A.B v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 08 February 2013
• Neutral Citation: [2013] IEHC 46
• Court: High Court
• Date: 08 February 2013

[2013] IEHC 46

THE HIGH COURT

[No. 861 J.R./2009]

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

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996, IMMIGRATION ACT 1999 AND THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 AND STATUTORY INSTRUMENT 518 OF 2006

BETWEEN

A. B.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

EUROPEAN COMMUNITIES ELEGIBLITY FOR PROTECTION REGULATION SI 518/2006 REG 5(1)(B)

R (I) v MIN FOR JUSTICE & ORS UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

O (BA) v MIN FOR JUSTICE UNREP MCDERMOTT 3.8.2012 2012 IEHC 384

J (A) v REFUGEE APPEALS TRIBUNAL UNREP HEDIGAN 15.10.2008 2008/1/33 2008 IEHC 310

A (G) v RAT UNREP 31.3.2009 2009/1/140 2009 IEHC 157

IMAFU v RAT UNREP UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416

F (B) v MIN FOR JUSTICE & ORS UNREP PEART 2.5.2008 2008/23/4968 2008 IEHC 126

O (V) v MIN FOR JUSTICE & ORS UNREP CLARK 23.1.2009 2005/31/6357 2005 IEHC 150

T (A M) v REFUGEE APPEALS TRIBUNAL 15.5.2004

OJELABI v REFUGEE APPEALS TRIBUNAL 28.2.2005 2005/48/10025 2005 IEHC 42

REFUGEE ACT 1996 S11

HALIM v MIN FOR JUSTICE UNREP SMYTH 3.10.2002 (TRANSCRIPT UNAVAILABLE)

IMMIGRATION LAW

Asylum

Judicial review - Refusal of refugee status - Negative credibility findings - Whether factual errors by first respondent - Whether first respondent engaged in speculation or conjecture - Whether credibility findings unreasonable - Whether failure to have due regard to applicant's explanations - R(I) v Minister for Justice, Equality and Law Reform [2009] IEHC 353, (Unrep, Cooke J, 24/7/2009) considered - Relief refused (2009/861JR - MacEochaidh J - 8/2/2013) [2013] IEHC 46

B(A) v Refugee Appeals Tribunal

Facts The applicant, a national of Burundi, had arrived in the State and had made an application for asylum which was rejected. The applicant initiated judicial review proceedings contending that the Refugee Appeals Tribunal had failed to make a proper assessment of the applicant”s evidence and that credibility findings were based upon errors of fact and/or misunderstandings. It was also claimed that the Tribunal had failed to give adequate weight to the mixed ethnicity of the applicant and to factors which corroborated his account of persecution and the circumstances which caused him to flee Burundi. It was also claimed that the Tribunal had failed to give adequate weight to supporting documentation.

Held by Mac Eochaidh J in refusing the relief sought: Credibility was rejected in this case by reason of inconsistencies and contradictions in the applicant”s account of events and all of these were carefully explained and set out in the decision of the Tribunal. A decision maker must be entitled to engage in a balancing exercise and to decide that unauthenticated documents which supported aspects of an applicant”s account were ultimately not of assistance. It was evident from the Tribunal”s decision that extensive regard was had to the political situation in Burundi and that detailed analysis took place of the country of origin information. The complaints made on behalf of the applicant, apart from one insignificant exception, had not stood up to scrutiny and no sustainable ground had been advanced.

1 JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 8th day of February 2013

2 These proceedings comprise an application for judicial review of the decision of the respondent Tribunal and consequential decision of the respondent Minister refusing a declaration of refugee status. Leave to seek judicial review was granted by Cooke J. on the 11 ^th of June 2012, and an amended statement grounding the application was filed. Eight complaints were maintained against the decisions in suit can be summarised as follows:

3 (i) The Tribunal Member relied on factual errors and on an erroneous understanding of the information and documentation before him.

4 (ii) Credibility findings were based upon errors of fact and/or misunderstandings.

5 (iii) Credibility findings were based on personal speculation and conjecture and failed to have regard to the applicant's credibility in the light of accepted UNHCR guidelines.

6 (iv) The Tribunal failed to take account of identification documentation.

7 (v) The credibility findings are unreasonable.

8 (vi) Credibility findings failed to take account of explanations in clarification.

9 (vii) Credibility findings were not supported by reasons or adequate reasons.

