A (G) v Refugee Appeals Tribunal (O'Gorman) and Others

• Jurisdiction: Ireland
• Judge: MS. JUSTICE CLARK,
• Judgment Date: 31 March 2009
• Neutral Citation: [2009] IEHC 157
• Court: High Court
• Date: 31 March 2009

[2009] IEHC 157

THE HIGH COURT

[No. 1104 J.R./2007]

A (G) v Refugee Appeals Tribunal (O'Gorman) & Ors

JUDICIAL REVIEW

BETWEEN

G. A.

APPLICANT

AND

THE REFUNNGEE APPEALS TRIBUNAL (MICHELLE O'GORMAN), THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S13(6)(D)

REFUGEE ACT 1996 S13(6)

A (J) v REFUGEE APPEALS TRIBUNAL (MCHUGH) & ORS UNREP HEDIGAN 15.10.2008 2008 IEHC 310

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S1

REFUGEE ACT 1996 S11A(3)

REFUGEE ACT 1996 S16(16)

REFUGEE ACT 1996 S16(16A)

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION) ART 33

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

K (G) & ORS v MIN FOR JUSTICE & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

IMMIGRATION

Asylum

Leave - Refusal of asylum - Absence of identity documents - Multiple dates of birth provided - Negative credibility findings - Country of origin information - Inconsistencies between questionnaire and interview - Discrepancies in accounts of events - Failure to refer to grounds of appeal - Whether substantial grounds for review - Whether tribunal member should have had express reference to notice of appeal - Definition of refugee - Risk from future involvement in protests - Assessment of credibility - Date of birth - Whether failure to assess knowledge in light of age and mental distress - Absence of medical evidence - Whether risk of serious harm - Standard of proof - Consideration of past events - Absence of state protection - Whether prejudice as result of absence of express reference to grounds of appeal - A(J) v Refugee Appeals Tribunal [2008] IEHC 310, (Unrep, Hedigan J, 15/10/2008); Muanza v Refugee Appeals Tribunal (Unreported, Birmingham J, 8/2/2008); Banzuzi v Minister for Justice [2007] IEHC 2, (Unrep, Feeney J, 18/1/2007) and K(G) v Minister for Justice [2002] 2 IR 418 considered - Refugee Act 1996 (No 9), ss 11, 13 and 16 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 5 - Leave refused (2007/1104JR - Clark J - 31/3/2009) [2009] IEHC 157

A(G) v Refugee Appeals Tribunal

1 This is an application for leave to apply for judicial review of the decision of the Refugee Appeals Tribunal to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner that the applicant should not be granted a declaration of refugee status. Mr. James Healy B.L. appeared for the applicant and Ms. Fiona O'Sullivan B.L. appeared for the respondents. The hearing took place at the King's Inns, Court No. 1, on the 25 ^th March, 2009.

The ASY-1 form and Questionnaire

2 The applicant claims to be a national of Ethiopia and a member of the Orthodox Church. He says he lived in Addis Ababa and his first language is Amharic. He gave three different dates of birth: 12 ^th July, 1988 on his ASY-1 form, 5 ^th July, 1980 on his questionnaire and 5 ^th July, 1979 at interview. He claims to have arrived in the State on the 5 ^th January, 2007 and he applied for asylum four days later. He was open about having made a previous application for asylum in Malta in 2005 but he said that application was not properly processed. His asylum application was accepted and processed by the Office of the Refugee Applications Commissioner (ORAC) and it appears no attempt was made to transfer him back to Malta. On his ASY-1 form it was recorded that at his preliminary s. 8 interview, the applicant said his date of birth was 1988, that he did not have any problems in Ethiopia and he did not fear for his life in Ethiopia.

