A (F A) v Min for Justice & Refugee Appeals Tribunal (Zaidan)

• Jurisdiction: Ireland
• Judge: MR. JUSTICE BIRMINGHAM
• Judgment Date: 24 June 2008
• Neutral Citation: [2008] IEHC 220
• Court: High Court
• Date: 24 June 2008

[2008] IEHC 220

THE HIGH COURT

[1268 JR/2006]

A (F A) v Min for Justice & Refugee Appeals Tribunal (Zaidan)

BETWEEN

F.A.A.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM and DES ZAIDAN (SITTING AS THE REFUGEE APPEALS TRIBUNAL)

RESPONDENTS

SANGO v MIN JUSTICE & REFUGEE APPEALS TRIBUNAL (MCHUGH) UNREP PEART 24.11.2005 2005/53/11227 2005 IEHC 395

RASHEED ALI v MIN JUSTICE & ORS UNREP PEART 26.5.2004 2004/2/244 2004 IEHC 108

UNHCR'S POSITION ON SUDANESE ASYLUM-SEEKERS FROM DARFUR 2006 PARA 8

UNHCR'S POSITION ON SUDANESE ASYLUM-SEEKERS FROM DARFUR 2006 PARA 9

SAMBASIVAM v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2000 IMM AR 85

MARIO v SECRETARY OF STATE FOR THE HOME DEPARTMENT 1998 IMM AR 312

BITI v REFUGEE APPEALS TRIBUNAL (RYAN) & ORS UNREP FINLAY GEOGHEGAN 24.1.2005 2005/4/827 2005 IEHC 13

I (S) v MIN JUSTICE UNREP FINLAY GEOGHEGAN 11.5.2007 2007 IEHC 165

IMMIGRATION

Asylum

Judicial review - Leave - Credibility - Question of internal relocation - Excusive reliance by respondent on UK Home Office operation guidelines - Delay between oral hearing and decision - Whether credibility conclusions flawed - Whether court should substitute own views for those of respondent - Whether delay undermined integrity of decision - Whether absent special circumstances a delay of less than three and a half months could provide grounds for challenge to decision - Whether decisions must be based on most up to date and authoritative information possible - I(S) v Minister for Justice [2007] IEHC 165, (Unrep, Finlay Geoghegan J, 11/5/2007) applied; Biti v Refugee Appeals Tribunal [2005] IEHC 13, (Unrep, Finlay Geoghegan J, 24/1/2005) and Sango v Minister for Justice [2005] IEHC 395, (Unrep, Peart J, 24/11/2005) distinguished; Rasheed Ali v Minister for Justice [2004] IEHC 108, (Unrep, Peart J, 26/5/2005), Sambasivam v Secretary of State for the Home Department [2000] Imm AR 85 and Mario v Secretary of State for Home Department [1998] Imm AR 306 considered - Refugee Act 1996 (No 17), s 11 - Leave to apply for judicial review granted (2006/1268JR - Birmingham J - 24/6/2008) [2008] IEHC 220

A (F A) v Minister for Justice, Equality and Law Reform

Facts: The applicant sought leave against an unsuccessful decision for refugee status. Adverse findings of credibility against the applicant for refugee status were impugned as unfair in that the Tribunal did not accept the explanations given or had not provided him with the benefit of the doubt. The applicant alleged that the Tribunal had placed exclusive reliance on certain guidance notes. Considerable delay took place between the hearing and the decision.

Held by Birmingham J. that the delay in the case interacted with the reliance on certain notes. It was important that decisions were based on the most up-to-date information. Substantial grounds were established and an opportunity would be provided to counsel to consider the judgment and to make proposals as to the terms on which leave would be granted.

Reporter: E.F.

1 MR. JUSTICE BIRMINGHAM delivered on the 24th day of June 2008

2 1. This is a case where the applicant seeks leave to apply for judicial review of a decision of the Refugee Appeals Tribunal ("RAT"), dated 19 ^th June, 2006, which affirmed the earlier recommendation of the Office of the Refugee Applications Commissioner ("ORAC") that he not be declared to be a refugee.

Factual Background

3 2. The factual background to the unsuccessful claim for asylum is that the applicant states that he is a Sudanese national from the Darfur region. Specifically, the applicant links his departure from Sudan to Ireland to the fact that his village, Khor Abeche, was attacked by the Janjaweed on 7th April 2005. This, apparently, was by way of revenge or a reprisal for an incident about a month earlier. His case is that he departed Sudan to Ireland by ship, having moved from his home village, first to another village and then to Nyala, the regional capital. He did so with the assistance of his uncle, who apparently was a man of some means. The journey took some three weeks in all and involved a change of ship en route. He entered the State on the 28 ^th July, 2005, and then proceeded to apply for asylum.

The RAT Decision

4 3. The Tribunal decision was primarily reached on the basis that the claim advanced by the applicant lacked credibility, though there was also a conclusion reached that internal relocation was, or might be, an option. The applicant now seeks to challenge the decision essentially on four grounds. I would summarise those grounds as follows;

5 i a. An alleged failure to properly consider and adjudicate on core matters of fact;

6 ii b. An allegedly flawed assessment of credibility;

7 iii c. A reference to a UK Home Office Operation Guidelines document when dealing with the question of internal relocation; and

8 iv d. Criticism of the delay between the RAT oral hearing and decision.

9 4. I will deal briefly with each of these in turn.

(a) The failure to properly consider and adjudicate on core matters

10 5. The background to this ground was that the section 13 report, at first instance, seems to have been fundamentally flawed. In particular, the ORAC officer, having undertaken an amount of research, concluded that Khor Abeche - the applicant's home village which he says was attacked -just did not exist. In fact, the existence of the village is absolutely indisputable and that there was indeed an attack on 7 ^th April 2005 is well documented. Understandably, the applicant and his legal team were greatly concerned to correct these fundamental errors at the appeal. However, the Presenting Officer expressly accepted that the analysis in the section 13 report was inadequate. In these circumstances, it was, in effect, common case that there had been a bloody attack on the village from which the applicant was claiming to have come. In that situation, I do not find it at all surprising that there would be no specific finding by the Tribunal Member on this matter in the decision.

11 6. It is true that there does not seem to have been any specific finding as to whether the applicant was in Khor Abeche on the occasion when it came under attack. I think it would have been desirable that there would have been such an express finding. However, reading the decision as a whole, and, in particular, reading the portion of the decision that deals with the conclusions reached in relation to credibility, it seems to me that it is clearly implicit in the decision that the Tribunal Member was taking the view that he did not believe that the applicant was in fact in the village. In that sense, I do not believe that this case is comparable to the decision of Peart J. in Sango v The Minister for Justice, Equality and Law Reform [2005] IEHC 395, where the Tribunal Member failed to make any assessment of the alleged fact that the applicant had the physical characteristics of a Tutsi, which was central to his asylum application, but rather based his assessment of credibility on peripheral matters.

(b) The issue of the Assessment of Credibility

12 7. The adverse findings that the Tribunal Member reached in relation to credibility seem to have been reached on the following four factors:-

13 i a. The fact that there was no reference in the ORAC Questionnaire to the attack of 7 ^th April 2005 or the earlier incident of 9 ^th March 2005;

14 ii b. The absence of identity documentation. Obviously, in dealing with that issue, the Tribunal Member was having regard to, as he was obliged by statute to have regard to, the provisions of section 11 of the Refugee Act 1996 (as amended);

15 iii c. The fact that the applicant left his young daughter, who was some eight years of age at the time, behind in his country of...