SUN [South Africa] v Refugee Applications Commissioner

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Respondent/Defendant:Minister for Justice and Equality et al
Court/s:High Court
Nature of Proceedings:High Court of Ireland; Inter Partes; Application for Leave for Judicial Review
Judgment Date/s:30 Mar 2012
Judge:Cooke J
Category:Refugee Law
Keywords:Country of Origin (Safe), Refugee
Country of Origin:South Africia
URL:http://www.courts.ie/judgments.nsf/6681dee4565ecf2c80256e7e0052005b/304cf9a67af4206c80257a6400543b0b?OpenDocument
Geographic Focus:Ireland

Facts:
This case concerned the absence of an oral hearing on appeal to the Refugee Appeals Tribunal where the Refugee Applications Commissioner makes a finding under s. 13(5) and (6)(e) of the Refugee Act 1996 that the applicant was a national of a country designated by the Minister as a ‘safe country’ pursuant to s. 12(4) of the 1996 Act.

The applicant was a national of South Africa, claiming a well founded fear as a member of the Venda ethnic group targeted by members of the Zulu ethnicity. The Commissioner had found against the applicant because of a disbelief of the applicant’s personal credibility.

Reasoning:
The Court said that the central issue raised in the application as commenced was the legality of the provisions under which South Africa had been designated as a safe country of origin with the consequential effect that had on the onus of proof faced by the applicant. The Court directed, however, the trial of a preliminary issue, i.e., where the Commissioner’s negative recommendation is based primarily on a finding of lack of personal credibility, is the exclusion of an oral hearing by reason only of the designation of the applicant’s country of nationality as safe compatible with the obligation of the State to provide a remedy that is effective under EU law and in line with fair procedures under the Constitution?

S. 12 of the 1996 Act provides for prioritisation of certain classes of application. One of the classes is that of applicants who are nationals of or who have a right of residence in a country designated as safe, and allows for Minister to designate a country as safe. The Minister designated South Africa as a safe country of origin by SI No. 714 of 2004.

The entitlement to ask for an oral hearing is excluded where the Commissioner’s recommendation includes any one of a number of findings specified in s. 13(6) of the Act, one of which is that the applicant is a national of, or has a right of residence in, a safe country of origin.

The Court said that the first question that arose was whether the inclusion of such a finding is mandatory in any case where it arises, or whether the Commissioner has a discretion to decide not to include such a finding.

The Court said that the wording of the statue clearly indicates an intention to leave to the judgment of the Commissioner the matters appropriate for the contents of the report, that cases may frequently arise where it would be possible or appropriate for the Commissioner to reach a conclusion on the recommendation without having to come to a view on the matters under ss. (6), and that ss. (6)(e) could have been cast in mandatory terms, had the Oireachtas intended a finding on safe country of origin to always be included where an applicant was from a country so designated.

The Court said that s. 13(5) falls to be interpreted as leaving to the judgment and discretion of the Commissioner the decision to make one or more findings under s. 13(6).

The Court said that the issue then arose re what criteria the Commissioner ought to take into account when making the judgment or exercising his discretion and, in particular, whether there is an obligation to omit the ss. 6(e) finding where the Commissioner’s negative recommendation is to be made primarily on a finding of lack of credibility.

The Court said that the issue that arose concerns the effectiveness of the remedy by way of appeal to the Tribunal where an applicant has been automatically deprived of an oral re-hearing before the Tribunal by reason of the fact that a finding had been included in the Commissioner’s report to the effect that the applicant is a national of a safe country of origin, and in particular where the applicant had been found lacking in personal credibility. The Court said that where the issue of credibility is clearly fundamental to the appeal, and the events and facts as described by the applicant are of a kind that could have taken place (as opposed to matters which are demonstrated to be impossible by independent evidence) but have been rejected because the applicant has been disbelieved, the effectiveness of the appeal as a matter of law is dependent on the availability to the applicant of an opportunity of persuading the deciding authority on appeal that he or she is personally credible in the matter. The Court said this is all the more obvious where the removal of an oral hearing is the result of a factor with no necessary connection with the issue to be raised on appeal. The Court said that the adverse presumption combined with the removal of the opportunity to rectify the personal impression the applicant makes on the decision maker tips the balance of proof against the applicant in a way that is unfair in that it results from a consideration which has no necessary connection with the applicant’s conduct, testimony or the inherent nature of his claim namely the fact of his nationality.

Decision:
The Court held that where the Commissioner has discretion, as it has here, as to the inclusion in the s. 13 report of a statutory finding under s. 13(6), the obligation to ensure that an applicant has access to an effective remedy by way of an appeal to the Tribunal requires that the finding re safe country ought not to be included when the effect will be to deprive the applicant of an oral hearing in an appeal against a negative recommendation which is based predominantly on a lack of credibility. The Court said that each of the preliminary questions must be answered in the affirmative, and said it would hear the parties re the final order.

Principles:

The wording of the statue clearly indicates an intention to leave to the judgment of the Commissioner the matters appropriate for the contents of the report, that cases may frequently arise where it would be possible or appropriate for the Commissioner to reach a conclusion on the recommendation without having to come to a view on the matters under ss. (6), and that ss. (6)(e) could have been cast in mandatory terms, had the Oireachtas intended a finding on safe country of origin to always be included where an applicant was from a country so designated. 

S. 13(5) of the Refugee Act 1996 falls to be interpreted as leaving to the judgment and discretion of the Commissioner the decision to make one or more findings under s. 13(6). 

Where the issue of credibility is clearly fundamental to the appeal, and the events and facts as described by the applicant are of a kind that could have taken place (as opposed to matters which are demonstrated to be impossible by independent evidence) but have been rejected because the applicant has been disbelieved, the effectiveness of the appeal as a matter of law is dependent on the availability to the applicant of an opportunity of persuading the deciding authority on appeal that he or she is personally credible in the matter. 

An adverse credibility presumption combined with a removal of the opportunity to rectify the personal impression the applicant makes on the decision maker tips the balance of proof against the applicant in a way that is unfair in that it results from a consideration which has no necessary connection with the applicant’s conduct, testimony or the inherent nature of his claim namely the fact of his nationality.

Where the Refugee Applications Commissioner has discretion, as it has here, as to the inclusion in the s. 13 report of a statutory finding under s. 13(6), the obligation to ensure that an applicant has access to an effective remedy by way of an appeal to the Tribunal requires that the finding re safe country ought not to be included when the effect will be to deprive the applicant of an oral hearing in an appeal against a negative recommendation which is based predominantly on a lack of credibility.

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