Gilingil v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 01 June 2006
• Neutral Citation: [2006] IEHC 302
• Court: High Court
• Date: 01 June 2006
• Docket Number: 1025JR/2005

[2006] IEHC 302

THE HIGH COURT

1025JR/2005

GILINGIL v REFUGEE APPEALS TRIBUNAL & ORS

GILINGIL v REFUGEE APPEALS TRIBUNAL & ORS

BETWEEN

DAUD ABDILAHI GILINGIL

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL, MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL IRELAND

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(b)

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S16(2)

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

BUJARI v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HIGH COURT FINLAY GEOGHEGAN J 7.5.2003 2003/7/1414

ZHUCHKOVA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 26.11.2004 2004/51/11705

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL UNREP HIGH PEART 9.7.2004 (EX TEMPORE)OJELABI v REFUGEE APPEALS TRIBUNAL &MIN FOR JUSTICE UNREP PEART 9.12.2005 2005/48/10025

IMAFU v MIN FOR JUSTICE & ORS UNREP HIGH COURT PEART 9.12.2005 2005 IEHC 416 2005/31/6380

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

MEMISHI v REFUGEE APPEALS TRIBUNAL UNREP PEAR 25.6.2003 2003/35/8424

IMMIGRATION:

Asylum

Leave - Credibility - Fear of persecution - Country of origin information - Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 followed - Leave to seek judicial review granted (2005/1025JR - Feeney J -1/6/2006) [2006] IEHC 302

G(DA) v Refugee Appeals Tribunal

the applicant claimed, inter alia, to be a member of the Bandhabow ethnic group which was subject to persecution in Somalia and sought asylum on that basis. His application was refused by the first respondent. Central to that decision was the conclusion reached by the first respondent that the applicant’s credibility on that issue was suspect due to the conclusion that he could not identify certain facts which would be corroborative of that claim. The applicant contended that the first respondent’s conclusion on that issue was erroneous, irrational and failed to consider the evidence tendered by him at a previous stage of the application for asylum.

Held by Mr Justice Feeney in granting leave to institute judicial review that the Refugee Appeals Tribunal was required, as part of the assessment of the credibility process, to have regard to country of origin information and that it was not entitled to make adverse credibility findings against an applicant without cogent reasons bearing a nexus to the decision, that the reasons for any such adverse finding on credibility had to be substantial and not relating only to minor matters. Mere conjecture on the part of the decision maker was insufficient and corroboration was not essential to establish an applicant’s credibility. There was an arguable case that the determination that the applicant was not a member of his stated ethnic group and the determination of credibility thereon was made on the basis of an incomplete understanding of the entire case and was unreasonable and irrational, having regard to the information available to the respondent.

Reporter: P.C.

1 EX TEMPORE JUDGMENT of Mr. Justice Feeney delivered on the 1st day of June, 2006

Mr. Justice Feeney

2 This is an application brought for leave to appeal by way of judicial review of a decision of the Refugee Appeals Tribunal. The decision of the Tribunal was made on 30th August 2005 and the Applicant was informed of such decision by letter dated 12th September 2005, which was received by him on 15th September 2005. The application for leave to apply for judicial review was made on 23rd September 2005 within the time period specified by s. 5 of the Illegal Immigrants (trafficking) Act,2000. Pursuant to s. 5(2)(B) of the said Act this Court is obliged to be satisfied that there are substantial grounds for contending that the decision of the Refugee Appeals Tribunal ought to be quashed.

3 The factual background to this application is that the Applicant first arrived in Ireland on 15th February 2004 and thereafter applied for asylum. The application for asylum commenced on the following day and a questionnaire was completed which was submitted to the refugee applications Commissioner. The evidence in relation to the completion of that application form is that at the time that it was filled out by the Applicant the Applicant did not understand the English language and he had to rely on another Somali to complete the form. There is no doubt but that the form and its contents and the accuracy thereof are the responsibility of the Applicant, but the court should have regard to the circumstances in which it was completed and how the Applicant dealt with any inconsistencies therein as compared to his subsequent accounts during the asylum process. It is also the case that because of the breakdown of civil authority within Somalia that the Applicant was devoid of identity documentation.

