court should grant relief. It seems to me that the breach of fair

procedures in the process by which the Commissioner reached his decision is capable of having continuing adverse effects

on the applicant in the course of the appeal and I am satisfied that the defects in the first instance investigation cannot

be cured on appeal. In the light of the foregoing, I am satisfied that an order of certiorari is the appropriate remedy to

obtain a just result. I therefore make an order quashing the decision of the ORAC dated the 5th February, 2008 and direct

that the case be remitted to ORAC for a fresh evaluation before a new authorised officer.