AB v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 30 June 2006
• Neutral Citation: [2006] IEHC 237
• Court: High Court
• Date: 30 June 2006
• Docket Number: [2005/959 J.R.]

[2006] IEHC 237

THE HIGH COURT

[2005/959 J.R.]

BOTAN v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE

JUDICIAL REVIEW

BETWEEN

A.B.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(B)

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S13(6)(B)

REFUGEE ACT 1996 S13(6)(D)

OJELABI v REFUGEE APPEALS TRIBUNAL &MIN FOR JUSTICE UNREP PEART 9.12.2005 2005/48/10025

BUJARI v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HIGH COURT FINLAY GEOGHEGAN J 7.5.2003 2003/7/1414

UNHCR HANDBOOK

ART 26 OF THE CONSTITUTION & S5 & S10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 2000 2 IR 360

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL UNREP HIGH PEART 9.7.2004 (EX TEMPORE)

IMAFU v MIN FOR JUSTICE & ORS UNREP HIGH COURT PEART 9.12.2005 2005 IEHC 416 2005/31/6380

IMMIGRATION:

Asylum

Appeal - Judicial review - Leave to apply for judicial review - Extension of 14 day period- False Statements - Credibility - Court to have regard to principles applicable to applications for judicial review at leave stage - Limited role of courts in tribunal's determination of credibility - Bujari v Minister for Justice, Equality and Law Reform (Unrep, Finlay Geoghegan J,7/5/2003) followed - Burden of proof lies on the person submitting a claim - Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 considered - Fair procedures - Bujari v Minister for Justice, Equality and Law Reform (Unrep, Finlay Geoghegan J,7/5/2003) considered - Whether there is an obligation on the decision maker to consider and assess an explanation provided by an applicant on the facts of the case - Whether country of origin information was not before the tribunal - Whether tribunal member failed to assess all elements of the applicant's claim- Da Silveira v Refugee Appeals Tribunal (Unrep, Peart J, 9/7/2004) distinguished - Consistent with Imafu v Minister for Justice [2005] IEHC 416 (Unrep, Peart J, 9/12/2005) - Whether the member of the tribunal errant in principle - Application dismissed (2005/959JR - Feeney J - 30/6/2006) [2006] IEHC 237 Botan v Refugee Appeals Tribunal

the applicant sought leave to bring judicial review proceedings challenging a decision of the Refugee Appeals Tribunal refusing his appeal against a recommendation of the Refugee Applications Commissioner that he not be declared a refugee. The applicant alleged, inter alia, that the Tribunal erred in law and acted in breach of fair procedures in determining that the application for asylum was manifestly unfounded in the basis of an assessment of the applicant’s credibility. He contended that the respondent failed to properly consider country of origin information and apply a forward looking test in determining whether he had a well founded fear of persecution.

Held by Feeney J in refusing the applicant leave that there was material available to the respondent to allow him to determine that the applicant had made statements or provided information in support of his application of such a false contradictory, misleading or incomplete nature as to allow the conclusion that the application was manifestly unfounded. The applicant’s lack of credibility in turn fundamentally infected the subjective element of an alleged well founded fear of persecution.

Reporter: P.C.

Mr. Justice Feeney

1 This is an application brought for leave to appeal by way of judicial review a decision of the Refugee Appeals Tribunal dated the 8th June, 2005. The decision was sent to the Applicant by letter dated the 9th June, 2005. The application for leave to apply for judicial review was made by notice of motion dated the 1st September, 2005 and included within the terms of the notice in sub paragraph D an application for an order for an extension of time within which to bring an application for judicial review, pursuant to section 5(2)(a) of the Illegal Immigrants (Trafficking) Act2000. The High Court is permitted under that subsection to extend the time if there is good and sufficient reason. Having considered the affidavit of the Applicant, A.B., sworn herein on the 1st September, 2005 and in particular the contents of paragraph 12 thereof I am satisfied that there are good and sufficient grounds to grant an extension of the 14 day period provided for in section 5 up to and including the 1st September, 2005. It is apparent from the averments contained in paragraph 12 that immediately on receipt of the decision that the Respondent contacted the Refugee Legal Service and that thereafter it was their internal procedures, in seeking opinions from counsel, which caused the delay in the commencement of this application. It is apparent that the reason the proceedings were initiated outside the statutory time limit was because legal aid had to be sought and obtained and that it was the time involved in obtaining such legal aid which caused the delay. I have already indicated during the course of the hearing that the time for the making of this application should be extended up to and including the 1st September, 2005.

2 Pursuant to section 5(2)(b) of the 2000 Act this court is obliged to be satisfied that there are substantial grounds for contending that the decision of the Refugee Appeals Tribunal ought to be quashed.

3 The factual background to this application is that the Applicant who is a Kurd from Iraq arrived in the United Kingdom on the 31st July, 2000. It is apparent from documentation received from the United Kingdom Home Office that when the Applicant arrived there he identified himself as Salah Mohamad Rashid Khalil with a date of birth of the 1st July, 1974. The Home Office document indicates that the Applicant arrived without documents and claimed asylum on the day of his arrival using the name Khalil. The application for asylum was pursued with that name and date of birth and the application was refused on the 31st March, 2001 and thereafter the Applicant lodged an appeal to the United Kingdom authorities on the 8th May, 2001. The appeal was dismissed on the 6th February, 2002, with all appeal rights deemed to have been exhausted on the 7th May, 2002.

4 The Applicant subsequently came to Ireland arriving on the 17th November, 2002 and applied for asylum. The application for asylum was made in the name of A.B. and an application for refugee status questionnaire was completed by the Applicant on the 30th November, 2002. The name of A.B. was used and the date of birth which was given was the 21st April, 1980.

5 Thereafter the application proceeded on the basis of that name and date of birth without any reference to the previous application under a different name in the United Kingdom. The fact and existence of the previous application for refugee status in the United Kingdom under a different name was not disclosed by the Applicant until the Home Office of the United Kingdom had confirmed, from fingerprints supplied, a positive match with the fingerprints of the Applicant and the person known in the United Kingdom as Salah Mohamad Rashid Khalil.

6 Initially the Refugee Applications Commissioner recommended that the Applicant be returned to the United Kingdom and that recommendation was overturned by the Refugee Appeals Tribunal by decision dated the 2nd February, 2004. The consequences of that decision was that the Applicant's application for a declaration as a refugee was considered within this State and the Applicant's file was sent to a Refugee Applications Commissioner for the purposes of carrying out an investigation as provided for under section 11 of the Refugee Act1996 (as amended). As part of that process the Applicant was interviewed on the 6th May, 2004. In the initial questionnaire the applicant had stated that he had left Iraq on the 25th October, 2002. In fact the Applicant had been in the United Kingdom from the 31st July, 2000. During the interview the Applicant indicated that he had left Iraq on the 5th June, 2000 and not in 2002 and purported to explain the discrepancy in relation to different names and dates by claiming that his correct name was the one initially given to the Irish authorities and in respect of which this application is brought and that the failure to inform the Irish authorities of the application in the United Kingdom was because the Applicant claimed that he...