The applicant was a national of Nigeria who sought asylum and whose application was refused by the Refugee Appeals Tribunal. He sought to quash its decision. He claimed to fear being put to death because of his father’s association with a secret cult, whose aim was to make its members wealthy by killing their children. He claimed that his sisters had been killed by the cult via a “spiritual attack.”
His proceedings were instituted by a notice of motion grounded on the affidavit of his solicitor. In breach of the provisions of O. 84, r. 20(2) RSC, the facts relied upon in the statement grounding the application for judicial review were not verified. The statement grounding the application for judicial review did not set out any narrative about the underlying claim or the manner in which it was processed by the protection decision-makers.
The respondents argued that the absence of a sworn statement as to the facts relied upon in the statement of grounds meant that the proceedings were not properly constituted and initiated within the time allowed by s. 5 of the Illegal Immigrants (Trafficking) Act 2000, relying on the decision of the Supreme Court in K.S.K Enterprises Ltd v. An Bord Pleanala  2 I.R. 128.
The court accepted the correctness of the respondents’ submission. It then turned to consider if an extension of time should be granted. In its view, the interests of justice would not be served by permitting a procedural point such as delay to prevent the applicant from obtaining an order of certiorari of an asylum decision if it were justified. Before considering whether its discretion should be exercised to extend time and to permit the applicant to verify on affidavit the facts relied upon, it went on to consider the merits of the application.
The applicant impugned the decision on the basis that the Tribunal had failed and refused to apply the provisions of s. 3(1) of the European Convention on Human Rights Act 2003 (hereafter “the ECHR Act 2003”) to its decision. In this regard, it relied on the notice of appeal to the Tribunal which alleged that the quality of justice and policing administered in Nigeria breached articles 3 and 6 of the European Convention on Human Rights (“ECHR”). It contended that the applicant was entitled to protection against refoulement to Nigeria under articles 2, 3, 5, 8 and 10 of the ECHR. It submitted that the Tribunal was obliged under s. 3 of the ECHR Act 2003, and under Article 6 of the Treaty on the Functioning of the European Union to act in a manner compatible with the ECHR.
The applicant contended, first, that that section of the notice of appeal was not addressed in the decision of the Tribunal and, in particular, that the Tribunal Member was required to address the provisions of the ECHR in an asylum decision.
The court rejected the applicant’s challenge to the decision on that basis. It held that the section of the notice of appeal relied upon by the applicant addressed circumstances which applied when the Minister for Justice was considering whether or not to deport a person from the State, and had no bearing on the question of whether or not that person should be entitled to a declaration of refugee status. It therefore rejected the applicant’s claims in that regard.
Secondly, the applicant also argued that the obligation to address the provisions of the ECHR arose from ss. 2, 3 and 4 of the European Convention on Human Rights Act 2003. However, the court noted that s. 1 of the ECHR Act 2003 expressly referred to an “organ of the State” as including “a tribunal or any other body (other than…a court) which is established by law or through which any of the legislative, executive or judicial powers of the State are exercised.” Section 2 of the Act of 2003 applied specifically to “a court,” which did not include the Refugee Appeals Tribunal. The applicant’s complaint that the Tribunal was bound by s. 2 of the Act of 2000 therefore failed.
The court noted that pursuant to s. 3 of the Act of 2003, subject to any statutory provision or rule of law, the Tribunal was obliged to perform its functions in a manner compatible with the State’s obligations under the ECHR’s provisions. In that regard, “functions” included powers and duties, and references to the performance of functions included references to the exercise of the powers and the performance of the duties. The court accepted that the Tribunal came within the ambit of s. 3 of the ECHR Act 2003.
It noted that the sole function of the Tribunal was to consider appeals and either affirm the recommendation of the Office of the Refugee Applications Commissioner or recommend that an applicant should be declared a refugee. It held that only certain rights under the ECHR were relevant to the performance of the functions of the Tribunal.
It held that a claim for refugee status had a distinct procedure with a clear set of criteria. To qualify as a refugee, a person had to come within a specific definition within the terms of the Refugee Act 1996. As a claim for refugee status did not address constitutional or ECHR rights, applicants who were not successful were left in exactly the same position as they had been before their application. No question of deportation or refoulement arose at that stage. There was no interference with any constitutional or ECHR rights as a result of a refusal to recommend refugee status.
The court acknowledged that constitutional and ECHR rights and principles could not be said to be inapplicable to a decision of the Refugee Appeals Tribunal. For instance, an applicant could raise a claim for breach of fair procedures and constitutional justice. However, the rights available under the Constitution and the ECHR were applicable to the manner in which the Tribunal carried out its functions, but did not arise in terms of making an assessment on refugee status.
It noted that the constitutional and Convention rights of an applicant would be in issue when the Minister was considering the making of a deportation order.
The court held that s. 4 of the Act of 2003 was addressed to the obligations of a court, and created no obligation in respect of the functions of the Tribunal.
Finally, the applicant argued that because of the manner in which the jurisprudence of the European Court of Human Rights had become relevant when considering the proper application of EU law, there was an obligation on the Tribunal to consider the provisions of the ECHR.
The court held that the Charter of Fundamental Rights and the provisions of Article 6 of the Treaty on the Functioning of the European Union were relevant where EU law was applied. However, no provision of Community law required protection decision-makers to apply the provisions of the ECHR when taking protection decisions, save that the Charter’s right to an adequate remedy applied to the procedures whereby protection decisions were taken. The court was not persuaded that the existence of the Procedures Directive and the Qualification Directive triggered any requirement on a decision-maker to consider articles of the ECHR.
Accordingly, it refused the applicant leave to seek judicial review.