B (A) v Refugee Appeals Tribunal & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 05 May 2011
• Neutral Citation: [2011] IEHC 198
• Court: High Court
• Date: 05 May 2011

[2011] IEHC 198

THE HIGH COURT

[No. 667 J.R./2008]

B (A) v Refugee Appeals Tribunal & Min for Justice

BETWEEN

A. B.

APPLICANT

AND

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

RESPONDENTS

CHARTER OF THE UNITED NATIONS CHAP VII

CONVENTION RELATING TO THE STATUS OF REFUGEES 1951 ART 1F

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S2

CONSTITUTION ART 29.6

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS ACT 1993 S9(1)

REFUGEE ACT 1996 S1(1)

MCD (J) v L (P) & M (B) 2010 2 IR 199 2010 1 ILRM 461 2009/34/8411 2009 IESC 81

EEC DIR 2004/83 ART 12

BUNDESREPUBLIK DEUTSCHLAND v B & ANOR 2011 IMM AR 190 2011 INLR 133

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

IMMIGRATION ACT 2003 S7(A)

REFUGEE ACT 1996 S2(C)(i)

REFUGEE ACT 1996 S2(C)(ii)

REFUGEE ACT 1996 S2(C)(iii)

EEC DIR 2004/83 ART 12(2)(A)

R (S (J)) v SECRETARY OF STATE FOR THE HOME DEPT 2011 1 AC 184 2010 2 WLR 766 2010 3 AER 881 2010 UKSC 15

AG v TAMIL X 2011 3 LRC 269 2010 NZSC 107

CONVENTION RELATING TO THE STATUS OF REFUGEES 1951 ART 1F(A)

CONVENTION RELATING TO THE STATUS OF REFUGEES 1951 ART 1F(B)

CONSTITUTION ART 29.9

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT ART 7

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT ART 8(2)

INTERNATIONAL CRIMINAL COURT ACT 2006 S6(1)

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT ART 7(1)(A)

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT ART 7(2)

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT ART 8

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT ART 7(1)

PROSECUTOR v TADIC 2002 9 IHRR 1051

EEC DIR 2004/83 RECITAL 16

EEC DIR 2004/83 RECITAL 17

EEC DIR 2004/83 ART 2(C)

EEC DIR 2004/83 ART 12(2)

EEC DIR 2004/83 ART 12(3)

EEC DIR 2004/83 ART 12(2)(C)

LIBYAN ARAB JAMAHIRIYA v UNITED KINGDOM UNREP 1992 ICR 3

CHARTER OF THE UNITED NATIONS ART 25

SHAW INTERNATIONAL LAW 5ED 2003 1148-1151

IMMIGRATION LAW

Asylum

Judicial review - Application for leave - Crimes against humanity - Member of Taliban - Exclusion from refugee status - Whether Taliban responsible for crimes against humanity - Whether tribunal entitled to infer complicity in crimes against humanity from senior position held within Taliban - Whether tribunal adequately assessed applicant's individual complicity in Taliban's crimes against humanity - R (JS) Sri Lanka) v SSHD [2010] UKSC 15, [2010] 2 WLR 766, Attorney General v Tamil X [2010] NZSC 107 and C-57/09 and C-101/09 Bundesrepublik Deutschland v B und D [2010] ECR I-000 considered - Refugee Act 1996 (No 17), s 2 - Leave granted (2007/67JR - Hogan J - 5/5/2011) [2011] IEHC 198

B(A) v Refugee Appeals Tribunal

Facts The applicant had arrived in the State from Afghanistan and had applied for refugee status. The Refugee Appeals Tribunal had concluded that although the applicant had established a well-founded fear of harm, by reason of the applicant's combat activities for the Taliban he had forfeited his right to seek asylum. The applicant had contended that if he was returned to Afghanistan he would be likely to suffer persecution by reason of his former activities. The applicant initiated proceedings seeking leave to bring judicial review proceedings to challenge the decision.

Held by Hogan J in granting leave to bring judicial review. The Refugee Appeals Tribunal was obliged to conduct an individual assessment of the applicant's circumstances and his role, if there was one, in the Taliban's crimes against humanity. The applicant had established substantial grounds that the Tribunal did not conduct this type of assessment and leave would accordingly be granted.

Reporter: R.F.

1 1. The applicant, Mr. B., is an asylum seeker who seeks leave to apply for judicial review of a decision of the Refugee Appeals Tribunal of 14 ^th May, 2008, which rejected his asylum request. The point raised is an unusual one of some considerable importance, namely, whether by reason of his combat activities as a regional commander for the Taliban forces (or, more strictly, one of its factions, Hezb-i-Islami) in opposing the NATO-led International Security Assistance Force ("ISAF") in Afghanistan the applicant can be regarded as having forfeited his right to seek asylum. In essence, the question is whether the applicant can be regarded as fleeing persecution or prosecution.

