Ali v Minister for Justice & Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 26 May 2004
• Neutral Citation: [2004] IEHC 108
• Docket Number: HC 241\04
• Court: High Court
• Date: 26 May 2004

[2004] IEHC 108

THE HIGH COURT

HC 241\04

Record No. 2003 No.400JR

ALI v. MINISTER FOR JUSTICE & REFUGEE APPEALS TRIBUNAL

JUDICIAL REVIEW

BETWEEN:

RASHEED ALI

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

AND

THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

Citations:

REFUGEE ACT 1996 S13(1)

HATHAWAY THE LAW OF REFUGEE STATUS 1991 169

RAJUDEEN V MIN EMPLOYMENT 1985 55 NR 129 (FCA)

GANAGEE JANET PERMANAND T87-101-10167 10.8.1987

Abstract:

Judicial review - Certiorari - Refugee law - Immigration and asylum - Fair procedures - Whether decision to refuse refugee status flawed - Whether applicant had well-founded fear of persecution - Refugee Act, 1996 - Immigration Act, 1999 - Illegal Immigrants (Trafficking) Act, 2000.

Facts: The applicant had arrived in the State from Ghana and had applied for refugee status. The Refugee Applications Commissioner had concluded that the applicant did not have a well-founded fear of persecution and had recommended that he be refused refugee status. The applicant had appealed the decision to the Refugee Appeals Tribunal which confirmed the decision of the Commissioner. The applicant initiated proceedings seeking leave to bring judicial review proceedings to challenge the decision of the on a number of grounds including the finding that the applicant did not have a well-founded fear of prosecution. In addition it was submitted that a proper investigation had not been carried out into the possibility of safe relocation for the applicant in his country.

Held by Mr. Justice Peart in dismissing the application. If there was evidence before the respondents that the applicant was fleeing prosecution for activities in his country rather than persecution then the court would not interfere with the decision. It was certainly open on the evidence presented for the respondents to reach the conclusion that the applicant was being sought by the authorities on the suspicion for having committed a crime and that the applicant was not at risk of persecution.

Reporter: R.F.

Judgment of

Mr Justice Michael Peart

1 The applicant was born in Ghana, and on his arrival in this country at the end of January 2002, via Amsterdam, was aged 20 years, having been born on the 3^rd November 1981.

2 On arrival he completed an application for refugee status on 24^th January 2002, in which he stated, inter alia, that he was single, and that his mother was a member of the Kussasi tribe, and that his father was a member of the Gonja tribe in Ghana, Prior to his departure from Ghana he had resided in the Bawku region of Ghana, and was of the Muslim religion. In that application form he stated that he had been a member of a political organisation known hereafter as "the NDC party", to which the Kussasi tribe traditionally give allegiance.

3 It appears that another tribe in Ghana is known as the Mamprusi tribe, and that members of that tribe predominantly owe allegiance to another political party, the New Patriotic Party, which is referred to as the NPP party, and rivalry between the NPP party and the NDC party is fierce and violent. In December 2001 the NPP party assumed power in Ghana, having been successful over the NDC party in December 2000.

4 In his application form for refugee status, the applicant explained that his uncle sold a portion of his land to a member of the opposing party/tribe, namely a member of the Mamprusi and that his family did not agree to this transaction, and accordingly burnt down a kiosk which had been erected on the piece of land in question, and that two days later on the 2^nd December 2001 members of the Mamprusi tribe burnt down a kiosk belonging to the applicant's family by way of retaliation, and in addition ambushed and burnt a truck, killing the driver and his companion.

5 Following this event he stated that a demonstration was organised in relation to the killings and the tribal rivalry, as well as in relation to the manner in which the police were handling complaints by the NDC "the party to which the applicant's family owes allegiance".

6 He states that the police were called to this demonstration at which five people were killed. He says that the police started firing guns, and also that on 3^rd December 2001, while staying at a friend's house he learned that "there was war in the city" "Bawku" and that his house had been attacked and burnt, and that members of the Mamprusi tribe "NPP" were looking for him, and that he therefore ran away to another town called Kumasi, staying in a village called Besiase until his friends could contact his mother. He stated that his mother arranged for him to go to Accra which is in another region of Ghana away from the trouble, and that later he was informed that his father had been one of those people killed in Bawku during the clashes there.

