Appeal number 9/2012

IpsofactoJ.com: International Cases [2015A] Part 3 Case 5 [SCIre]


SUPRREME COURT OF IRELAND

Coram

M.A.R.A. (Nigeria)

(an infant suing by her mother

and next friend O.A.)

- vs -

Minister for Justice

and Equality

Denham CJ

Hardiman J

Clarke J

Dunne J

Charleton J

12 DECEMBER 2014


Judgment

Justice Charleton

  1. The applicant/appellant is an infant asylum seeker who was born in Ireland in late 2010. Her mother, who is also the next friend in this case, came to Ireland from Nigeria in August 2005 and applied for asylum for herself. That claim was rejected by the Refugee Applications Commissioner in November of that same year. Subsequently and separately, applications were made by her on behalf of her two daughters. On 12th July, 2011, the claim of this applicant/appellant was rejected by the Refugee Applications Commissioner. The grounds put forward by her mother for seeking the State’s protection on her behalf consisted of a claimed fear by her mother that she would be subjected to female circumcision in Nigeria and that pressure to undergo this invasive procedure would come from her family and neighbours and that defiance would have unpleasant consequences from a magic practitioner, apparently called “the Mascurate”. Leave was sought before the High Court to challenge by way of judicial review the finding refusing this infant applicant/appellant a recommendation that she be declared a refugee. This is an appeal from that judgment and order of Cooke J dated 19th December, 2011 (Unreported, High Court, Cooke J, 19th December, 2011) wherein he acceded to a motion from the respondents to dismiss the applicant/appellant’s claim for leave to commence a judicial review; holding that a High Court challenge was bound to fail. The trial judge held that whatever alleged defects there might be claimed to be in the analysis of the application by the Refugee Applications Commissioner, under section 13 of the Refugee Act 1996 as amended (“Act of 1996”), in deciding that this applicant/appellant was not a refugee, this would be most properly cured by a statutory appeal to the Refugee Appeals Tribunal and that, in all the circumstances, judicial review was not an appropriate remedy. Paragraphs 9 and 10 of his judgment state his reasoning:

  2. It is now well settled in law that where the statutory appeal is available and has been invoked in good time, it is only in exceptional cases that the High Court will entertain an application for judicial review of the s. 13 Report and only then when the report is shown to have some potentially independent consequences for an applicant which is incapable or inapt to be dealt with by the statutory appeal.

    Having regard to the fact that the only issue in this case is the reality of the alleged fear that this infant might be exposed to a risk of forcible circumcision against the wishes of her mother if returned to Nigeria, the Court is satisfied that no valid reason has been advanced as to why the statutory appeal in this case would be inadequate, ineffective, or inconvenient. In practical terms, as this child has never been to Nigeria and whose existence may not even be known to her mother’s husband (who has in any event disappeared), the only appealable aspects of the s. 13 Report will appear to turn upon the possibility of a general threat to the child of circumcision in Nigeria and the availability of local protection against the specific alleged threat from the family or the village, if the mother and child relocated elsewhere. These are issues that turn upon consultation of country of origin information at this stage and are clearly dealt with adequately and more conveniently by the statutory appeal.

  3. While that judgment was appealed to this Court, no stone was left unturned on behalf of the applicant/appellant: on her behalf, her mother also exercised the statutory right of appeal to the Refugee Appeals Tribunal and, in addition, later sought subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006. The appeal to the Refugee Appeals Tribunal was rejected and so was the application for subsidiary protection. The former decision was notified to the applicant/appellant through her mother by letter dated 30th April, 2012 which also enclosed the relevant report. The trend of reasoning by the Refugee Appeals Tribunal focused particularly on the credibility of the claim made. The following quotation indicates the approach taken:

  4. The Applicant’s mother indicates that she fears that [her infant daughter] will have to be circumcised in Nigeria and that were the Applicant to go to Nigeria she would have to see a ‘Mascurate’ or be harmed by the Mascurate. The Applicant’s mother previously sought asylum for the Applicant’s sister [redacted] but no mention was made of a fear of [female genital mutilation] or a fear of the Mascurate in relation to [her, who] as a female sibling is at equal risk from the tradition of [female genital mutilation] or the Mascurate. If the Applicant’s mother’s fears of [female genital mutilation]/the Mascurate were genuine it would be reasonable to expect that she would have held these fears for [her other daughter] and previously have articulated same. The Applicant’s mother was unable to provide a reasonable explanation as to why she had not previously mentioned these fears for her [other daughter]. The aforegoing seriously undermines the well-foundedness of the Applicant’s claim.

  5. In the notice of appeal, dated 9th January 2012, against the judgment and order of Cooke J it is contended, in several forms of expression, that the report of the Refugee Applications Commissioner was not overtaken by the decision, on appeal, of the Refugee Appeals Tribunal. In particular, it is claimed that the earlier report had “potentially independent consequence” for the applicant/appellant; that it had an “independent existence”; and had “ongoing significant consequence” for this infant. In addition, it is sought to be argued that the decision of the learned trial judge striking out the judicial review leave application was incorrect. Since it is contended on behalf of the respondents that the statutory appeal from the Refugee Applications Commissioner to the Refugee Appeals Tribunal and the decision of that tribunal effectively rendered historical the earlier decision, the first issue to be decided is whether this judicial review leave application is moot. If it is, it would be inappropriate to consider the correctness of the learned trial judge’s decision to strike out the leave application on the basis of the existence of an alternative remedy. Finally, the Court has sought the assistance of counsel on the question of anonymity of asylum applicants and whether their names should be redacted notwithstanding that they very often seek judicial review in open court in the High Court of decisions against them in the otherwise private asylum process. Some guidance is needed on that point.