2 2. Although perhaps not strictly proved in evidence, I can take judicial notice of the fact that ISAF is a NATO-led security mission in Afghanistan which is currently engaged in extensive peace enforcing activities (including military combat) in that country. ISAF was established by UN Security Council Resolution 1386 ("Resolution 1386")(2001) following the fall of the previous Taliban regime in the winter of 2001. The ISAF acts in support of the present Afghan government, led by President Karzai. It is clear from the country of origin information that this Government is democratically elected, albeit that it would have to be acknowledged that the democratic process in Afghanistan is somewhat fragile and, perhaps, imperfect.

3 3. The Hezb-i-Islami were one of the original Mujahadin groups who fought against the Soviet occupation of Afghanistan in the 1980s. Following the departure of the Soviet troops, the Taliban came de facto to power in 1996, although their regime was recognised only by a few countries. The overwhelming evidence is that the massive terrorist attacks in the United States on 11 ^th September, 2001, were organised by the Al-Qaida forces, whose leader, Usama bin Laden, had been given sanctuary in Afghanistan by the Taliban. In the wake of the September 11 ^th attacks, various countries (led by the United States) gave the Taliban regime an ultimatum to hand over bin-Laden and to dismantle the Al-Qaida support bases which had been allowed to operate unhindered. When this was not forthcoming, military action led by the United States and the United Kingdom followed in early October, 2001. The Taliban regime collapsed within weeks of the commencement of these hostilities.

4 4. In the meantime, in response to the September 11 ^th terrorist attacks the UN Security Council adopted Resolution 1373 (2001) on 28 ^th September, 2001, on the basis of Chapter VII of the Charter of the United Nations. The preamble to Resolution 1373 (2001) reaffirmed 'the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts'. Paragraph 5 of the resolution declared that 'acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and … knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations'.

5 5. On 12 ^th November, 2001, the UN Security Council adopted Resolution 1377 (2001) which stressed that "acts of international terrorism are contrary to the purposes and principles of the Charter of the United Nations, and that the financing, planning and preparation of as well as any other form of support for acts of international terrorism are similarly contrary to the purposes and principles of [that Charter]'. This is reflected within the sphere of European Union law by Common Position 2002/402/CFSP of 27 ^th May, 2002, which adopted sanctions in respect of bin Laden, members of the Al-Qaida organisation and the Taliban and "other individuals, groups, undertakings associated with them." Regulation (EC) No. 881/02 gives effect in law to this Common Position.

6 6. Following the collapse of the Taliban regime, the establishment of the ISAF was authorised by UN Security Council Resolution 1386 (2001). This Resolution envisaged the establishment of democratic authority in Afghanistan and the gradual restoration of peace and security. While progress on these fronts could fairly be described as uneven, it is clear nonetheless that there have been significant military engagements between the ISAF and the Taliban forces over the last decade or so.

The position of the applicant

7 7. The applicant claims that is an ethnic Pashtun from the Garmsair District in the Helmand province. The Helmand province is an area in southern Afghanistan which has witnessed some of the heaviest fighting over the last decade. Mr. B. maintains that his father was a prominent military commander during the Soviet occupation and that he joined the Taliban when they came to power. He says that he graduated from the Nangharhar Islamic University School of Law in 2000 and that he was then appointed by the Taliban as a prosecutor in the Helmand province, with the task of investigating political and military prisoners. He says that the following the commencement of hostilities in October, 2001 his father was presumed killed following heavy fighting in Kundoz Province. In the wake of this Mr. B. says that he was then appointed a commander for the Taliban in Helmand.

8 8. Mr. B. claims that he then fought against the ISAF and Afghani Government forces in this region between 2001 and 2006, save for one year spent in a village in Nangahrar in 2004-2005. During this latter period Mr. B. claims that the fighting involving the Taliban and Hizb-i-Islami forces on the one hand and the ISAF troops on the other was so intense that they were forced to move out of Helmand. He then says that he returned to Garmsair in Helmand in 2005 when the Taliban took control of that region and when police began to look for him in Nangahar. He then says that he fought with local Mujahadin on behalf of the Taliban until bombing by NATO troops caused him to flee Afghanistan.

9 9. The essence of Mr. B.'s claim if that he is returned to Afghanistan he would be likely to be suffer persecution by reason of his status as a prominent Taliban commander. There is an extant warrant for Mr. B. issued...