BL (Nepal) v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 28 July 2015
• Neutral Citation: [2015] IEHC 489
• Docket Number: [2012 No. 959 J.R.]
• Court: High Court
• Date: 28 July 2015

BETWEEN

B.L. (NEPAL)

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (CONSTITUTED OF BERNARD MCCABE BL, TRIBUNAL MEMBER) AND THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENTS

[2015] IEHC 489

[2012 No. 959 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – S. 2 of the Refugee Act, 1996 – S. 5 (2) of the Illegal Immigrants (Trafficking) Act, 2000 – Refusal of asylum – Art. 5 of the European Communities (Eligibility for Protection) Regulations 2006 – EU Council Directive 2005/83/EC – Fear of persecution – Whether applicant's evidence credible – Assessment of country of origin information

Facts: The applicant sought an order of certiorari for quashing the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicant should not be declared a refugee. The applicant contended that the first named respondent had erred in law by making negative credibility findings against the applicant without specifically identifying the aspects that were not believable and rather focussed on the prospective risk of future persecution.

Mr. Justice Eagar granted an order of certiorari to the applicant. The Court held that the decision of the first named respondent was vague and ambiguous as it lacked cogent reasons for rejection of the claim of the credibility. The Court held that the fact that the applicant had no risk of persecution in India, the country where he stayed after having fled the country of origin and before making asylum application in Ireland, was flawed as India did not recognise the Convention relating to the status of refugees. The Court observed that the first named respondent had failed to explain adequately the rejection of the core claim of the applicant, which was fear to return back to the country of origin owing to refusal to assist Maoists in the light of available country of origin information supporting the contention of differences between Maoists and the government. The Court observed that the first named respondent contravened the provisions of art. 5 of the European Communities (Eligibility for Protection) Regulations 2006 by not taking into account personal circumstances, relevant statements and documentation and past persecution of the applicant in relation to the country of origin.

JUDGMENT of Mr. Justice Eagar delivered on the 28th day of July, 2015

1 This is a telescoped hearing of an application of an order for certiorari quashing the decision of the first named Respondent dated 2nd November 2012 which affirmed the recommendation of the Refugee Applications Commissioner that the Applicant should not be declared a refugee and that the Applicant had failed to establish a well-founded fear of persecution as defined under s. 2 of the Refugee Act, 1996 (as amended) (hereinafter called ‘the Act’).

2 The statement of grounds in this case were verified by the affidavit of the Applicant who stated that he was a national of Nepal who was forced to flee because he was persecuted on the basis of imputed political views. He said his brother was a prominent Maoist and that he was killed in and around 2003 by the then government forces. At the same time the police started to pursue him as did his brother's former colleagues in the Maoist party. He said that he looked like his brother and that the Maoists wanted to recruit him into their party but he did not wish to get involved. They became aware that he was unwilling to join them and from this they started to believe that he was a government spy. After that he started to receive threats and as it was not safe he fled to India. There he had relatives who permitted him to work casually on their farm in exchange for food and board. During the six years approximately that he spent in India, he made approximately five or six trips over the border to see his wife. Eventually he could no longer remain living off his relatives and obtained a visa through an agent to travel to the UK. He stayed there for a number of months before coming to this State and applying for asylum on the advices of the agent. He said he was initially the subject of a Dublin Convention transfer order. He stated ‘However I heard that other Nepalese nationals who had been returned to the UK were returned to Nepal shortly afterwards’. He believed that a similar fate would happen to him and so he evaded the implementation of the transfer order and eventually his asylum application was processed in Ireland. A notice of appeal was lodged with submissions, country of origin information and additional documents. He said that an oral appeal was heard by the first named Respondent on 20th September, 2012 and the report of the first named Respondent was dated 2nd November, 2012, which affirmed the recommendation of the Refugee Applications Commissioner. He received the decision on or around the 12th November, 2012 and the application for relief was made on 23rd November, 2012, within the time period as required by s. 5(2) of the Illegal Immigrants (Trafficking) Act, 2000.

3 The grounds upon which the relief of certiorari were sought are as follows:-

(1) The first named Respondent, in dealing with the Applicant's substantive credibility in relation to the specific persecution he suffered, held that the Applicant's evidence ‘lacked detail and lacked the type of detail that would lead one to believe that there is any credibility to this story’ without setting out any particulars of:-

(a) What details were not present?

(b) What details were present but were so vague that they could not lead to believe in the Applicant's credibility?

(c) What type of details would have otherwise lead to a favourable determination?

(d) Which specific areas of his evidence were insufficient?

(e) Any inconsistencies between the details given and the country of origin information.

(f) Whether any particular answers given by the Applicant appeared to be vague.

(g) Whether he was assessing the Applicant on the basis of demeanour or on the basis of any details which he was able to provide.

(h) Whether a request was made by the first named Respondent and/or the presenting officer for further details which was answered by the Applicant.

In so doing, the first named Respondent was ultra vires, irrational and in breach of fair procedures.

(2) Without prejudice to the foregoing, it is insufficient to find the Applicant merely lacking in credibility in a general sense and the obligation on the first named Respondent to consider which aspects of the Applicant's claim are not believed and the specific reasons for same. By reason of the foregoing, it is impossible to determine the ratio of the first named Respondent's decision of credibility and which part of the Applicant's claim he does, or does not, accept and thus the decision of the first named Respondent is ultra vires and irrational.

(3) The first named Respondent failed, notwithstanding the finding that the evidence of past persecution on behalf of the Applicant was not credible, to consider the prospective risk of future persecution. It is accepted that he is from Nepal, but it is not clear which other parts of his claim were accepted and which were rejected. It was accepted at the oral hearing by both the presenting officer and the first named Respondent, that his identification was correct and that his brother was a prominent Maoist, who had been killed by the then government. The first named Respondent, in any event, determined that there was no future risk of persecution because the Applicant's persecutors (the Maoists) were now in charge of the Nepalese state. It is not clear from the first named Respondent's decision whether he is asserting that the Applicant's persecutors will now offer him state protection or whether there is some reason as to why they will not persecute the Applicant, but in circumstances where he is persecuted because they believed him to be a government (now opposition) spy, this finding is irrational and unreasonable and contrary to the tests by this Honourable Court in M.A.M.A. v. Refugee Appeals Tribunal [2011] 2 IR 729.

(4) Without prejudice to the foregoing the Applicant gave clear evidence that he was not a member of the Maoist party (p. 5 of the interview), but that they attempted to recruit him. In finding that the Maoist party could provide protection, or at least cease persecuting the Applicant once they achieved their goals, suggests that the first named Respondent irrationally took the view that the Applicant was a member of the Maoist party.

(5) If (which is not clear) the first named Respondent held that India could provide protection to the Applicant, given that India is not a signatory to the Refugee Convention, and has no national protection framework for the protection of refugees, such protection is not sufficient to meet the standard such as the Refugee Convention and the EU Directives. By reason thereof, the finding that the Applicant left the country which would afford him protection is irrational.

(6) The first named Respondent failed to have due regard to the Applicant's subjective view as to why he was unwilling to return to the UK for the processing of his asylum application. He gave clear evidence that he was afraid because he was aware of other people who had been sent to the UK and, after one week, they were sent to Nepal. Thus the Applicant gave clear subjective evidence as to his view, albeit one which may be without objective foundation. The first named Respondent was thus irrational in determining that the Applicant's unwillingness to cooperate with the transfer was not indicative of someone who was “fleeing persecution who was in need of protection”.

4 The hearing before the first named Respondent took place on 20th September, 2012 and the decision was handed down on 2nd November, 2012. The first named Respondent set...