Banzuzi v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 18 January 2007
• Neutral Citation: [2007] IEHC 2
• Docket Number: [2005/735 JR]
• Court: High Court
• Date: 18 January 2007

[2007] IEHC 2

THE HIGH COURT

[2005/735 JR]

BANZUZI v REFUGEE APPEALS TRIBUNAL & ORS

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED), IN THE

MATTER OF THE IMMIGRATION ACT, 1999 (AS AMENDED), IN THE

MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000

(AS AMENDED), AND IN THE MATTER OF THE EUROPEAN

CONVENTION ON HUMAN RIGHTS ACT, 2003 SECTION 3 (1)

BETWEEN

GUYLAIN MANIATU BANZUZI

APPLICANT

AND

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

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

Abstract:

Practice and procedure - Judicial review - Immigration and asylum law - Factors to be considered - Consideration of all country of origin information - Selective use of information - Adverse credibility findings - Reasonable assessment of country of origin information - Benefit of the doubt - Refugee Act, 1996(as amended) - Immigration Act 1996(as amended)- Illegal Immigrants (Trafficking) Act, 2000(as amended), European Convention on Human Rights Act, 2003.

the applicant had been granted leave by the High Court to challenge a decision of the respondent by way of judicial review. The applicant was a national of the Democratic Republic of Congo whose father was Congolese and mother was Rwandan Tutsi. The applicant submitted that he was in fear of persecution because there was widespread killing of persons of Tutsi origin. The applicant submits that the Tribunal failed to consider all of the country of origin information; that the Tribunal made selective use of the country of origin information; that the Tribunal made adverse credibility findings without reasonable assessment; that the Tribunal made adverse credibility findings of a generalised nature and that the Tribunal refused to give the applicant the benefit of the doubt.

Held by Mr Justice Feeney that credibility and adverse findings were deduced by the Tribunal since the applicant’s version of events was not plausible. Statements made by the applicant were found to be incoherent. It was held that there was no basis for contending that the Tribunal made adverse credibility findings without having made a reasonable assessment of country of origin information. The adverse findings identified were not inconsistent with any country of origin information and such findings were not dependent on the country of origin information. The applicant was found not to be credible in relation to how he lived 12 months prior to his departure and the circumstances of his departure. The applicant had the opportunity of putting extensive and up-to-date country of origin information before the Tribunal and the applicant was fully heard at an oral hearing. The finding in relation to lack of credibility is not dependent on assessment of country of origin information nor can it be said that the applicant was not given the benefit of the doubt. There was sufficient and appropriate evidence before the Tribunal to support the decision and no defect has been identified.

Reporter: E.C.

Mr. Justice Feeney

1 2 1.1 The Applicant in this case is a national of the Democratic Republic of Congo (DRC) who was born on 21st November, 1984. His father was Congolese and his mother was a Rwandan Tutsi. The Applicant's late father was a solider in the army under former President Mobuto. The Applicant has averred that following President Kabila taking power that his father and many other soldiers who had operated under President Mobuto were sent to the interior of the DRC. His father subsequently died in early 1998.

2 3 1.2 In 1998 President Kabila ordered Rwandan soldiers to leave the DRC and thereafter there was a widespread killing of persons of Tutsi origin. At that stage the Applicant lived with his mother, brother and two sisters and their house was attacked on 6th August, 1998. The Applicant's mother was raped and the children including the Applicant were assaulted. It appeared that the family were to be murdered, by being set alight, but a friend of the Applicant's late father intervened. That friend, who had known the Applicant's late father in the army, brought the Applicant and his family to his own house and they lived with him and his family from August 1998 until March of 2001. At that stage the Applicant and his family believed it was safe to return to their home at N'Djili. The Applicant was then able to recommence his schooling for a period of approximately three months. In mid June 2001, the Applicant claimed, that his house was attacked by neighbours and the police. The Applicant and his family immediately fled to Brazzaville where they remained until July 2002. At that stage the Applicant and his family went to the Central African Republic. They were arrested in the Central African Republic due to a lack of proper documentation and the family became separated. The Applicant averred that he was released after one day and he was provided with accommodation by a man whom he had met. It was this man who ultimately organised a third party to assist the Applicant to flee to Ireland and the Applicant arrived in Ireland on 8th June, 2003 and immediately applied for asylum.

3 4 1.3 As part of the application for asylum the Applicant completed a questionnaire which was submitted to the Refugee Applications Commissioner and he also provided an identity document. The Applicant was interviewed as part of the asylum process on 16th June, 2004 and again on 14th October, 2004. He identified his fear of persecution based upon a fear that a person who was half Tutsi of Rwandan origin would be perceived as being of Rwandan Tutsi origin and therefore was at risk of being persecuted or killed by the government authorities, military factions or the Congolese people. The Applicant identified his fear of persecution in the following words namely:

"Since 1998 the government in place and the media made an announcement inciting violence against the Tutsis and people of Rwandan origin. I am afraid of dying, this is why I fear persecution. … I am half Tutsi of Rwandan origins. Since the campaign that started in August 1998, they have tried to exterminate the Tutsis throughout the territory of the Democratic Republic of Congo."

4 At the second interview the Applicant was questioned about his knowledge of the existence of a transitional government in the DRC since around June, 2003, which included representatives of all political factions throughout the Congo and all ethnic groups and he confirmed that he knew about that but also expressed the view that he did not think that there had been any real improvement.

5 2 1.4 A report pursuant to s. 13(1) of the Refugee Act 1996 (as amended), was completed dated 26th January, 2005, including a conclusion that the Applicant had failed to establish a well founded fear of persecution. That recommendation was considered before the Refugee Applications Commissioner on 14th March, 2005 and a recommendation was made that the Applicant should not be declared a refugee.

6 3 1.5 A notice of appeal was filed on behalf of the Applicant on 15th April, 2005 and that appeal was heard on oral evidence by the Refugee Appeals Tribunal resulting in a written decision of 13th June, 2005. In that decision the member of the Refugee Appeals Tribunal determined that the appeal failed and affirmed the recommendation of the Refugee Applications Commissioner.

7 4 1.6 The Applicant commenced judicial review proceedings by notice of motion dated 6th July, 2005 and on 28th March, 2006 the Applicant was granted leave to apply for judicial review in an order of the High Court of that date. The grounds upon which relief is being sought are set forth in five numbered paragraphs in sub paragraph E of the post leave statement of grounds delivered by the solicitors for the Applicant on the 7th April, 2006. A resumè of those grounds are set forth in the submissions delivered on behalf of the Applicant and they are as follows, namely:

8 (1) The Tribunal failed to consider all the country of origin information. In particular, the Tribunal accepted country of origin information that the June, 2003, setting up of the transitional government effectively ended the five year conflict and thereafter failed to have any regard to more recent and conflicting country of origin information;

9 (2) The Tribunal made selective use of the country of origin information that it relied upon;

10 (3) That the Tribunal made adverse credibility findings without having made any reasonable assessment of the country of origin information;

11 (4) That the Tribunal made adverse credibility findings of a generalised nature without having made any reasonable assessment of substantial and central aspects of the Applicant's account;

12 (5) That the Tribunal refused to give the applicant the benefit of the doubt without having made any reasonable assessment of substantial and central aspects of the Applicant's account.

13 2 2.1 In relation to the ground that the Refugee Appeals Tribunal failed to have regard to all country of origin information, it is contended on behalf of the Applicant that the Tribunal's findings were demonstrably incorrect and irrational and were based on an incomplete assessment of the country of origin information. In this regard reliance is placed upon the judgment of Peart J. in the case of da...