3 The applicant completed a questionnaire in Amharic which was then translated into English. He said he had nine years of education between 1988 and 1996. He gave no work history. When asked why he left his country of origin he said "If a person leaves his country because of hardship and asks for asylum in another country". He said he was a member of "the Amharic Organization of Kenejit". At the question "have you ever moved to a different town or village to avoid the persecution" he answered he was "faced with a lot of suffering and hardship. Running from city to city and from country to country; I have gone through great suffering. I became a refugee, leaving Ethiopia in 1997. Before that I have suffered a great deal in my country. Because of the grave suffering bestowed on [me], my body was physically damaged." In response to the question whether he had been arrested, detained or imprisoned, he said yes and explained "The reason I do not know, I was imprisoned by Armed forces for I year and suffered without any crime." He said his mother and father were captured and did not return and he said his body had been injured "all over" and "every part" of him was injured. He said he was issued with a passport in Addis Ababa but had lost it. When asked what travel arrangements he had made he said "Even though I wished to save myself from dying, my life was faced with great hardship." He said he left Ethiopia in 1997 (presumably on the Ethiopian calendar) and travelled through Sudan, Libya and Malta by car, boat and plane. He stayed in Sudan for one month, Libya for five months and Malta for one year and three months. He said he applied for asylum in Malta in August, 2005 (which must be on the European calendar) and his application was rejected but he was not given any reasons for the rejection.

The s. 11 Interview and s. 13 Report

4 At his s. 11 interview, which took place on the 14 ^th March, 2007 and was conducted through Amharic, the applicant explained that the current date in the Ethiopian calendar was the seventh month of the year 1999. He submitted a medical certificate from Zauditu Hospital in Addis Ababa where all entries were written both in Amharic and English, as was a registration card from the hospital. Both documents were dated the 23 ^rd July, 2004 (which must be on the European calendar). He also submitted the envelope in which he said the documents were posted to him. He did not submit any identity documents and said his birth certificate was at his parents' address. (His parents were both described as deceased).

5 The applicant was initially evasive but when pressed about the problems he experienced in Ethiopia he said he was arrested because he was selling the newspaper of an opposition political party. He said he bought newspapers from a supplier and sold them on at traffic lights. He said he sold four named newspapers only and did not sell government newspapers. He said he was not a member of any political party but was a supporter of the Kinijit party. When asked how he supported that party he said he took part in public protests when they occurred. When asked if his support for Kinijit caused him problems he said the government knew he was a supporter and that he was selling opposition newspapers but when pressed to answer the question he said "no". The applicant was then asked if he had problems in Ethiopia in the past and he said he was arrested on the street in November, 1996 by four unknown men because he was selling opposition newspapers. He was put in a car and brought to a compound. He was beaten by guards two or three times a day and was not fed properly or given proper food. He was sleeping on a filthy floor in a small cell with around eighty other prisoners, sometimes up to 100. He first said he was detained for "about a year" but later said it was "for nine months in total (not a full year)". No charge was brought against him; he saw a lawyer but "nothing happened". He said he escaped in July, 1996 when he was left out of the rooms into the sunshine and when he saw two people escaping through a fence he followed them. After his escape he went to Filwutha area where he stayed for around twenty days. He said the incident documented in the medical certificate occurred after his release from prison in July, 2006 and was inflicted upon him by soldiers because he escaped from prison and because he sold political newspapers. He was asked in what language medical certificates are normally issued in Ethiopia and what calendar is used in such certificates and he answered that English and the European calendar were used.

6 The applicant was asked to name the parties making up Kinijit. He first said it was a party of many nations but then conceded he did not know. When asked why he did not join Kinijit he said it was because he did not want to attract more danger. The ORAC interviewer said he found it inconsistent that the applicant was prepared to publicly sell opposition papers with the associated inherent dangers but that he was not prepared to actually join Kinijit which appeared relatively less dangerous. The applicant then said he wanted to wait for a suitable time to become a member.

7 At the start of the s. 11 interview, when asked if he completed his questionnaire himself, the applicant said "No one helped me to fill it in and at that time I was not all right mentally and I was not conscious of what I was talking aboutand writing at that time." When asked if what he had written on his questionnaire was true and if the details about his family were true, he answered "yes". He was again asked if all the details recorded on the questionnaire were true and accurate and he said "I don't know what I have written at that time so I can't tell you for certain but I remember some of the things". He was given a copy of the questionnaire and asked to read through it. Having done so, he made one correction relating to the date on which he left Ethiopia, changing it from the 16 ^th to the 17 ^th December,...