A.A.S v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 07 February 2013
• Neutral Citation: [2013] IEHC 44
• Date: 07 February 2013

[2013] IEHC 44

THE HIGH COURT

[No.787 J.R./2011]

S (AA) v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

A. A. S.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

REFUGEE ACT 1996 S11A(1)(B)

REFUGEE ACT 1996 S11(3)

REFUGEE ACT 1996 S11

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

Judicial Review - Asylum - Refugee Appeals Tribunal - Credibility findings - Rationality - Adequate reasoning - Clear findings - Remittal

Facts: The applicant was a Somalia national who arrived in Ireland in 2003 as an unaccompanied minor. He claimed that his parents were murdered due to the family”s Bajuni ethnicity and therefore he fled for that reason. He stated he was in fear of persecution if returned to his country of origin. He applied for refugee status but the application was rejected at first instance and on appeal on the basis of negative credibility findings made against the applicant”s account. He had made a similar application in Luxembourg which he had initially failed to disclose that revealed that he claimed he was actually a national of Burundi.

An application for leave to apply for judicial review was made and accepted on the grounds that that the Refugee Appeals Tribunal had failed to assess whether the applicant had a well founded fear of persecution if returned to Somalia, that it had failed to make a clear finding whether he was both Bajuni and Somali, and that it had erred in finding that the applicant had submitted no documentation in support of his application.

Held by Mac Eochaidh J that the Tribunal”s finding that the applicant had not provided any documentation in support of his application was plainly erroneous. He had provided correspondence with a lawyer in Luxembourg who had assisted him in his asylum application there as well as two letters from the Irish Bajuni Friendship Association that confirmed he was fluent Bajuni speaker. However, it was held that this was not the central matter to be determined and could not persuade the court to allow the reliefs sought on this basis solely. The correct nationality ethnicity of the applicant was the key in this case, and it would have been expected that a clear finding on this issue was made by the Refugee Appeals Tribunal.

The applicant had admitted to the asylum application in Luxembourg only when it was confirmed by those authorities. He accepted he had applied as a Burundian national but only because the person that had helped him travel from Somalia to Luxembourg advised him to do so. Contrary to the finding of the Tribunal, Mac Eochaidh J held that as the applicant was a minor at the time, it was plausible that he had given false details on the advice of another. It was further held that whilst the Tribunal”s reasons discussed the nationality and ethnicity of the applicant, a conclusion does not appear to have been reached. If a definitive finding was reached, there was certainly inadequate reasoning given. The Tribunal was required to reach a firm and well reasoned decision on the issue of the applicant”s ethnicity and nationality and it had failed to do so. The application was therefore accepted.

Decision quashed and matter remitted to the Refugee Appeals Tribunal.

1 JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 7th day of February 2013

2 1. This is an application for judicial review following the grant of leave by Clark J. on 17 ^th May 2012, permitting the applicant to pursue the following complaints:

3 (i) The decision of the Refugee Appeals Tribunal is flawed by reason of the failure of the Tribunal to assess whether the applicant has a well-founded fear of persecution in Somalia due to his Bajuni ethnicity.

4 (ii) The decision of the Tribunal is flawed by reason of the failure of the Tribunal to engage with or make a specific finding as to whether the applicant was Bajuni and Somali.

5 (iii) The Tribunal placed reliance on a significant error of fact when it stated that the applicant "had not provided any documentation in support of his claim where certain documentation had been submitted".

6 2. Certain features of this case are worth mentioning at the outset. Firstly, no oral hearing of the applicant's appeal to the Tribunal took place.

7 3. Secondly, the decision in suit is the fourth occasion on which the Refugee Appeals Tribunal has sought to assess the application for international protection. Two of its previous decisions were agreed by the Tribunal to have been deficient without litigation. The third decision resulted in a grant of leave to seek judicial review on 15 ^th September 2010, and the decision was set aside with the consent of the parties the following day.

8 4. Thirdly, before his Irish application,the applicant applied for refugee status in Luxembourg, appealed that decision and then sought a court review. He lied about these facts when he sought refugee status in Ireland.

9 5. Section 11A(1)(b) of the Refugee Act 1996 (as amended) triggers a presumption that an applicant is not a refugee where that applicant "had lodged a prior application for asylum in another State party to the Geneva Convention". Thus, in accordance with s. 11, the applicant, if he were to succeed in his asylim application, needed to dislodge the negative presumption which acted against him by operation of law. But s. 11A(3) of the Act provides that it is for the applicant "to show that he or she is a refugee". The presumption that one is not a refugee by virtue of having made an earlier application for refugee status is clearly rebuttable on proof that one is a refugee. Thus the negative presumption is without significant effect in circumstances where the proof required to establish refugee status will rebut the negative presumption and the burden of proof applied is the same with or without the presumption that the applicant is not a refugee. It need hardly be said that the Tribunal should not confuse the presumption which arises from the fact that an earlier asylum application was made, with a lack of candour about the earlier application. There may be understandable reasons for such lack of candour. The fact that an applicant has been untruthful about such a matter or indeed any relevant matter does not disentitle such person from a declaration of refugee status or from subsidiary protection..

Background Facts

10 6. Briefly stated, the applicant's asserted status is that of a national of Somalia who fears persecution because of his minority Bajuni ethnicity. That Bajuni people suffer persecution from majority clans was not in any real controversy in this case. The applicant claims that his parents were murdered and that he escaped from Somalia in 2003 and arrived as an unaccompanied minor in Ireland.

11 7. It is of central significance in this case that the applicant has always maintained his Bajuni ethnicity and Somalian nationality. That he spoke Bajuni was noted on an Unaccompanied Minor's Referral Form. On the ASY1 Form, it was noted that "the Bajunian interpreter was present during this interview … this applicant stated that he left Somalia on the 5/10/2003". In addition, the applicant's Section 11 interview was conducted in Bajuni and with the aid of a Bajuni interpreter. In this regard I have been shown the 'Interview-Interpreter Form' which instructs the interpreter that "where an interpreter encounters any difficulty in interpreting during an interview, such as happens with dialect, this should clearly be stated to the interviewer". The form is signed by the interpreter and there is no indication that there was any difficulty with dialect or any other matter during the course of the interpretation of the interview said to have been conducted in Bajuni. Letters from the Irish Bajuni Somali Association attesting to the applicant being Bajuni were submitted to the Tribunal.

12 8. The applicant admits that he failed to disclose the fact of his application for asylum in Luxembourg when he sought international protection in Ireland. Central to the Luxembourg application was the assertion by the applicant that he was a national of Burundi and not of Somalia. He says the reason for his application as a Burundian was that he was so advised by the agent or facilitator who had arranged his transit from his home to Luxembourg.

13 9. The Office of the Refugee Appeals Commissioner found that the applicant had applied for asylum in Luxembourg as a Somali. This was an important negative finding which the applicant would be required to overturn on appeal if he were to have any chance of obtaining a favourable decision. If the applicant...