  6. Mootness

  7. In general, it is not the function of the courts to grant advisory judgments. A court should not pronounce on questions which are not necessary for the adjudication of the issues between the parties and should not issue a decision on points of law or of fact that no longer affect the rights and liabilities of the parties. Where an issue has already impacted on the actual entitlements of a party, or may reasonably do so in the future if left unresolved, it is appropriate to adjudicate upon it. A course of conduct may have come to an end, but if it leaves in its wake consequences for litigants, issues as to the rights and wrongs of what has happened clearly require decision.

  8. The answer to the question of whether this appeal is now moot in the light of the decision of the Refugee Appeals Tribunal depends upon the proper construction of the nature of the appeal to that body from the decision of the Refugee Applications Commissioner. That appeal, it is argued on behalf of the respondents, is in the nature of a complete re-hearing where, as a matter of statutory construction, the obligation on appeal that is cast upon the Refugee Appeals Tribunal is to fully consider and pronounce on each and every ground upon which an applicant for asylum has taken an appeal, or to otherwise make a decision as to the substance of the appeal.

  9. The Refugee Act 1996, as amended, governs the process of asylum applications. Under section 2 of the Act of 1996, as amended by section 7(a) of the Immigration Act 2003, the fundamental definition of what is a refugee is given:

  10. 2.

    In this Act “a refugee” means a person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or, owing to such fear, is unwilling to return to it, but does not include a person who—

    (a)

    is receiving from organs or agencies of the United Nations (other than the High Commissioner) protection or assistance,

    (b)

    is recognised by the competent authorities of the country in which he or she has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country,

    (c)

    there are serious grounds for considering that he or she—

    (i)

    has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes,

    (ii)

    has committed a serious non-political crime outside the State prior to his or her arrival in the State, or

    (iii)

    has been guilty of acts contrary to the purposes and principles of the United Nations.

  11. Under section 5 of the Act of 1996, the principle of non-refoulement is set out:

  12. 5.

    (1)

    A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.

    (2)

    Without prejudice to the generality of subsection (1), a person's freedom shall be regarded as being threatened if, inter alia, in the opinion of the Minister, the person is likely to be subject to a serious assault (including a serious assault of a sexual nature).

  13. A refugee is usually someone who flees from persecution in their own country and seeks asylum in another land, but the definition of what a refugee is under section 2 makes it clear that a change of authority in their country of origin can mean that a person who is already abroad for non-persecution reasons is entitled to seek refuge sur place; in other words, to seek refuge where he or she is, because of a well founded fear of persecution should they return to their country of origin. The targeted nature of the threat of persecution which is inherent in the definition of a refugee is to be contrasted with the concept of subsidiary protection. This was introduced by Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (known as the Qualification Directive). National legislation brought the Directive into force through the European Communities (Eligibility for Protection) Regulations 2006 (SI 518 of 2006) (known as the Protection Regulations). The concepts of shelter from return to persecution and subsidiary protection are inter-related. The scheme in Ireland under the relevant legislation provides that a person cannot apply for subsidiary protection unless that person has first applied for and been refused refugee status; see Regulation 2(1) (“person eligible for subsidiary protection”) of the Protection Regulations. To qualify for subsidiary protection, a person must be someone in respect of whom “substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, would face a real risk of suffering serious harm”. This is defined in Article 15 of the Qualification Directive as “torture or inhuman or degrading treatment or punishment of an applicant in the country of origin”; the “death penalty or execution”; or “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.” Under the administrative procedures currently in place, persons who have been refused refugee status, under the Act of 1996, as amended, will be sent a letter informing them that they may also seek subsidiary protection or that they may seek leave to stay in Ireland pursuant to section 3 of the Immigration Act 1999, as amended, or that they may simply depart. Section 3 of the Act of 1999 also contains detailed provisions for the deportation of those illegally in the State. If an application, should it be made, to stay in the State because of a claimed need for subsidiary protection or on separate humanitarian grounds, is not acceded to by the Minister, a deportation notice will, in very many cases, be issued. Those to whom a deportation notice issues will often be persons who have failed in their application for refugee status and, if they also applied, who have also failed, consequent upon that, in their application for subsidiary protection or for leave to remain. While this is the usual situation, a deportation order may also be made where no claim for refugee status has been made but because, for instance, a student or a tourist has overstayed the time allotted on their visa, or in respect of someone who is otherwise unlawfully in the State.