7 In his application form he gave this information in a paragraph of the questionnaire which seeks information as to why the applicant is seeking refugee status, and in which he is urged to supply full information bearing in mind the requirement to demonstrate a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and is unwilling to avail himself of the protection of his country of origin.

8 Subsequently the applicant was interviewed on the 5^th July 2002 in relation to his application for refugee status. He was asked to explain his reasons for seeking asylum here, and in answer to this question he explained his reasons in the following way:

"For a long there have been ethnic problems between the Kusasis "his mother's tribe" and the Mamprusis "the opposing tribe". The township is divided according to the two main political parties. The Kusasi support the NDC and the Mamprusi support the NPP. I joined the NDC youth wing. I helped the party to recruit young people. After the 2000 elections ballot boxes were brought in a later hour. The officer in charge of one ballot box did not accompany it to the community centre. This raised suspicions. Some people said the box was in one place, others said it was somewhere else. People protested inside and around the community centre. The police fired shots to disperse people. Some people had guns and began firing them. Some had very sophisticated weapons such as AK 47s. Others had bows and arrows and knives. It was the police who fired first.

My elder brother was a polling agent for the NDC. He and I were attacked. I was beaten badly. I had a cut on my head, and a bone in my right hand was dislocated. The fighting was between the rival ethnic groups. I fought back. It was give and take. People used chairs and tables as weapons. My brother was badly injured and died before reaching hospital. There were many deaths and injuries. Some people went into the bush and never came back. Not less than 20 people were killed. It took three or four months for me to recover from my injuries. It was a long time before I could write again. The Mamprusi suffered a lot. More of them died than Kusasi. Houses were burned. I made a number of complaints to the police. They said they would take action but did nothing. The people on the streets realised that the police were on the side of the one political party – the NPP. Dawn to dusk curfews were imposed after the elections and the military were brought in to calm the situation.

If people insinuate, even without proof, that you were involved in violence against their ethnic group, you could become a target. If you are involved in the activities of a political party, you can become a target.

Since then life has not been normal. When walking on the streets people made comments such as "you will see" in a threatening manner. I was attacked a number of times. My mum worked for an NGO headed by the wife of the former President, Jerry Rawlings. The NGO was the "21^st December Women's Movement"[corrected to "31 December Women's" Club by letter from the applicant's solicitor dated 22^nd July 2002]. When it is known that you belong to a party you become an enemy of the ethnic group which supports the other party.

The NDC lost the parliamentary seat for Bawku Central. The Mamprusis and NPP said that if the NPP had not created tensions and raised questions about the ballot boxes which were not accompanied to the Community Centre, the NDC would have managed to steal the election. They said that they wanted to cheat. When the NDC lost the elections, the NPP and the Mamprusi said that the families who suffered during NDC government should now retaliate for all the things that were committed against them.

A piece of land which belonged to my family had been sold some years back. There was a problem in relation to this which had not been resolved. There was a kiosk located on the land. On Friday 30^th November 2001, my uncle had a problem with the owner of the kiosk and lottery transactions. In anger my uncle and his friends burned down the kiosk. The elders tried unsuccessfully to resolve the problems. On Sunday the Mamprusis burned down some kiosks, including one belonging to my family. My family's kiosk was their main target. People went on the rampage and a lot of property was burned down. Because of my last experience I was very cautions. I was already a target and had to be very careful. The Mamprusis burned a car. At the end of Sunday I heard that five people were killed by the Mamprusis; some people say that the death toll was higher. We organised ourselves. In the afternoon we held a demonstration. During the demonstration some of the people destroyed a pick-up truck. There was nobody in it. The police arrived. They were shooting in the air, and catching and beating people. I was beaten by them with a bolt. [The interview notes indicate that at this point the applicant showed the interviewer some scars on his left shoulder and upper arm]. I was grabbed by the police...