Benderare v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 02 October 2002
• Neutral Citation: 2002 WJSC-HC 644
• Court: High Court
• Docket Number: Record No. 16JR/2001
• Date: 02 October 2002

BENDERARE v. MINISTER FOR JUSTICE & REFUGEE APPEALS AUTHORITY

(JUDICIAL REVIEW)

Between/

YOUSSEF BENDERARE

Applicant

-and-

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM and CONORBOWMAN sitting as THE APPEALS AUTHORITY

Respondents

2002 WJSC-HC 644

Record No. 16JR/2001

THE HIGH COURT

Synopsis:

IMMIGRATION

Asylum

Judicial review - Limitations of judicial review jurisdiction - Not for court to say how it would have evaluated the evidence - Whether evidence before Tribunal such as would have enabled it to fairly and reasonably come to view that it did - Hope Hanlan Procedures - Refugee Act, 1996 (2001/16JR - Smyth J - 2/10/02)

Benderare v Minister for Justice, Equality and Law Reform

Facts: The applicant was an Algerian male who sought asylum in Ireland. At that time, the Hope Hanlan Procedures were in operation. The applicant could not speak English and was provided with an interpreter. His application was refused. The applicant appealed the decision with the assistance of the Refugee Legal Service. The appeal was by way of oral hearing and at all times the applicant had the benefit of legal assistance and advice. The refusal was upheld on appeal. The applicant applied for leave to apply for judicial review on the grounds that the Tribunal erred in determining that there was not a well founded fear of persecution.

Held by Smyth J. in refusing leave to apply for judicial review that he was satisfied as a matter of fact and of law that the applicant's case was duly and properly considered by the Tribunal. The decision was not irrational and fair procedures were followed. It was not for the court to superimpose its views and supplant the views taken by the Tribunal. The function of the court was to ascertain whether there was evidence before the Tribunal such as would enable it to have fairly and reasonably come to the view that it did.

Citations:

UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951

PROTOCOL ON THE STATUS OF REFUGEES 1967

REFUGEE ACT 1996 S2

K (G) & ORS V MIN FOR JUSTICE 2001 1 ILRM 401

STEFAN V MIN FOR JUSTICE 2002 2 ILRM 134

QUIJANO V SECRETARY OF STATE FOR THE HOME DEPARTMENT 1997 IMM AR 247

ISLAM V SECRETARY OF STATE FOR THE HOME DEPARTMENT 1999 2 AC 629

1 JUDGMENT OF MR. JUSTICE T.C. SMYTHDELIVERED ON THE 2ND DAY OF OCTOBER 2002

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the judgment in the above-named case.

THE CASE OF YOUSSEF BENDERARE

MR. JUSTICE SMYTH:	The Applicant is an
	Algerian male person whose

3 stated date of birth is 3rd June 1968, and is of Muslim religion. On arrival in this State on 1st November 1998, he was unmarried. He departed his country of origin on 12th October 1998, via Tunisia. At the time of furnishing the ASY1 form, he described himself as unemployed. In completing the standard form of Questionnaire on 4th November 1998, he indicated that he had been a builder's labourer for eleven years and left Algeria for "political reasons". He stated that he did not possess a Passport because he was not thinking or leaving his country, and as to an ID card, because of threats he lost all his papers. Furthermore, he stated that as a result of personal (warning) by the government, he left the country following continuous threats. His journey took the form of fifteen days in Tunisia and two days inMalta.

4 The reason he gave in the Questionnaire for seeking asylum, he expressed as follows:-

"Because of my father's job in the National Guard (he is now retired) and because of his former relations with members of the security service, my family was wiped out when our house was destroyed by explosions. My whole family was killed. When I returned home from work I found the wreckage of our house, surrounded by security service men. In these circumstances, Ihad no option but to escape. My family had been killed -- my mother and my father. There were continuous threats from unknown persons in the militia. I had not alternative but to flee this hell."

5 The Applicant stated in the Questionnaire that he had no schooling and his stated inability to read or write figures throughout the asylum process. At an interview held on 27th November 1998, it emerged that the Applicant's full name is Bdrer Youssef Benderare. It would appear that he had given his name to the Eastern Health Board as Gviz Bdrer -- but his response was that the Eastern Health Board had made a mistake; in fact, on 2nd November, at the time of supplying the information for his ASY1 form, he also gave his name as Gviz Bdrer. During the interview he said he did not know if his brother and sister were alive or dead -- neither are referred to Q.84 of the Questionnaire. He said he did not go to school, did not learn to read or write and did not know about buses or anything, but he had a CIE bus pass with a photo.

6 It appears that before his father's death, his father gave him some monies and told the Applicant to leave Algeria. His description of the burning of his home and his father's and mother's death given at different times of the interview differed. It transpired that his mother died of illness, his married sister did not stay in the Applicant's homehaving been warned by his father not to do so. He apparently lived for some time with friends of his and said:-

"I did not have any problems with police, but I was afraid they were going to kill me in Algeria. I did not stay for a long time with myfriends."

7 Much was made in court concerning the understanding of the Applicant of language and in particular whether he would understand Berber of Algerian or Arabic with an Algerian accent, and at the end of the interview the Applicant said he did not understand the interpreter very well. He was nonetheless able to travel from Tunisia to Malta to Ireland, he had a friend who was able to come to his aid and organised his temporary accommodation through Caritas until he could redress his complaint that the Eastern Health Board had not given him money or freeaccommodation.

8 At other stages of the interview he gave different versions of the matters referred to in Q.84 of the Questionnaire. At the time this Applicant's asylum application was being considered the Hope...