  14. Under the Act of 1996, the Refugee Applications Commissioner is established under section 6. It is declared that this statutory person “shall be independent in the exercise of his or her functions under this Act.” Pursuant to section 8, a person who arrives at the frontiers of the State seeking asylum shall be interviewed by an immigration officer, and the immigration officer shall inform that person that he or she may apply under section 8(1)(a) for a declaration of refugee status and that he or she is entitled to consult a solicitor and the United Nations High Commissioner for Refugees, or a representative in Ireland. A person so applying, under section 9, is to be given leave to enter the State. Additionally, a person who at any time is in the State (whether lawfully or unlawfully) and is seeking the status of a refugee may apply to the Minister for a declaration of refugee status pursuant to section 8(1)(c). On such an application being made, a person unlawfully in the State becomes an applicant for asylum, and thus lawfully in the State for that purpose under section 5 of the Immigration Act 2004. If a person does so apply, he or she is to be interviewed by an authorised officer or an immigration officer, who must inform the person that he or she is entitled to consult a solicitor and the High Commissioner. An applicant for refugee status is entitled to remain in the State until that process is complete pursuant to section 9(2) of the Act of 1996. This application process can be completed by the grant of refugee status, by refusal, by withdrawal of the application or by transfer to another country under the Dublin Convention. As provided for in section 11 (as amended), the function of the Refugee Applications Commissioner is “to investigate the application for the purpose of ascertaining whether the applicant is a person in respect of whom a declaration should be given.” This will involve giving directions to an authorised officer to interview the applicant concerned and to furnish a report. Under section 11A, as inserted by section 7(f) of the Immigration Act 2003, an applicant “shall be presumed not to be a refugee unless he or she has shown reasonable grounds for the contention that he or she is a refugee.” The function of the Refugee Applications Commissioner is to recommend to the Minister for Justice, Equality and Law Reform whether an applicant should be declared to be a refugee. Should a recommendation be negative, section 11A (3) provides that where an applicant appeals “against a recommendation of the Commissioner under section 13, it shall be for him or her to show that he or she is a refugee.” Credibility is central to that process. Particular provisions are set out in section 11B as to the assessment of credibility. There is a duty of cooperation upon an applicant who, under section 11C, is obliged to “furnish to the Commissioner or the Tribunal, as may be appropriate, as soon as reasonably practicable, all information in his or her possession, control or procurement relevant to his or her application.” The consequent report that is furnished to the Minister is made under section 13 (as amended). A special provision within that section can constrict the form of appeal that is available. Section 13 (5) enables a limitation on the statutory right of appeal to a documentary appeal only where no basis, or a minimal basis, has been shown for the contention that the applicant is a refugee; where false, contradictory, misleading or incomplete information has been given; where the applicant failed without reasonable cause to make an application as soon as reasonably practicable after arriving in the State; where the applicant had lodged a prior application for asylum in another state which is party to the Geneva Convention; or where the applicant was a national of, or has a right of residence in, a country of origin which has been designated a safe country by order under section 12(4). Croatia and South Africa are examples of such safe countries. Where the Refugee Applications Commissioner has decided not to recommend that an applicant be given the status of a refugee, such an applicant has, under section 13(10), an entitlement to reasons in writing together with an indication of the nature and source “of any other information relating to the application which has come to the notice of the Commissioner in the course of an investigation by him or her”. The nature of the process is investigative. It is not adversarial or bound by rules of procedure or evidence. Its purpose is to find the truth by enquiry.

  15. Section 15 of the Act of 1996, as substituted by section 11(1)(j) of the Immigration Act 1999, provides for the setting up of the Refugee Appeals Tribunal as follows:

  16. 15.

    (1)

    On the establishment day there shall stand established a Tribunal to be known as the Refugee Appeals Tribunal (in this Act referred to as ‘the Tribunal’) to consider and decide appeals under section 16 of this Act.

    (2)

    The Tribunal shall be independent in the performance of its functions.

    (3)

    The provisions of the Second Schedule shall have effect in relation to the Tribunal.

  17. Since section 16, as amended, establishes the parameters of the appeal. Since the nature of statutory appeals varies considerably from one piece of legislation to another, that section should be quoted in full:

  18. 16.

    (1)

    The applicant may appeal in the prescribed manner against a recommendation of the Commissioner under section 13 (other than a recommendation pursuant to section 13(2)).

    (2)

    The Tribunal may—

    (a)

    affirm a recommendation of the Commissioner, or

    (b)

    set aside a recommendation of the Commissioner and recommend that the applicant should be declared to be a refugee.

    (2A)

    Where an applicant fails, without reasonable cause, to attend an oral hearing under subsection (10), then unless the applicant, not later than 3 working days from the date fixed for the oral hearing, furnishes the Tribunal with an explanation for not attending the hearing which the Tribunal considers reasonable in the circumstances his or her appeal shall be deemed to be withdrawn.

    (2B)

    Where—

    (a)

    it appears to the Tribunal that an applicant is failing in his or her duty to co-operate with the Commissioner or to furnish information relevant to his or her appeal, or

    (b)

    the Minister notifies the Tribunal that he or she is of opinion that the applicant is in breach of subsection (4)(a), (4A) or (5) of section 9,

    the Tribunal shall send to the applicant a notice in writing inviting the applicant to indicate in writing (within 15 working days of the sending of the notice) whether he or she wishes to continue with his or her appeal and, if an applicant does not furnish an indication within the time specified in the notice, his or her appeal shall be deemed to be withdrawn.

    (3)

    An appeal under this section shall be brought by notice in writing within the period specified in section 13(4)(b) or 13(5)(a) or 13(8)(a), as appropriate, and the notice shall specify the grounds of appeal and, except in a case to which section 13(5) or 13(8) applies, shall indicate whether the applicant wishes the Tribunal to hold an oral hearing for the purpose of his or her appeal.

    (4)

    The Tribunal shall transmit a copy of the notice received by it under subsection (3) to the Commissioner and notification of the making of the appeal to the High Commissioner.

    (5)

    The Commissioner shall furnish the Tribunal with copies of any reports, documents or representations in writing submitted to the Commissioner under section 11 and an indication in writing of the nature and source of any other information relating to the application which has come to the notice of the Commissioner in the course of an investigation by him or her.

    (6)

    The Tribunal may, for the purposes of its functions under this Act, request the Commissioner to make such further inquiries and to furnish the Tribunal with such further information as the Tribunal considers necessary within such period as may be specified by the Tribunal.

    (7)

    The Commissioner shall furnish the Tribunal with observations in writing concerning any matter arising on the grounds of appeal whenever so requested by the Tribunal and a copy of such observations shall be furnished to the applicant concerned and his or her solicitor (if known).

    (8)

    The Tribunal shall furnish the applicant concerned and his or her solicitor (if known) and the High Commissioner whenever so requested by him or her with copies of any reports, observations, or representations in writing or any other document, furnished to the Tribunal by the Commissioner copies of which have not been previously furnished to the applicant or, as the case may be, the High Commissioner pursuant to section 11 (6) and an indication in writing of the nature and source of any other information relating to the appeal which has come to the notice of the Tribunal in the course of an appeal under this section.

