(D)(D) v Refugee Appeals Tribunal (Garvey) & Others

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M. CLARK
• Judgment Date: 28 April 2010
• Neutral Citation: [2010] IEHC 124
• Court: High Court
• Date: 28 April 2010

[2010] IEHC 124

THE HIGH COURT

[No. 406 J.R./2008]

D (D) v Refugee Appeals Tribunal (Garvey)

JUDICIAL REVIEW

BETWEEN

D.D.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (BEN GARVEY)

RESPONDENT

AND

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

NOTICE PARTIES

REFUGEE ACT 1996 S13

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

A (CI) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP IRVINE 30.6.2009 2009/1/103 2009 IEHC 281

REFUGEE ACT 1996 S16(8)

S (DVT) v MIN FOR JUSTICE & ORS 2008 3 IR 476 2007/54/11621 2007 IEHC 305

IMMIGRATION

Asylum

Credibility - Delay - Extension of time - Good and sufficient reasons - Country of origin information - Opportunity to respond - Conflict in reports - Failure to take relevant information into account - Whether good and sufficient reason to extend time - Whether Tribunal failed to give applicant notice of information relied on - Whether reasonable explanation for failure to apply for asylum in other countries - Whether Ireland first safe country into which applicant arrived - Abus v Refugee Appeals Tribunal [2009] IEHC 281 and S(DVT) v Refugee Appeals Tribunal [2008] 3 IR 476 considered - Refugee Act 1996 (No 17), ss 13 and 16 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Leave refused (2008/406JR - Clark J - 29/4/2010) [2010] IEHC 124

D(D) v Refugee Appeals Tribunal

Facts: The applicant, a native of the Ivory Coast, sought leave to apply for judicial review of a decision of the respondent affirming a negative recommendation of the Refugee Applications Commissioner. The applicant claimed to have joined a Muslim opposition party and that he was beaten and tortured while detained in prison there. His wife had given birth to a child in Ireland, who was a citizen of Ireland. Internal relocation within the Ivory Coast was found to be a viable option on the basis of country of origin information and the Tribunal member had found that three years had passed since his arrest and detention without trouble and that persons of low level involvement were not likely to be ill-treated. The Tribunal Member had also found that the applicant had lived in Mali and Togo before coming to Ireland without seeking asylum. A medico-legal report recorded that the applicant claimed to have been beaten and tortured both mentally and physically while in detention in the Ivory Coast. The issue arose as to whether the Tribunal Member had acted in breach of s. 16 (8) Refugee Act 1996 in failing to give the applicant notice of country of origin information relied on, whether selective country of origin information had been relied upon and whether he had adequately considered the medical reports furnished.

Held by Clark J. that the fact if it was a fact that the applicant was detained and tortured in 2000 was not determinative of his eligibility for refugee status. The country of origin information as to the risk of persecution was legitimately considered by the respondent. The Tribunal Member was entitled to have regard for the implausibility of the travel arrangements of the applicant. The Tribunal Member could not be criticised for failing to have regard to medical reports in the context of a forward-looking test. The Tribunal Member had correctly addressed his mind to future issues. None of the grounds outlined were such that could be described as substantial. The Court found no good and sufficient reason for the extension of time which would be refused. Leave would not be granted.

Reporter: E.F.

1 1. The applicant, who is a native of the Ivory Coast, seeks leave to apply for judicial review of the decision of the Refugee Appeals Tribunal (RAT), dated the 10 ^th January, 2009, which affirmed the negative recommendation of the Refugee Applications Commissioner. The hearing took place on the 24 ^th March, 2010. Mr. Hugo Hynes, S.C. with Mr. James Healy, B.L. appeared for the applicant and Ms. Sinead McGrath, B.L. appeared for the respondent.

Background

2 2. Very briefly, the applicant applied for asylum on the 22 ^nd January, 2007. His biographical details as presented are that he is a member of the Dioula ethnic group who are Muslims and a minority tribe from the north of the Ivory Coast where he was born and educated. He became a specialist car mechanic and moved to Abidjan where he practised his trade in a partnership, married and had two children who were born in 1994 and 1995.

