HC139 C. (C. A.) v. Refugee Appeals Tribunal & Anor [2002] IEHC 139 (24 June 2002)

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URL: http://www.bailii.org/ie/cases/IEHC/2002/139.html
Cite as: [2002] IEHC 139

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    THE HIGH COURT
    (Judicial Review)

    RECORD NO. 807JR/2001

    Between

    A. C. C.

    Applicant

    - and -
    REFUGEE APPEALS TRIBUNAL and THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

    Respondents

    JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON 24th JUNE 2002

    A. C. C. The Applicant is a Romanian national whose date of birth is 5th December 1967. He is a single male person who arrived in the State on 23rd July 2000. By profession or erstwhile occupation, he is an administrator who departed from his country of origin, Romania, on 6th May 2000, and arrived here via France and Spain; his stated method of travel was by air. He was given and acknowledged receipt in July 2000 of (inter alia) the following documents:

    (i) Information Leaflet and Procedures for Processing Asylum Claims.
    (ii) Questionnaire regarding application for refugee status.
    (iii) Refugee Legal Service Information Leaflet.

    These documents were furnished in the Applicant's own language for, as emerged in the questionnaire (as translated), he had only a little French and a little English.

    In the principal affidavit he states that he came to this State "from Romania, where I suffered persecution on account of bisexuality". His employment record in Romania refers to reasons for leaving his jobs in 1999and 2000 as "arguments regarding my relationship with my boyfriend". Q.84 in the questionnaire, which is designed to elicit reasons for seeking asylum, referred to a specific incident on 5th August 1999, and events thereafter. The Applicant stated:-

    "I could not take it anymore psychologically because the (the police) threatened that they will not leave me alone, that they will terrorise me until they will retire."

    The Applicant was interviewed, with the aid of an interpreter on 23rd August 2000. Prior to interview the Applicant signed a statement acknowledging that it was in his own interest to give truthful answers to all the questions asked of him at the interview. At the conclusion of the Interview the Applicant stated in writing that he was satisfied that the information recorded in the report (ie, interview notes) was as stated by him and he was given a copy of the interview notes. No representations were made within the five-day period after the interview, which was an entitlement the Applicant had been appraised of before he signed off the interview notes.

    The interview concluded with the following exchange:-

    Interviewer: "The facts which you have given to me so far do not have the slightest bearing in support of your claim for asylum -- do you understand?"
    Interviewee: "Yes -- I do understand that."

    A Mr. Tom Duffy, who conducted the interview, prepared an "Assessment of Claim for Refugee Status", which is dated 7th November 2000. Mr. Duffy, in analysing the claim, came to state:-

    "(h) The main reason the Applicant is afraid of returning to Romania is that he is afraid of the influential people who loaned him a large sum of money to leave Romania (interview notes – pages 7,8 and 13). He has also come to Ireland to resolve his medical problems and to improve his health (interview notes – page13) At page 6 of the interview notes he stated, 'I would hope that here in Ireland that I will find a doctor who will perform surgery on my prostate.' These reasons are not Convention reasons for seeking asylum."

    Mr. Gerry Shannon H.E.A., to whom Mr. Duffy's assessment was submitted, took the view that the Applicant had not proven a well-founded fear of persecution for a Convention reason and decided that the Applicant's application for asylum be refused.

    The Refugee Applications Commissioner (the Commissioner), by letter of 26th January 2001, referred to the transitional arrangement between the Hope Hanlan procedures and those under the Refugee Act 1996 and stated that her recommendation to the Minister would be that the Applicant would not be grantee a declaration of refugee status.

    The decision of the Commissioner was appealed to the Tribunal with the benefit of legal advice and assistance. Notwithstanding that most of the time of the hearing of the application was devoted to criticism of the interview and the decision at first instance, the Commissioner is not a party to these proceedings nor were proceedings ever issued against the Commissioner.

    The principal ground of appeal is stated to be 'Membership in a particular social group (homosexual)'. In the first paragraph of the appeal it is stated:

    "Mr. C. is a homosexual."

    The second paragraph states:-

    "Mr. C. also denies ever describing himself as bisexual."
    "He considers himself homosexual rather than bisexual."

    Yet, as earlier noted in this judgment, he avers he suffered persecution on account of bisexuality.

    The appeal hearing was scheduled for 21st August 2001, but this was adjourned on the Applicant's application because of his indisposition and the hearing was then scheduled for 17th October 2001.

    The appeal failed and the Applicant was informed of this outcome by letter dated 21st November 2001. The decision of the Tribunal addresses the issues and concerns of the Applicant and accepts criticism by the Applicant that the interview by Mr. Duffy was conducted in an adversarial manner. It carefully treats of the case made by the Applicant but finds "the Applicant's claim unsatisfactory in terms of substance and credibility". On a careful consideration of the evidence, I am satisfied and find as a matter of fact and of law that the manner of the procedures followed and the other actions of the second-named Respondent have not been oppressive, contrary to the spirit of asylum or unconstitutional. It is nonetheless a matter of regret that more tact and sensitivity to an at times confused and contradictory account of affairs was not displayed at the interview stage. I also find as a fact that on the evidence the refusal to the Applicant of refugee status was not perverse. The view of the Tribunal of the interview did not require the setting aside the Commissioner's recommendation. The Tribunal was not bound to accept or reject the Commissioner's recommendation. It had an independent investigative role in decision making. In my judgment, adopting GK & Ors -v- The Minister of Justice, Equality and Law Reform (unreported 17th December 2001 - Supreme Court), the Commissioner's decision "may well have merged in the decision on appeal to the same effect".

    In my judgment, there was no decision of either Respondent dependent or reliant on an error of law. In this context, I have considered Islam -v- Secretary of State for the Home Department and RV -v- Immigration Appeals Tribunal & Anor Ex Parte Shah [1999] Imm AR 283; [1999] 2 AC 629, and in the broader context R -v- Ministry of Defence Ex Parte Smith [1996] QB 517.

    I refuse leave to apply for judicial review.

    END OF JUDGMENT


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