    (9)

    (a)

    An applicant may withdraw his or her appeal to the Tribunal by sending notice of withdrawal to the Tribunal and the Tribunal shall, as soon as may be, notify the Minister and the Commissioner of the withdrawal.

    (b)

    Where an appeal is deemed to be withdrawn pursuant to subsection (2A) or (2B), the Tribunal shall, as soon as may be, notify the applicant, his or her solicitor (if known), the Minister and the Commissioner of the withdrawal.

    (10)

    The Tribunal shall, where appropriate, following a notice under subsection (3), hold an oral hearing for the purpose of an appeal under this section.

    (11)

    (a)

    For the purposes of an oral hearing (if any) under this section, the Tribunal may—

    (i)

    direct in writing any person whose evidence is required by the Tribunal to attend before the Tribunal on a date and at a time and place specified in the direction and there to give evidence and to produce any document or thing in his or her possession or control specified in the direction,

    (ii)

    direct any such person to produce any specified document or thing in his or her possession or control, or

    (iii)

    give any other directions for the purpose of an appeal that appear to the Tribunal reasonable and just.

    (b)

    Subparagraphs (i) and (ii) of paragraph (a) shall not apply to a document or thing relating to information as respects which the Minister or the Minister for Foreign Affairs, as the case may be, directs (which he or she is hereby empowered to do) that the information be withheld in the interest of national security or public policy (“ordre public”).

    (c)

    The Tribunal shall enable the applicant and the Commissioner or an authorised officer to be present at the hearing and present their case to the Tribunal in person or through a legal representative or other person.

    (d)

    The Tribunal shall, where necessary for the purpose of ensuring appropriate communication during the hearing, provide the applicant with the services of an interpreter.

    (12)

    Subject to subsection (13), a witness whose evidence has been or is to be given before the Tribunal shall be entitled to the same privileges and immunities as a witness in a court.

    (13)

    Where information has been supplied to the Commissioner, a Department of State or another branch or office of the public service by or on behalf of the government of another state in accordance with an undertaking (express or implied) that the information would be kept confidential, the information shall not, without the consent of the other state, be produced or further disclosed otherwise than in accordance with the undertaking.

    (14)

    An oral hearing under this section shall be held in private.

    (15)

    Notwithstanding subsection (14), the High Commissioner may be present at an oral hearing under this section for the purpose of observing the proceedings.

    (16)

    Before deciding an appeal under this section, the Tribunal shall consider the following:

    (a)

    the relevant notice under subsection (3),

    (b)

    the report of the Commissioner under section 13 (as amended by 26/2003)

    (c)

    any observations made to the Tribunal by the Commissioner or the High Commissioner,

    (d)

    the evidence adduced and any representations made at an oral hearing, if any, and

    (e)

    any documents, representations in writing or other information furnished to the Commissioner pursuant to section 11.

    (16A)

    The Tribunal shall affirm a recommendation of the Commissioner unless it is satisfied, having considered the matters referred to in subsection (16), that the applicant is a refugee.

    (17)

    (a)

    A decision of the Tribunal under subsection (2) and the reasons therefor shall be communicated by the Tribunal to the applicant concerned and his or her solicitor (if known).

    (b)

    A decision of the Tribunal under subsection (2) and the reasons therefor shall be communicated by the Tribunal to the Minister together with a copy of the report of the Commissioner under section 13.

    (c)

    A decision of the Tribunal under subsection (2) shall be communicated to the High Commissioner.

    (18)

    The Tribunal shall ensure that an appeal against a recommendation of the Commissioner to which section 13(5) or 13(8) applies shall be dealt with as soon as may be and, if necessary, before any other application for a declaration.

  19. This court has recently commented on the difficulty in construing the correct scope of powers of appeal; there in the context of a court appeal from an administrative or quasi judicial tribunal. Normally, a statutory appeal to a court from an administrative or quasi-judicial decision requires that the decision reached “was vitiated by a serious and significant error or a series of such errors” (per Finnegan P, Ulster Bank v Financial Services Ombudsman [2006] IEHC 323 (Unreported High Court, 1st November, 2006). In Clarke J’s judgment in this court in Fitzgibbon v Law Society of Ireland [2014] IESC 48 (Unreported, Supreme Court, 29th July, 2014) he points out (at paragraph 1.2) that problems can arise through the use of varying terminology in legislation in the context of appeals which can “lead to significant uncertainty as to the precise form of appeal permitted”. In some instances, recourse to the canons of construction may be necessary in order to determine whether an appeal to a court after an administrative or quasi-judicial decision amounts to a full rehearing or merely to a judicial analysis as to whether a decision was vitiated by serious error and so should be overturned and remitted for rehearing. Here, however, the function of the Refugee Appeals Tribunal is to examine afresh such aspects of the decision of the Refugee Applications Commissioner as are appealed. Initiation of an appeal, under subsection 3, is by a notice in writing. This must specify the grounds of appeal. An applicant may require an oral hearing of that appeal. Under subsection 10, there should be an oral hearing unless that has been barred under section 13(5) or section 13(8). For the purposes of the appeal, whatever information has been brought to the attention of the Refugee Applications Commissioner, or that has come to his or her notice during the investigation of the application for refugee status, should be furnished on the appeal. Subsection 16 makes it clear that, in deciding an appeal, regard is to be had to evidence, to representations, to documents, and to argument. Full disclosure of any reports, observations, or representations is required to be made to the appellant under subsection 8. Powers exist to require the attendance of witnesses, to make directions for the purposes of the appeal and for the production of documents: these are explicitly set out in subsection 11. Such powers, which are as ample, or close to as ample, as those of a court demonstrate unequivocally the duty of the Refugee Appeals Tribunal to fully scrutinise an appeal. On appeal, therefore, the issue is not simply whether any error was made at first instance. The person appealing has the right to attend and present their case in person or through a legal representative, or other individual of their choosing, under subsection 11(c).