10 (viii) The Tribunal failed to give adequate weight to the mixed ethnicity of the applicant and, as such, factors which corroborated his account of persecution and the circumstances which caused him to flee Burundi.

11 In what appears to be a particularisation of the first ground, it is also alleged that the Tribunal failed to have proper regard to country of origin information. In a particularisation of ground (iv), it is said that the Tribunal Member failed to have any due or proper regard for the personal and applicant-specific documentation submitted.

12 The Refugee Appeals Tribunal delivered its decision in this matter on 5 ^th June 2009. The applicant was represented by two lawyers and was assisted by an interpreter.

13 This decision of the RAT contains a lengthy and well written account of the applicant's claim. No complaint is made as to its the accuracy. The essential elements of the applicant's claim are that he left Burundi on 30 ^th March 2004 and arrived in Ireland the following day, having travelled via Kenya and the Netherlands. He claims to be of mixed Hutu and Tutsi heritage. The applicant says that he was a technician employed by the National Radio Station of Burundi and as such was considered to be a journalist by profession. He says his father was killed during a genocidal episode in 1972. By 1992, Hutu survivors of the genocide formed a political organisation known as FRODEBU, which invited the applicant to join their activities, but he declined. It is said that this refusal laid the seeds of the trouble he subsequently faced. FRODEBU won elections in 1993 but the President of the State was killed three months later.

14 Members of FRODEBU formed CNDD, leaving Burundi and regrouping in the Democratic Republic of Congo before deciding to return to Burundi to commence military activities. The applicant was approached and asked to assist in preventing the National Radio Station from broadcasting and to assist with the broadcasts of a rebel radio station from the Democratic Republic of Congo. The applicant refused this assistance. Nonetheless, an emissary named Pascal Mbogo was sent to the applicant with money in an attempt to bribe the applicant. Pascal was apparently killed and his money was taken and the applicant was accused of or associated with these events. Further attempts were made to persuade the applicant to engage in rebel activity but he declined.

15 The applicant claimed that he was contacted again in 1995 to assist with the sabotage of the National Radio Station. Thereafter, he was contacted in 2004. He claims that on 1 ^st March 2004, he was arrested by government troops, which government now comprised some of the former rebels. His cousin came to his assistance during this period of arrest and detention and he advised him to escape. He also claims that his cousin was subsequently arrested. His own house was ransacked and his wife and her children retreated to the centre of the country.

16 The RAT ultimately decided to reject the applicant's case on the basis of his lack of credibility. The credibility findings may be summarised as follows:

17 (i) Given that the applicant was invited to join FRODEBU and claims he refused and in addition was critical of CNDD (their offshoot) since 1994, it was not credible that he would be asked to sabotage the National Radio Station in 1995.

18 (ii) The documents purporting to establish that he worked for the National Radio Station and the other personal identification documents cannot be authenticated.

19 (iii) The applicant's evidence was not credible in respect of the number of radio stations broadcasting in Burundi.

20 (iv) The applicant gave contradictory evidence in respect of when the army came to the radio station where he worked. The first time he claimed it happened in 1993, then in 2003 and then changed his story back to 1993.

21 (v) It was not credible that the CNDD rebel group did not contact the applicant until 2004 - nine years after the alleged killing of Pascal Mbongo.

22 (vi) It was not credible that the applicant was arrested as he would not have been questioned prior to the alleged visit of his cousin (a commander). Further, the warrant submitted by the applicant cannot be authenticated.

23 (vii) The applicant's testimony as regards his escape is deemed not credible. The Tribunal was of the view that his uncle and cousin who allegedly aided his escape would have suffered consequences as a result.

24 (viii) The failure of the applicant to seek asylum in a country other than Ireland given he transited through Kenya and the Netherlands was deemed inconsistent with a person fleeing persecution.

25 (ix) Further, the Tribunal does not believe the applicant has provided a full and true explanation of how he travelled to the State.

26 (x) The manner of the applicant's entry into Ireland was deemed not credible. In the Tribunal's opinion it was not credible that a trained immigration officer at Dublin airport would not detect that the passport used by the applicant was false.

27 (xi) The Tribunal does not believe that the applicant fled Burundi for the reasons he has advanced and does not believe he will be persecuted on his return if he is sent back.

28 (xii) The Tribunal believes that the applicant has contrived a story and that his failure to tell the...