G. N. L. v Minister for Justice and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 30 May 2014
• Neutral Citation: [2014] IEHC 292
• Court: High Court
• Date: 30 May 2014

[2014] IEHC 292

THE HIGH COURT

[No. 1169 J.R./2010]

L (GN) v Min for Justice & Refugee Appeals Tribunal (Dourado)

JUDICIAL REVIEW

BETWEEN

G. N. L.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND LAW REFORM, THE REFUGEE APPEALS TRIBUNAL, RICARDO DOURADO (TRIBUNAL MEMBER)

RESPONDENTS

REFUGEE ACT 1996 S11(B)

A (M M) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARK 12.5.2009 2009/2/257 2009 IEHC 217

A (J N) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP O'KEEFFE 20.11.2012 2012/1/55 2012 IEHC 480

T (M L T) [CAMEROON] v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (LINEHAN) UNREP CLARK 27.6.2012 2012/44/13049 2012 IEHC 568

RSC O.40 r14

SALEEM v MIN FOR JUSTICE 2011 2 IR 386 2011/46/12857 2011 IEHC 223

ROBERT & MURESAN v MIN FOR JUSTICE UNREP PEART 2.11.2004 2004/44/10153 2004 IEHC 348

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

Refugee Appeals Tribunal – Leave to apply for Judicial Review Asylum – Risk of Persecution – Practice and Procedure – certiorari and mandamus – Creditability of findings – Appeal

The facts of this case surround an applicant asylum seeker from the Democratic Republic of Congo seeking refugee status in Ireland. Following a negative recommendation from the Office of the Refugee Commissioner at first instance and a subsequent unsuccessful appeal against that decision in front of the Refugee Appeals Tribunal. The applicant sought leave to seek judicial review of the decision of the Refugee Appeals Tribunal and sought orders of certiorari and mandamus quashing the decision and remitting the matter for re-consideration. The matter came before Mac Eochaidh J. in the High Court.

Mac Eochaidh J. holistically considered all the surrounding facts and party submissions. The applicant claimed that if she was forced to return to her country of origin she would face persecution owing to her membership of a particular social group and her political opinion. The applicant claimed that following elections in DR Congo she was the victim of an attack that led to her fleeing her home and coming to Ireland. The applicant criticized the tribunal's credibility findings and procedural delay, however her main point of contention was that Tribunal misconstrued the nature of the case in making a finding that the applicant's claim was based on her husband's case. Counsel for the applicant submitted that this was a fatal error in circumstances where she had two distinct claims. The respondent emphasized that the Tribunal Member made a number of significant credibility findings and provided detailed reasons in the decision having comprehensively reviewed the evidence. Additionally the respondents contended that the verifying affidavit of the applicant is inadmissible as it was not translated, and further that it is clear from the applicant's solicitor's affidavit that the applicant did not "perfectly understand" its contents. Mac Eochaidh J. decided that the interests of justice would not be served by permitting a procedural point such as this to prevent an applicant from obtaining an order of certiorari of an asylum decision if such were justified. As regards to the pivotal question of whether the tribunal erred when it didn”t recognize the applicant”s claim as being distinct from her husbands, Mac Eochaidh J. held that the tribunal committed a fundamental error of fact by saying that the applicant”s claim for asylum was based on her husband's failed claim. The applicant's claim for asylum was based on her own personal involvement in politics; the fact that this wasn”t recognized detrimentally influenced the final decision of the Refugee Appeals Tribunal. Mac Eochaidh J.granted the leave for appeal and made an order quashing the decision of the Tribunal.

1 1. This is an application for leave to seek judicial review of a decision of the Refugee Appeals Tribunal dated 10 August 2010. The applicant is seeking orders of certiorari and mandamus quashing the decision and remitting the matter for re-consideration.

Background:

2 2. The applicant in this case claims she was born in Kinshasa on 18 ^th August 1977 and is a national of the Democratic Republic of Congo. The applicant recounts that she arrived in the State on 15 ^th May 2007 from the DR Congo via Brazzaville and an airport in France and that she claimed asylum on the same day. The applicant's husband was living in Ireland at the time and had been granted leave to remain in the State. The applicant received a negative recommendation from the Office of the Refugee Commissioner at first instance and subsequently appealed that decision to the Refugee Appeals Tribunal. That appeal was rejected by the Tribunal and it is that decision which the applicant impugns in these proceedings.

3 3. The applicant claims she fears persecution in her country of origin owing to her membership of a particular social group and her political opinion. In this regard, the applicant claims to be a member of the 'AJM' association who provide support for the opposition political party, the MLC (Movement for the Liberation of Congo). She states that she fled the DR Congo because the army controlled by the President want to have her killed. She claims that following elections in DR Congo she was the victim of an attack which led to her fleeing her home and coming to Ireland.

Submissions:

4 4. Counsel for the applicant, Sunniva. McDonagh S.C. challenges the decision of the Tribunal Member under a number of headings in her submissions. In particular, counsel raises issue with: (i) the Tribunal's credibility findings; (ii) procedural delay; (iii) the 'embellishment' of the applicant's claim; (iv) the findings made with regard to the AJM organisation; (v) findings in respect of the applicant's answers to specific questions; (vi) the incorrect application of s. 11B Refugee Act 1996; (vii) the failure to consider country of origin information or future risk of persecution; and (viii) a lack of fair procedures owing to the conduct at the oral hearing.

5 5. Of particular note is the central assertion advanced on behalf of the applicant that in assessing credibility the Tribunal misconstrued the nature of the case in making a finding that the applicant's claim was based on her husband's case. Counsel submits that this was a fatal error in circumstances where she had two distinct claims, namely that she had fled when her husband disappeared in the first instance and secondly that she fled when her sister's home was raided and her sister disappeared. The applicant also claims that fellow members of the AJM disappeared and were murdered at this time. Counsel submits that the...