  20. The duty of the tribunal on appeal, under subsection 16A, is either to affirm the recommendation that refugee status should be refused or the tribunal may make a positive recommendation where it is “satisfied, having considered the matters referred to in subsection (16), that the applicant is a refugee.” Hence, on appeal, there is a complete opportunity to present on behalf of the applicant in aid of this enquiry as to refugee status any new facts or arguments; to reargue the points appealed; to call new evidence for or against the status of the applicant; and to plead the case afresh and in full. The result of the appeal may be the affirmation of the Refugee Applications Commissioner in whole or in part or it may be that for a particular reason argued on appeal the applicant will be found to have established sufficient for a recommendation that the Minister grant him or her refugee status.

  21. It is clear from all of this that the form of appeal explicitly set out in the Act of 1996 is not merely a review as to whether any error had been previously made: rather, it is a full and thorough enquiry into the relevant documents and observations as previously furnished to the Refugee Applications Commissioner and the hearing of oral evidence and the reception of documentary evidence and submissions in respect of every point on which an appeal has been lodged. It is also apparent that the duty of the Refugee Appeals Tribunal is to make such rulings or finding of fact as are appropriate.

  22. It has been submitted before this Court, on behalf of the applicant/appellant, that on appeal to the Refugee Applications Commissioner issues might be elided or left without decision. The example given in argument was that an appeal might be decided solely on the basis that a substantial territory remained within the country from which the applicant for refugee status had supposedly fled where no persecution of persons of the alleged attributes of the applicant would take place without, on that appeal, deciding whether the applicant had a well founded fear of persecution or was not credible in the account which they are given. Under the Act of 1996, the decision of the Refugee Applications Commissioner is entirely subject to legal and factual review by the Refugee Appeals Tribunal. The purpose of the notice of appeal is to set out the points of fact or law that are important to the applicant and in respect of which he or she disputes the earlier decision. The appeal overturns the record of what has been decided; save and in so far as on appeal it is affirmed. It is only to the extent of that affirmation, if any, on appeal, that the earlier decision stands. In its nature, that appeal is to be regarded as an equivalent change in the record as where a person appeals a criminal conviction in the District Court to the Circuit Court. There, a convicted person may be acquitted on a rehearing or may have their conviction before the District Court affirmed by the Circuit Court. Of course, if a person seeking refugee status on appeal is found not to be a refugee, then the matter is disposed of. If that happens, there has been a hearing at first instance that did not accept that a recommendation be made to the Minister that an applicant should have refugee status and on appeal this will have been affirmed by the tribunal under subsection 16A. In so far as it may be thought necessary by the Refugee Appeals Tribunal, in some cases, to resolve appeals as to the essential point only, or to conclude that a particular issue decides the appeal, while leaving unresolved some other question raised in the notice of appeal, this does not result in any disadvantage to an applicant. Some relevant findings of fact or of law may not be disputed on the appeal. Such findings remain undisturbed notwithstanding the appeal as, under the legislation, there must be a particularisation as to what grounds of the decision of the Refugee Applications Commissioner are disputed. Once the notice of appeal initiates a dispute as to any finding of the Refugee Applications Commissioner, by that appeal such finding is neutralised unless it is affirmed by the Refugee Appeals Tribunal. It would be contrary to the principle of constitutional construction of the legislation, considered in its entirety, for the Minister to be required or entitled to have regard to any aspect of a finding that had been overturned on appeal. A similar consideration applies to any aspect of the original decision which is the subject of an appeal and which is not upheld by that process. Where the Refugee Appeals Tribunal does not consider it necessary to resolve the appeal on any such ground, but decides the appeal either positively in favour of the applicant or negatively against him or her on another ground, so much of the earlier decision as is appealed against is rendered merely historical. There is therefore no remaining or “hovering” disadvantage once an appeal is taken.

  23. In essence, an appeal within this process is an active rehearing. That is precisely what happened here. A full opportunity was given to the applicant/appellant to argue whatever points seemed to be germane to the contention made by her mother that she had a well founded fear of persecution in relation to the invasive practice of female circumcision or that she had a well founded fear of persecution by magic practitioners. An analysis of that contention took place in the context of a fair and thorough consideration of the credibility of the evidence and other materials put forward. Given that on these issues, findings of fact were made against the applicant/appellant, and given that the decision of the Refugee Applications Commissioner was affirmed under section 16A of the Act of 1996 by the Refugee Appeals Tribunal, any consideration as to whether the learned trial judge was or was not correct in leaving the applicant/appellant to her appeal remedy under legislation, as opposed to not striking out her judicial review application in the High Court, is entirely moot.

  24. Rights of anonymity

  25. Transparency in the administration of justice is part of the democratic system. Citizens are entitled to scrutinise and, it follows, comment on or respectfully criticise the decisions of the judicial branch of government. They also have a basic entitlement to know that judges are behaving properly. This requires, subject to limited exceptions, the public to be admitted to court hearings. The courts are obliged to maintain open doors. Attendance by the public can be notional, in the sense that the court admits all comers subject to the proper running of any hearing, but experience indicates that it is rarely merely only a theoretical exercise. Members of the public can and do attend in court, witnesses from each side and their family members will be present and the press, radio, and television, take a professional interest in litigation, while reporting only on a fraction of cases. Some kinds of court disputes can be so sensitive that it can be right to exclude all save for those with an immediate personal interest. Sexual violence prosecutions are an example of where the Oireachtas has decided to limit rights of attendance in court. Even there, the media can attend, in effect as a guardian of the public’s scrutiny of the proceedings, and may fairly report the facts. Restrictions may also be placed in legislation so that no one is to be identified and no fact making any identification possible is to be published. Having the doors shut to non-participants, a hearing in camera, is the highest form of shield that may be applied in exceptional circumstances to litigants. Other cases can attract lesser forms of circumspection of the public’s entitlement to attend. Hearings can take place with the door of the court open to anyone who wishes to enter, with no in camera sign displayed, but where any wider witnessing through news media is limited by the non-identification of the parties. Non-identification by itself is a lesser, but in many circumstances effective, form of limitation on the right of the public to know while allowing such attendance at the proceedings that preserves scrutiny of judicial conduct and decision making.

