(B) (A.G.E.R) v Refugee Appeals Tribunal & Others and Human Rights Commission (notice party)

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 04 December 2009
• Neutral Citation: [2009] IEHC 527
• Court: High Court
• Date: 04 December 2009

[2009] IEHC 527

THE HIGH COURT

[No. 1722 J.R. 2007]

B (A G E R) v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

BETWEEN

A.G.E.R.B.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM ATTORNEY GENERAL AND IRELAND

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

REFUGEE ACT 1996 S13

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL (HURLEY) & MIN FOR JUSTICE UNREP PEART 9.7.2004 2005/15/3102 2004 IEHC 436

P (V) & P (S) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP FEENEY 7.12.2007 2007/50/10642 2007 IEHC 415

RYANAIR LTD v FLYNN & MCAULEY 2000 3 IR 240 2001 1 ILRM 283 2000 ELR 161 1999/22/7306

S (SS) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 14.7.2009 2009 IEHC 329

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

R (JB) v REFUGEE APPEALS TRIBUNAL (DOURADO) UNREP PEART 31.7.2007 2007/52/11193 2007 IEHC 288

IMMIGRATION LAW

Asylum

Leave to apply for judicial review - Refusal of refugee status -Claim of persecution based on tribal membership - Adverse credibility findings - Alleged failure to have regard to evidence - Alleged basing of findings on conjecture - Whether tribunal erred in failing to apply a forward looking test regarding persecution - Country of origin information - Whether adverse findings based on errors of fact - Whether error of fact would render decision irrational - Deconstruction of credibility - Whether substantial grounds for review - Lack of credibility - Absence of evidence of past persecution - Absence of evidence of identity - Da Silveira v Refugee Appeals Tribunal [2004] IEHC 436, (Unrep, Peart J, 9/7/2004); P(V) v Refugee Appeals Tribunal [2007] IEHC 415 (Unrep, Feeney J,7/12/2007); Ryanair Limited v Flynn [2003] IR 240; S(S) v Minister for Justice, Equality and Law Reform [2009] IEHC 329, (Unrep, Cooke J, 14/7/2009) and R (JB) v Refugee Appeals Tribunal [2007] IEHC 288 (Unrep, Peart J, 31/7/2007 considered - Immigration Act 1999 (No 22), s 5 - Leave refused (2007/1722JR - Dunne J - 4/12/2009) [2009] IEHC 527

B(AGER) v Refugee Appeals Tribunal

Facts: The applicant sought leave for judicial review of a decision of the Refugee Appeals Tribunal to quash a decision of the Tribunal affirming a recommendation of the Refugee Applications Commissioner, which was adverse to the applicant obtaining refugee status. The applicant claimed to have been born in a village in Darfur and to have suffered persecution as a member of the Bergid tribe. The applicant alleged that the Tribunal had inter alia failed to assess his exposure to persecution by reason of his ethnicity and that adverse credibility findings had been arrived at without regard to the evidence

Held by Dunne J. that it was not clear from the information at issue there was an error of fact. Even if such an error existed, it did not render the decision made irrational. There was no basis to impugn the findings of the Tribunal as to credibility. The applicant had to establish grounds which were arguable, weighty and reasonable as opposed to trivial or tenuous. There was no evidence of past persecution of the applicant and the Tribunal was not obliged to apply a forward looking test. The application for leave for judicial review would be refused.

Reporter: E.F.

1 Ms. Justice Dunne delivered on the 4th day of December, 2009

2 This is an application for leave to apply for judicial review in respect of the decision of the Refugee Appeals Tribunal (hereinafter referred to as the Tribunal). The relief sought is primarily an order to certiorari quashing the decision of the Tribunal made on the 28 ^th November, 2007 affirming the recommendation of the Refugee Applications Commissioner and notified to the applicant on or after the 9 ^th December, 2007. Further ancillary relief is sought. The decision of the Tribunal followed a hearing before the Refugee Applications Commissioner which resulted in a recommendation that the applicant should not be declared to be a refugee. This decision was communicated to the applicant by letter dated the 31 ^st July, 2007. The applicant appealed that decision to the Tribunal and an oral hearing took place before the Tribunal as a result of which the decision was made which the applicant now seeks leave to challenge in these proceedings.