3 3. Following the military coup in the Ivory Coast in 1999, the applicant joined the Rassemblement des Republicains (RDR), a predominantly Muslim opposition party. He outlined the political problems in the Ivory Coast where violence and xenophobia against Muslims and northern ethnic groups had become common. In October, 2000 he was arrested while attending at an RDR rally. He was detained in Yopougan prison for three months. There, he was beaten and tortured and was released with a number of RDR prisoners at the order of the President at the beginning of January, 2001.

4 4. He recounted no further difficulties until July, 2003 when uniformed men came to his house seeking out RDR members. He was out visiting friends so the men assaulted his wife saying that they would return when her husband was home. His neighbours telephoned him to warn him not to return to his house and they gave shelter to his wife and children. That night the applicant's friend Mahmoud, who is also an RDR member was killed. The next day the applicant collected his wife and children from the neighbour's house and went with them to his hometown of A. which is some 30 kilometres from Abidjan, where they stayed for a week before travelling on to Mali.

5 5. In Mali they were advised to leave as the people of the Ivory Coast were not welcome there. The family then made arrangements to go to Ireland but on the day that they were due to travel, the applicant was stopped at the airport and refused permission to travel as his documents were found not to be in order. His wife and children then came to Ireland without him and his wife gave birth to their third child in Ireland shortly afterwards. That child is a citizen of Ireland and the applicant's wife and two other children were granted permission to remain in Ireland on the basis of her parentage of an Irish citizen child.

6 6. The applicant who was left behind spent the next three years in Mali where he earned a living as a cloth trader in a market. He then moved to Togo where he lived for six months before coming to Ireland via France on the 21 ^st January, 2007. He did not at any stage apply for asylum in either Mali or Togo. The applicant says that he paid a trafficker to travel to Ireland. He furnished a birth certificate, a nationality certificate and an Ivorian nationality card bearing his photograph as proof of his identity but he says that he travelled on false documentation.

7 7. His application before the Refugee Applications Commissioner failed and a negative recommendation was made. Some credibility issues on details of the applicant's narrative were identified but the s. 13 report mainly relied on country of origin information from a U.K. Home Office Operational Guidance Note (OGN) on the Ivory Coast dated the 14 ^th November, 2006 which stated that for lower ranking RDR members, internal relocation within the Ivory Coast would be a viable option.

The appeal

8 8. The Refugee Legal Service (RLS) lodged a notice of appeal to the Refugee Appeals Tribunal (RAT) against the Commissioner's recommendation. The applicant furnished two medical reports together with two previous RAT decisions and three country of origin information (COI) reports in support of his appeal. The first medical report had been prepared by a G.P. in Galway and became a feature of the challenge. This medico-legal report records that the applicant claims to have been beaten and tortured both mentally and physically while in detention in the Ivory Coast and says that after he was released he was hospitalised and treated after suffering a severe injury to his left ear. The report notes that he had multiple scars on the upper and lower limbs and scalp, that he suffered from insomnia and anxiety and that he suffered a loss of hearing in his left ear as well as having recurrent ear infections in that ear. He was referred to an ENT specialist who also provided a medico-legal report. That report noted that the applicant claimed to have been assaulted with an iron bar and to have received a significant temporal parietal injury and at a later date had major surgery to the left ear. The report records that he had " fairly significant" surgery to the left ear although " it is difficult to know exactly what was done and that there was evidence of auricular excision and a meatoplasty". The hearing loss in his left ear was permanent and he would require ongoing care. The ENT specialist made no reference to the reason for the " radical mastoid surgery".

9 9. An attendance note of the oral appeal hearing which took place in November, 2007 was available to the Court. The applicant's affidavit includes an averment that he was not satisfied with the standard of his interpreter at his hearing and also that he had shown the Tribunal Member his scars on his body. The applicant's wife gave evidence at the hearing and confirmed that her husband was an RDR member and had been in custody for three months in 2000. Her evidence that she never discussed with her husband the events of the fateful day when the soldiers came to her house and attacked her, was found simply not credible. The Presenting Officer questioned the applicant on the contents of an up to date U.K. Home OGN on the Ivory Coast which stated that low level members of the RDR were not persecuted, but the applicant disagreed with the content of the OGN.

10 10. A negative decision...