  26. The origin of this is Article 34.1 of the Constitution which provides:

  27. Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

  28. The case of In re R Ltd [1989] IR 126 concerned section 205(7) of the Companies Act 1963, which enabled a judge dealing with an oppression suit by the director of a company to restrict “the disclosure of information the publication of which would be seriously prejudicial to the legitimate interests of the company” through the making of an in camera order in respect of the proceedings, or any part thereof. Walsh J, giving the main majority judgment, emphasised the wholly exceptional nature of any restriction on the public nature of court hearings and the reporting thereof. An Act of the Oireachtas subsequent to the coming into force of the Constitution was required, he said; thus apparently removing from consideration any common law powers which the courts undoubtedly exercised up to 1937 to protect their own procedures. A distinction was drawn by him between legislative provisions which made an in camera proceeding mandatory, such as family law up to recent times (until the commencement of section 5 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013, which amended section 40 of the Civil Liability and Courts Act 2004), or the restriction on access to sexual violence trials to interested parties and the media subject to preserving the anonymity of the alleged victim, and provisions which vested a discretion in the court of trial. The relevant subsection in that case, section 205(7) of the Companies Act 1963, was discretionary. A legislative provision allowing a judge a discretion to order an in camera hearing was, on its own, insufficient to simply shut the doors of a hearing from beginning to end, as Walsh J made clear at pages 136-137 of the report:

  29. All evidence in proceedings before a court must be taken in public save where otherwise expressly permitted in accordance with the terms of Article 34 of the Constitution. [A statutory provision which] confers a discretionary power cannot be exercised unless the court is of opinion that the hearing of proceedings under the section would involve the disclosure of information the publication of which would be seriously prejudicial to the legitimate interests of the company. That is a condition precedent to the exercise of a discretion but in my view it is not the only condition regulating the exercise of the discretion [The] section cannot be invoked simply to conceal from the public evidence of wrongful activities on the part of the company or any member of the company or employee of the company or anybody dealing with the company or the good name of any such persons or anybody else [P]ublicity [is] inseparable from the administration of justice In seeking to avail of the protection apparently offered by the sub-section the party seeking it must be able to satisfy the court that not only would the disclosure of information be seriously prejudicial to the legitimate interests of the company, but it must also be shown that a public hearing of the whole or of that part of the proceedings which it is sought to have heard other than in a public court would fall short of the doing of justice.

  30. On the authority of that case, there has been at least one instance where the Supreme Court lessened the secrecy of an in camera hearing. In Re a Ward of Court (withholding medical treatment) (No. 2) [1996] 2 IR 79, the hearing in the High Court as to whether a severely brain damaged patient, maintained for decades in a near vegetative state, should be allowed to die, proceeded without the media ever being aware that such a case was taking place. Lynch J issued his judgment in public with appropriate redactions and in the presence of the media. When the matter came on appeal before the Supreme Court, notwithstanding the legislative provision providing for in camera hearings in the wardship jurisdiction, the media were allowed to attend and counsel were required to censor their submissions by making no oral reference to any member of the ward’s family or any witness who gave evidence in the court below. Initials were used instead at the hearing and in the subsequent judgment.

  31. In Irish Times Limited v Ireland [1998] 1 IR 359 the banning by a trial judge in the Circuit Court of any report of a criminal trial during its course by the media was in issue before the Supreme Court. This decision followed on the earlier discharge of a jury on what was a serious drug importation charge because of inaccurate newspaper reports that had been read by the jury. Morris J in the High Court construed Article 34.1 as involving both a positive requirement that court proceedings should be held with a full right of access by the public and that nothing should be done to discourage the publication to the public by the media of fair and accurate reports of proceedings. On appeal, since no legislative provision enabled that order, it was overturned. Absence of statutory authority was not the reason for the decision, however. At common law, in hearing criminal trials, the courts were entitled to restrict reporting in aid of a fair trial, a power subsequently encapsulated in Article 38.1 requiring criminal trials to be “in due course of law.” The rights identified since 1937 have proven to be similar to those in American due process law. All arise by operation of the Constitution through the need to apply such processes in the trial of offences that will yield a fair result. None of these rights arose through statute, though some may be expressed in legislative provisions. Article 40.6 incorporates the right of citizens to “express freely their convictions and opinions.” That Article also recognises the “organs of public opinion” as part of the “rightful liberty of expression, including criticism of Government policy”, enabling restriction only where these rights of expression are “used to undermine public order or morality or the authority of the State.” In that case, banning the media from reporting on an ongoing case was not necessary to ensure a fair trial. Judges have overall charge of court processes. Sometimes orders are necessary in criminal cases to ensure a fair result. For instance, arguments on the admissibility of evidence in the absence of the jury cannot be reported before the jury gives its verdict. The common law provided for this in criminal trials.

