FM v Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Ms. Justice Stewart |
| Judgment Date | 21 July 2016 |
| Neutral Citation | [2016] IEHC 417 |
| Docket Number | [2010 No. 251 J.R.] |
| Court | High Court |
| Date | 21 July 2016 |
[2016] IEHC 417
THE HIGH COURT
JUDICIAL REVIEW
Stewart J.
[2010 No. 251 J.R.]
AND
Asylum, Immigration & Nationality – Appeal against the decision of the Refugee Appeals Tribunal – S. 13 (1) of the Refugee Act 1996 – Refusal of asylum claim – Fear of persecution – Certiorari – Credibility of evidence
Facts: Following the decision of the first named respondent to affirm the recommendation of the Refugee Applications Commissioner that the applicant should not be granted the status of a refugee, the applicant in the present application by way of judicial review now sought an order of certiorari for quashing the decision of the first named respondent. The applicant also sought other ancillary reliefs and declarations. The applicant contended that the first named respondent failed to take into account relevant material for the determination of credibility of claim of persecution and instead gave a finding on irrelevant materials. The respondents contended that the ground of claim of persecution were mostly vague, contradictory to the narratives, irrelevant and failed to specify the occurrence of “fear of persecution.”
Ms. Justice Stewart refused the reliefs sought by the applicant. The Court in line with the principles laid in I.R v Minister for Justice, Equality and Law Reform [2009] IEHC 353 held that the determination of credibility of claim of persecution was the duty of the administrative decision maker and not the court in judicial review. The Court held that a Court in judicial review could not give decision on the merits of the case rather it could only decide about the legality of the decision. The Court held that in the instant case, it was clear as to on which piece of evidence the Tribunal based its finding. The Court held that in instant case, the documents submitted by the applicant were possibly fraudulent and contradicted with the narratives given by the applicant, for which the applicant provided no explanation. The Court held that the complaint of the applicant as regards the manner of the use of the country of origin information could not establish that the decision of the first named respondent was unlawful.
This is an application for judicial review by way of certiorari to quash a decision of the first named respondent dated 12th January, 2010, which affirmed the recommendation of the Refugee Applications Commissioner pursuant to s. 13 (1) of the Refugee Act 1996 that the applicant should not be declared a refugee. It is moved by way of Notice of Motion and grounded upon the Statement of Grounds dated 3rd March, 2010.
The applicant also seeks a declaration from this Court that the procedures of asylum applications provided for in the Refugee Act 1996 (as amended) and the European Communities (Eligibility for Protection) Regulations 2006 failed to comply with the minimum standards prescribed by Council Directive 2005/85/EC of 1st December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status O.J. L326/13 13.13.2005 by depriving the applicant of an effective remedy against the first instance determinations of the applications, as required by Article 39 of the Directive.
A Declaration by this Court is also sought by the applicant to the argument that the applicant has not been provided with an effective remedy for the purposes of Article 13 of the European Convention on Human Rights, an transposed into domestic law by the European Convention on Human Rights Act, 2003.
The applicant was born in Helmand Province, Afghanistan. He is of Hazara ethnicity and is a Shi'a Muslim. It appears that the applicant received no formal education in Afghanistan. He lived with his parents on a farm and worked the land with his family. In 1994, the Taliban occupied Helmand Province and ordered that each family living in the Province offer one person to the the militia campaign. After being initially displaced, the Taliban returned to the applicant's village in 2005, where, under the threat of death, the applicant agreed to transport weapons for them.
It transpired that the Taliban commanders who controlled the applicant's village were Mujahideen operatives. Consequently, the Taliban forced the applicant to provide intelligence on the local commander. They held the applicant for fifteen days in order to extract such information. During the applicant's s. 11 interview, he replied to a question as to whether he was tortured during these fifteen days with the following statement:-
‘They broke my arm in several places with the butt end of the rifle. The reason why I was forced to let them know was that they had already broke my arm and they threatened to cut my arm off I did not tell them about the commander.’