4 As part of the asylum process a report to the Commissioner of an interview under s. 11 of the Refugee Act was carried out. The date of that interview was 8th October 2004 but the factual position was that the interview did not conclude on that date and that it recommenced on 26th January 2005. The reports of the two interviews were incorporated into one common report with a uniform pagination and the interview was carried out by the same person using the same interpreter.

5 The authorised officer who carried out the interview duly prepared a report pursuant to s. 13(1) of the Refugee Act1996 as amended dated 18th March 2005 and concluded that report by recommending that she was satisfied that the Applicant had failed to establish a well-founded fear of persecution as defined under s. 2 of the Refugee Act 1996 (as amended). By letter dated 30th March 2005 the Applicant was informed of the recommendation of the Refugee Applications Commissioner and was also told of his entitlement to appeal that recommendation.

6 A number of salient matters can be identified from the report of the Commissioner. Firstly, having considered the country of origin information, which was attached to the report in appendices, the Commissioner concluded that it was evident that there is a reasonable chance that a member of the Bandhabow or Reerhamar in Southern Somalia could be at risk of serious human rights violations as they do not have the means to protect themselves, hence, such a person may be in need of international protection.

7 The Commissioner also stated in the body of the report as follows:

"While the Applicant may have received assistance to complete the questionnaire, he has a responsibility to ensure the information accurately and truthfully reflects the problems he claims to have had in Somalia. His failure to highlight the alleged inaccuracies in his questionnaire in the eight month period prior to his interview constitutes a serious credibility issue given that these inaccuracies are central to the key elements of his claim."

8 The issue as to how this was to be done or how the Applicant was to be cognisant of any inaccuracies given his lack of English is not detailed.

9 The Commissioner went on to hold that the Applicant's description of how he escaped from his kidnappers in December, 1998 and again in "January" 2004 were both implausible. The Commissioner went on to consider the Applicant's claim to have lived for most of his life in a town known as Afgooye. Considerable emphasis was placed upon the Applicant's answer that it was a small town of about 10,000 habitants in 1997 but that he was unsure of the population since he had left. Third party information suggested to the Commissioner that Afgooye had a population in 1990 of 46,300 and by 2004 a population of 79,400. This inaccurate estimation of population received considerable emphasis from the Commissioner.

10 The Commissioner also went on to consider whether or not the Applicant had a knowledge of Bandhabow matters to test the assertion that he was a member of that ethnic group or clan.

11 The Commissioner stated in her report that when asked about the number of Bandhabow families living in Afgooye and Somalia generally, that the Applicant could not give any idea of the numbers but said many had fled and he was unable to give an estimate of numbers involved. There was international research from 2004 which indicated that there were about 100 Bandhabow families left living in Somalia, and the Commissioner concluded that while the Applicant was able to provide accurate responses to some questions about his stated claim, overall, he had not proved conclusively that he has fled the Bandhabow minority group. Given the recognition of the risk to members of the Bandhabow in southern Somalia, that determination was of central importance.

12 The accurate responses referred to were detailed identification of the persons in charge of or the leaders of particular clans and groups in the area. The Applicant was able to identify by name a number of persons and was also able to identify the racial background and geographical location of the Bandhabow clan, their appearance, and was also able to provide a history from whom the Bandhabow were descended consistent with external information and also provided a description of the agriculture carried out in the locality.

13 The Commissioner placed considerable emphasis in relation to the Applicant's alleged lack of knowledge concerning weather features. In fact, when asked about any recollection of a particular drought, the Applicant accurately identified the significant and important drought and correctly dated it to 1992 and was able to identify its duration. He was then asked about further periods of drought and indicated that...