  32. Civil trials are not so different from criminal litigation. There is a right inherent in the existence of the courts under the Constitution for the public to litigate and the right to litigate may itself require protection where otherwise it may be undermined should access by the public or even the fair and accurate reporting of court proceedings not be restricted. The Irish Times decision acknowledged that in criminal trials, reports of evidence in the absence of the jury could not appear while that jury was continuing with the case and that in necessarily pressing circumstances, the right of an accused to a fair trial, and the public entitlement that such a trial should take place, might result in such restrictions of access and temporary curtailment of reporting that ensured the integrity of the court process. In the result of that case, the blanket ban imposed by the trial judge was found not to be necessary; nonetheless restrictions were possible. The mere absence of a legislative provision does not leave the courts powerless in their duty to ensure a just result and to search for the truth. As Denham J commented at page 399:

  33. While there is no discretion in Article 34.1 to order a trial otherwise than in public Article 34.1 does not exist in a vacuum. There are competing constitutional rights, rights relating to other persons and in addition the court has duties under the Constitution. The court has a duty and jurisdiction to protect constitutional rights and make such orders as are necessary to that end. There were several rights for consideration at the trial before the Circuit Court. The accused had a right to a trial in due course of law (Article 38.1) and to a trial with fair procedures (Article 40.3). The trial judge had a duty to uphold the Constitution and the law and to defend the rights of the accused. Balanced against that was the community’s right to access to the court, to information of the hearing, to the administration of justice in public (Article 34.1). That right is clearly circumscribed by the terms of Article 34.1. However, also in the balance was the freedom of expression of the community, freedom of expression central to democratic government, to enable democracy to function. There was also the freedom of expression of the press. Thus consideration should have been given to article 40.6.1º(i), which may include the publication of information: Attorney General for England and Wales v Brandon Book Publishers Ltd [1986] IR 597. The right to communicate (Article 40.3) was also a part of the panoply of rights in the bundle of rights for consideration. None of these rights in consideration are absolute. Where is there are competing rights the court should give a mutually harmonious application. If that is not possible the hierarchy of rights should be considered both as between the conflicting rights and the general welfare of society: People v Shaw [1982] IR 1 at page 56.

  34. Clarke J in Independent Newspapers (Ireland) Ltd. v Anderson [2006] 3 IR 341, summarised the applicable rules in criminal trials as encompassing both statutory intervention based on Article 34.1 and rights that otherwise need to be protected in criminal trials. His summary at paragraph 14 refers thus:

  35. Therefore it would appear that orders restricting the reporting of proceedings in court can only be made where:-

    1.

    There is an express legislative provision to that effect; and

    2.

    in the event that the relevant legislative provision contains a discretion, the court is satisfied that to have the case heard in public would fall short of doing justice; or

    3.

    in the event that there is no express legislative provision the court is satisfied that

    (a)

    there is a real risk of an unfair trial if the order is not made; and

    (b)

    the damage which would result from not making an order would not be capable of being remedied by the trial judge either by appropriate directions to the jury or otherwise.

  36. See also Doe and Doe v The Revenue Commissioners [2008] 3 IR 328. The principles thus stated are not to be confined to criminal trials. It is clear that competing rights can also arise in civil cases. As a matter of logic, the existence of competing rights in the Constitution, such as the right to the integrity of a court process or the right to litigate, as part of the “special and limited cases as may be prescribed by law” can require the courts to circumscribe either access to proceedings or reporting or both. It is clearly not enough, however, that a party may be severely embarrassed by the kind of case that they bring or even the revelation of a medical condition of a most distressing kind; Roe v The Blood Transfusion Service Board [1996] 3 IR 67. Nor is the assertion of confidence, as opposed to a legally recognised privilege against disclosure such as legal professional privilege, enough. Rights that go beyond privacy and which are such as to undermine the very nature of access to the courts through rendering such litigation impossible should there be no restrictions; or where the right threatened without anonymity is superior to the high value which the Constitution places on the administration of justice in public.

  37. It follows that Article 34.1 requires that proceedings in court be open to the public and this entails the attendance of print and broadcast media as part of the scrutiny which judicial conduct and judicial decisions are subject to in a democratic society. The media are entitled to issue, and perform a public service in circulating, fair and accurate reports of litigation. In exceptional cases, for good reasons that take account of the sensitivities of particular kinds of litigation, recognising that without privacy within court proceedings people would be inhibited to such a degree that the right to litigate would be strongly threatened, the Oireachtas is entitled to require that court proceedings be private. In terms of the protection of litigants from public scrutiny, there are degrees. Of these the strongest is, firstly, an in camera, or private, hearing where only the parties, their lawyers and their witnesses may attend together with such directly interested persons as the court permits. An in camera hearing will nonetheless result in a judicial decision and if this is in written form it should be circulated and may be published in such a form that the issues and decision may be reported but not any name or fact that will identify the parties. An in camera hearing may, secondly, be legislated for so as to allow the attendance of accredited members of the press and other media in order to enable proper reporting on behalf of the public even though the public are not to be admitted. The anonymity of the parties is preserved in any report or discussion outside the context of the proceedings. By statute, a lesser form of the protection of the privacy of proceedings, thirdly, involves the doors of the court remaining open to the public but requires that any report of what occurs during the proceedings to be anonymous as to the identities of the parties. Exceptions to the requirement of public hearings under Article 34.1 are ordinarily brought into operation through legislation; to which the courts will give effect in the degree of protection that the terms thereof require. Where, however, the courts consider that there is a legitimate and overriding public interest in the ongoing scrutiny of in camera proceedings, members of the print or broadcast media may be admitted to hearings in controlled circumstances which preserve the anonymity and privacy of litigants, where this is demonstrably possible, while upholding the integrity of their right to litigate. Such decisions are necessarily rare. They arise from the duty of the courts to uphold the special and limited nature of any exception to the requirement for public hearings. Where discretion is given in legislation to allow an in camera hearing, any decision by a court in favour of restricting public access or reporting must be limited to such cases, or such portions of cases, that involve the legitimate interests that are targeted by the legislation and where the failure to restrict the hearing would mean that the administration of justice would be undermined. Where legislation requires anonymity for particular kinds of litigants, that requirement does not need any additional scrutiny: court reports are to be redacted of names and any other fact that might reasonably lead to the identification of parties.