3 The applicant herein claims to have been born in the village of Kurunji in south Darfur and to have lived there for his entire life save for approximately six months prior to his fleeing Sudan. He was born on the 1 ^st January, 1968. He is married and has three children. He is a member of what was described as a black African tribe, the Bergid. He stated that he and members of his family have suffered persecution as a result of his membership of the Bergid. He claimed that this persecution was carried out by the Janjaweed, a militia organisation which worked closely with the Sudanese government authorities. He stated that on the 13 ^th April, 2006, while he was at a wedding in Baranq, some two hours away from his home village, the village of Kurunji was attacked. In the course of the attack, his mother was killed and a number of the houses in the village were burned down. A further incident occurred on the 5 ^th May, 2006, in which the village was again attacked. He stated that he was at the mosque when the attack occurred and he ran away. He has not returned to the village of Kurunji since. He does not know what became of his wife and children as they were not with him in the mosque when the attack occurred on the 5 ^th May, 2006, and although he spent a number of weeks looking for them in surrounding villages he has not located them.

4 After he left Kurunji he went to Yoiyoi and then went to Domai and eventually he went to the village of Kogladi where his father in law resided. While he was there, his brother in law, a member of the Justice and Equality Movement (JEM) was killed. Some people came to the house, forced their way in and the applicant hid and then managed to escape. He then went to Sheiria village where he remained in the care of his uncle for some four months and six days. He stayed indoors in that place as he was afraid that government forces were looking for him. Arrangements were made for the applicant to leave Sudan. He left Sudan by ship on the 14 ^th November, 2006, and arrived in Ireland on the 8 ^th December, 2006. On arrival, he applied for asylum.

5 It is clear that the decision of the Tribunal was informed by a number of adverse findings of credibility in respect of the applicant herein. In para. 13 of the verifying affidavit of the applicant sworn herein on the 19 ^th December, 2007, he set out his complaint as to the credibility findings by the Tribunal as follows:-

"I say that the adverse credibility finding in relation to the perceived lack of detail in my evidence. I had answered all questions put to me, and it was never stated to me that my evidence lacked detail. No regard was had to the great detail I had given at my interview. The finding that I had not sought my family after the Janjaweed attack on the 5 ^th May, 2006, was inaccurate. It was clearly stated at para. 17 of my notice of appeal that I had searched for my family. The Tribunal made a finding relating to my military service without regard to my explanations and also my letter dated 20 ^th December, 2006. Findings relating to my travel and lack of documents were made without regard to my explanations or without stating any reasons why my explanations were rejected. Findings about my lack of detailed knowledge about the number of UN camps in south Darfur were peripheral to my core claim. I say that the adverse credibility findings were relied upon in a central manner by the Tribunal, despite the fact that the Tribunal made no finding challenging my evidence that I am from Darfur, and indeed determined my appeal on the basis that I am from Darfur. The Tribunal failed to assess my exposure to persecution by reason of my ethnicity. I say that a campaign of genocide has been waged against persons from the Bergid tribe for some time. I further say that I had given evidence that my brother in law had been killed by government or government backed militias when they sought my father in law. My father in law was a member of the political group Justice and Equality Movement (JEM). All persons connected with JEM are killed by the government. I was lucky to escape with my life. I am advised by my legal representatives and believe that the Tribunal also had a duty to assess and determine this aspect of my evidence. No such assessment took place. "

6 Based on the matters set out in the applicant's affidavit the oral and written submissions on behalf of the applicant summarised the adverse credibility findings as follows:-

7 1. The applicant's lack of knowledge of attacks in Umshagirah around March/April 2006;

8 2. The fact that the applicant "at no stage returned to his home village to find out about the fate of his family";

9 3. The applicant believed that the raiding of his in laws' house and which resulted in the killing of his brother in law followed from surveillance of the house. The Tribunal found that "the applicant's subjective belief in this regard is not supported by any objective facts" and also referred to "confusion as regards whether it was the applicant's brother or father in law who was killed";

10 4. In circumstances where the applicant "was never involved with any anti government movement, it seems unlikely that unknown men would have any motive to pursue the applicant";

11 5. The applicant's lack of knowledge of Sheiria "where he stayed with his uncle for some four months and sixteen days";

12 6. The applicant's lack of knowledge of the location of both displaced persons camps and Janjaweed camps, and also his failure to seek the protection of displaced persons camps;

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