The High Court has refused five applicants leave to challenge the Refugee Applications Commissioner’s use of a contractor to prepare draft investigation reports in asylum cases. It adjourned the matters to allow the applicants to consider whether to seek leave to appeal.
In a judgment delivered on 14 November 2016, Mr Justice Richard Humphreys said preparing draft materials or reports was assistance to the commissioner and did not require express statutory authorisation. The court found the applicants’ challenge lacked substantial grounds.
The cases were judicial review leave applications brought by M.Y.A., M.J., I.G., X.G. and F.G. against the commissioner. Their central argument, advanced by counsel for the applicants, was that although the commissioner could delegate asylum interviews to authorised officers, he could not delegate any part of the investigation or the preparation of a draft report.
They relied on sections 11 and 13 of the Refugee Act 1996, which respectively require the commissioner to investigate an application and prepare a report, and argued that the Act did not expressly authorise delegation of this work. Counsel also pointed to a separate express delegation provision for subsidiary protection cases.
The court treated the facts of M.Y.A.’s case as representative of the other applications. The applicant had come to Ireland from Bangladesh and applied for asylum on 11 June 2015. An authorised officer interviewed him on 19 January 2016. A panel member prepared a draft report dated 10 February 2016, which the commissioner later adopted on 11 May. The adopted version was also headed “draft”, the judgment said.
On the basis of the report under section 13, the commissioner recommended that the applicant not be declared a refugee. That recommendation was communicated to him on 3 August 2016. The judgment does not state the outcome of any subsequent asylum process.
Justice Humphreys said the contractor’s preparation of a draft report was not itself the exercise of the commissioner’s statutory function; it was assistance in carrying out that function. He also rejected the argument that a prior grant of leave to another applicant on the issue meant leave had to be granted in these cases. The judgment refers to an earlier leave decision in M.U.R. v. Refugee Applications Commissioner.
The court refused leave in each of the five applications. It adjourned the matters so the applicants could consider an application for leave to appeal, which, if made, was to be on notice to the respondents. Each applicant was also ordered to serve the Chief State Solicitor’s Office with a copy of the judgment within seven days.