  38. In the overall conduct of proceedings, the courts are required under the Constitution to pursue the aim of public hearings provided for in Article 34.1 and are also obliged to have regard to the other rights that may be thus affected. These include the right to litigate and the right to privacy. These rights are provided for by law under the terms of the Constitution itself. Since privacy is a broad right that encompasses situations from embarrassment to business confidence to professional secrecy, it has to be recognised that the preponderance of court cases are a source of stress and of sensitivity to litigants. Those who come to court and seek any restriction, due to their right to litigate, on the admission of the public or the untrammelled reporting of the facts and the identity of those involved will need to go considerably beyond merely arguing privacy in urging an exception under Article 34.1. It is only if the right asserted results, as a matter of proven fact, in undermining the entitlement to litigate due to a threat to life or safety or where the nature of the aspect of the case sought to be restricted means that if the court does not intervene the litigation will be practically impossible, or futile, that there should be any restriction on the open nature of access to the courts. Even there, in the absence of express legislative requirements, any restriction should be as limited as the protection of these rights necessarily demands; targeting particular pieces of testimony rather than an entire hearing, unless this is necessary, and favouring restrictions on anonymity over a completely closed hearing, unless this is essential.

  39. This legislation

  40. Under the statutory scheme in question, an in camera hearing of judicial review proceedings is not provided for in asylum cases. Instead, the extent of restriction under Article 34.1 is provided for in section 19 of the Refugee Act 1996, as amended by section 11(1)(m) of the Immigration Act 1999 and section 7(k) of the Immigration Act 2003:

  41. (1)

    The Commissioner, the Board, the Tribunal, the Minister, the Minister for Foreign Affairs and their respective officers shall take all practicable steps to ensure that the identity of applicants [for refugee status] is kept confidential.

    (2)

    Subject to sections 9(15) and 26, no matter likely to lead members of the public to identify a person as an applicant under this Act shall be published in a written publication available to the public or be broadcast without the consent of that person.

  42. Section 26 is about an annual report to the Houses of the Oireachtas and section 9(15) concerns leave to land of a person already restricted by an exclusion order. Neither requires the public disclosure of the name of any applicant for refugee status. Neither of these exclusions are relevant to this issue. It follows from the approach of the courts to this issue that a restriction, such as that in section 19 of the Act of 1996, should be given as narrow an interpretation as its wording requires consistent with Article 34.1. In that regard, the definition of who is an applicant for refugee status is surprisingly wide. The definition section is unlimited as to time or as to result. Section 1(1) provides:

  43. "applicant" means a person who has made an application for a declaration under section 8;

  44. Insofar as relevant, section 8 merely provides that people at the frontiers of the State, or in the State, may apply for a declaration of refugee status and that upon such application and subsequent investigation a recommendation may be made that, under other provisions of the Act, a person may be declared to be a refugee. So, once Mrs B, or Mr A or Ms C has made an application claiming to be a refugee, on a literal construction of the legislation, they are thereafter an applicant. It may be argued that the end of that process with failure to achieve a recommendation of refugee status, as described above, ends their status as an applicant for refugee status. That might be the logical construction, absent the definition in section 1(1): but the clear terms of that definition mean that the status of applicant and the consequent restriction on publication of any identifying features such as name or address or particular circumstances unique to their identity is prohibited. Where a person applies for judicial review of a decision of the Refugee Appeals Tribunal, then notwithstanding that their application for refugee status has failed, they remain at that point a person who has “made an application for a declaration under section 8” of the Act of 1996. That status subsumes for all subsequent appeals and for all subsequent litigation. It follows from the statutory analysis conducted above, that a person who has applied for subsidiary protection will first have applied for, or perhaps under any new legislative or administrative arrangements will apply at the same time for, refugee status. Such a person is, and always is, a person to whom the restriction against publication of identity set out in section 19 of the Act of 1996 applies. This is not a case where section 5 of the Interpretation Act 2005 would require the courts to avoid a construction that “on a literal interpretation would be absurd or would fail to reflect the plain intention of the Oireachtas”. In legislating in this way, the Oireachtas must be thought to have had good reason to provide that anyone who applies for refugee status, no matter how apparently outlandish or incredible the grounds put forward, or no matter whether the person has thought the better of it and withdrawn the application, should retain anonymity as to anything to do with the fact that they had applied, notwithstanding any subsequent litigation in public as to the validity of refusal. The plain and unambiguous result of the wording is, clearly, that once a person has applied for refugee status that they retain anonymity with regard to any litigation relevant thereto in perpetuity. Should there be unrelated litigation, such as a factory accident, that protection remains and, while the tort case may be reported normally, any mention of any prior failed application for refugee status may not be reported publicly.

  45. There is therefore no necessity to call in aid any matter subsequent to any investigation before the Refugee Applications Commissioner or the Refugee Appeals Tribunal, anything other than section 19 of the Act of 1996. Any judicial review touching upon that, or any injunction application concerning deportation, which concerns a person who has once applied for refugee status, must preserve the anonymity of the litigant. Where questions of deportation in consequence of overstaying a tourist or student visa may arise, and where that person has not then applied for refugee status, the protection of section 19 of the Act of 1996 does not apply. Necessarily, any argument as to the protection of rights which might result in any restriction on a full public hearing and reporting of litigation will fall to be decided under the non-statutory principles previously alluded to in this judgment.

  46. Result

  47. In the result, I would dismiss this appeal. Since the applicant and her mother have applied for refugee status, albeit unsuccessfully, they remain entitled in this judgment and in any report of these court proceedings to anonymity under section 19 of the Refugee Act 1996.


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