The disappearance of a local Taliban commander in Helmand Province triggered enquiries about the applicant's whereabouts from another Taliban commander and his agents. These enquiries motivated the applicant to move to another location in Afghanistan, where he stayed with his aunt for a number of weeks. The applicant states that his brother-in-law was beaten in order to obtain the applicant's whereabouts and address. The applicant also states that his family's farm has been confiscated by the Taliban. He alleges that he became aware of this through a telephone conversation with his parents, who now live with his brother-in-law.
The applicant's claim rests upon a fear of persecution based on his political opinion. In his s. 8 interview, he expressed a fear that, if he was returned to Afghanistan, the Taliban would locate his whereabouts. The applicant did not report his fears to any of the Afghan authorities because ‘If they knew about my whereabouts, they would arrest me and kill me, therefore I couldn't report my fears to anyone.’
The applicant left Afghanistan on 15th April, 2008 and arrived in Ireland on 30th June, 2008, having travelled through Iran and Turkey on his way to Ireland. He then applied for asylum in this State on that date. The applicant paid some $12,000.00 to an agent to secure his passage from Afghanistan to Ireland. The applicant submitted an application pursuant to s. 8 of the Refugee Act, 1996 on 30th June, 2008. An “ASY1 Form” was completed and signed by the applicant on 1st July, 2008, wherein it is detailed that the applicant has two living parents and a sister in Afghanistan.
The applicant completed a questionnaire on 6th July, 2008, and was interviewed by officials from ORAC pursuant to s. 11 of the 1996 Act on 4th November, 2008, 4th December, 2008 and on 29th January, 2009. At Part 3 of s. 8 interview, the applicant provides the following answer to the question as to why he left his home in Afghanistan and came to Ireland:-
‘I used to be a farmer, when the Taliban came to power. All the houses in the region had been requested to give a man from each house, to join and fight with Taliban. I did not join them, because I had nobody (brothers in family). Then they asked me ‘If you don't want to come (fight) with us, then you should help us by transporting our weapons, using your horses and dinkies. I did not accept, so then they tortured me and I found no other choice but to cooperate with them, I worked with them for some time but once gain they tortured me, they wanted to cut my hand off and they wanted me to inform them about some local commandeer [sic], and I had no other choice but to inform them about a local commandeer [sic].’
In the s. 8 interview, the applicant stated that ‘ I went to M.S. and I went to S.P.K., they followed me there as well, then I was forced to run away.’ The applicant was also asked what he fears may happen upon his return to Afghanistan, to which he replies that ‘My fear of returning to my country is that I will be killed by the brother of the commander I informed the Taliban about, and his brother is a powerful man in the current government. If I return to my country I will be killed by his brother.’
ORAC made a negative recommendation in its report, pursuant to s. 13 of the Refugee Act 1996. The Commissioner found that the applicant's claim lacked credibility, as the Hazara were actively persecuted by the Taliban in the mid-1990s, at a time when the applicant alleges the Taliban sought to recruit him. The Commissioner also doubted the applicant's claim that the British forces did not assist him when he approached them because he did not speak English. The Commissioner found this assertion to be questionable, as the applicant had failed to refer to his exchanges with the British forces in his first interview.
The Commissioner referred to the applicant's past injuries, along with the accompanying medical reference, finding that such a medical report did not serve as proof of past persecution in the manner detailed by the applicant. The applicant's x-ray report found irregularities with the applicant's left arm, which indicated an aggravation of an old trauma. It also found that there could be other possible causes for the applicant's injuries. The Commissioner concluded that the applicant's statements lacked coherence and his general credibility had not been established.
The applicant's first s. 11 interview took place on 4th November, 2008, and was conducted through the Dari language, where more detail was placed upon the applicant's history in Afghanistan prior to his arrival in Ireland. The applicant stated that he left Helmand Province and went to his aunt's address because he believed he would be safe from the Taliban there. He stayed with his aunt...
To continue reading
Request your trial