B.A.O [Iraq] v The Refugee Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Cooke |
| Judgment Date | 11 July 2012 |
| Neutral Citation | [2012] IEHC 290 |
| Court | High Court |
| Date | 11 July 2012 |
[2012] IEHC 290
THE HIGH COURT
BETWEEN
AND
REFUGEE ACT 1996 S13
MCCARRON v KEARNEY UNREP CHARLETON 4.7.2008 2008/36/7808 2008 IEHC 195
MELBARIEN ENTERPRISES LTD v REVENUE CMSR 1985 IR 706
MCMAHON, STATE v MIN FOR EDUCATION UNREP BARRINGTON 21.12 1985 1986/3/ 1206
KEEGAN STATE v STARDUST VICTIMS COMPENSATOPN TRIBUNAL 1986 IR 642 1986/6/861
O'KEEFFE v BORD PLEANALA 1993 1 IR 39
Asylum & Immigration law – Judicial review – Killings – Iraqi – Family – Political opinion – Credibility – Targeted killings – Whether Tribunal had erred in law
Facts: The applicant was an Iraqi and a Kurd and claimed to have being forced to flee Iraq following the killings of his parents. He alleged that he could face persecution for imputed political opinion. The respondent Tribunal had found no objective evidence that the applicant”s father was killed on account of his political opinion. The applicant had sought certiorari of the decision and alleged that the Tribunal had erred in law in failing to have regard that his family was in hiding and that the country of origin information which had indicated evidence of attacks. He alleged that the Tribunal had erred in making adverse credibility findings.
Held by Cooke J. in refusing the application for judicial review, that the Court was not satisfied that a case had been made out that the totality of information available to the Tribunal constituted compelling evidence of targeting family killings. It was not irrational for the Tribunal to have reached the decisions that it did.
JUDGMENT of Mr. Justice Cooke delivered the 11th day of July 2012
1. By order of the Court (Hogan J.) of the 17 th January, 2012, the applicant was granted leave to apply for judicial review of the decision of the Refugee Appeals Tribunal upon his application for asylum dated the 22 nd July, 2008, including an order of certiorari quashing that decision. Leave was granted upon two grounds as follows:
(a) In finding that the death of the applicant's father could not be verified as having occurred in a targeted attack, the Tribunal erred in law in failing to have any or any adequate regard to the fact that the applicant's family were in hiding and were seeking to escape from potential revenge attack; and country of origin information containing accounts of the targeting of Ba'athists in Iraq following the removal from power of the Ba'athist administration; and the Tribunal thereby acted ultra vires and unreasonably;
(b) In circumstances where the Tribunal did not make any adverse credibility findings on the applicant's claim, it erred in law in failing to give the applicant the benefit of the doubt, and thereby acted ultra vires and unreasonably.
2. The applicant is a national of Iraq and a Kurd. He claimed to have been obliged to flee that country in the autumn of 2007 following the killing of his parents when a grenade was thrown at their car as they returned from a market. Central to the claim expressed by the applicant is the proposition that this was a targeted attack upon his father and a revenge killing because the father had been a senior member of the Ba'ath party during the Saddam Hussein regime.
3. He claimed that following the killing of the parents he and his siblings went to live with an aunt who subsequently arranged with an agent for the applicant to be taken via Syria to another safe country. He then was taken through Turkey where he was placed in the back of a lorry and driven for a long time. At some point he was transferred into another lorry and when he was finally let out, he found he was in Dover and he was arrested by the British authorities. He was asked at a police station to complete certain documentation which he did not at the time understand, but now accepts was an asylum application.
4. Shortly afterwards he met an Arab man who helped him leave the United Kingdom by travelling first to Belfast and then to Dublin. He claimed asylum here on the 6 th December, 2007.
5. Although the applicant had made a previous application for asylum in the United Kingdom, the respondent Minister accepted to examine the application made in this jurisdiction because it was considered that the applicant was at the time 17 years of age and therefore a minor.
6. The essential basis for the claim to be a refugee was that the applicant, if returned to Iraq, would face persecution for imputed political opinion in that, since the fall of the Saddam Hussein regime in 2003, former members of the Ba'athist party and their families have been the subject of widespread attacks and revenge killings. As the son of an important Ba'athist party official who had already been killed in 2007, he claimed to fear that he too would be at risk of persecution.
7. In a report under s. 13 of the Refugee Act, 1996, dated the 25 th April, 2008, a negative recommendation was made on the application. The Authorised Officers cited information from the Immigration and Refugee Board of Canada on violence and acts of revenge by the general population against the officials and families of the Hussein regime, but concluded that the information "did not indicate that family members of former Ba'ath party members were, or would be targeted". They noted that the applicant had accepted that he had never personally been harmed in Iraq, although he said that "this was because he stayed in most of the time". They also noted that despite the fact that the father had stated that he was under surveillance, there had been no attack on the family house and this indicated that if people were intent upon taking revenge on the applicant's father, they have in fact done so and "there is no evidence to indicate that they would have any further interest in the remaining members of the applicant's father's family". The report contained no negative findings as regards the credibility of the personal history which the applicant had given and observed: "Given that that applicant claims his father was a member of the Ba'ath party, the former ruling political party in Iraq, it is considered that the applicant's claim does have a nexus to the Convention on the grounds of political opinion". The report also contained a finding for the purposes of s. 13(6)(d) of the Act of 1996, based on the prior application for asylum in the United Kingdom, with the result that the appeal which was then initiated was determined by the Tribunal without an oral hearing.
8. Notice of appeal to the Tribunal was lodged on the 15 th May, 2008, accompanied by three documents by way of country of origin information. The s. 13 Report as put before the Tribunal was also accompanied by an extract from a US State Department "Country Report on Human Rights Practices in Iraq" dated March 2008 and a "Country of Origin Research" document of the Immigration and Refugee Board of Canada dated the 15 th January, 2004.
9. By a letter dated the 22 nd May, 2008, the Refugee Legal Service on behalf of the applicant forwarded to the Tribunal another copy of the above Report of the 15 th January, 2004, together with an IRIN Report "Iraq: Families in south displaced as former Ba'athists targeted" dated the 30 th July, 2007.
10. The Tribunal Report dated the 22 nd July, 2008, follows the usual format of the appeal decisions in which the grounds for appeal are first summarised and the essential content of the applicant's claim is then set out. In part four of the decision, headed "Submissions" the Tribunal member records that the submissions have referred to three particular documents namely, Refugees Magazine issue 146; a BBC news report and a...
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