GMD (Afghanistan) v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Ms. Justice Stewart
• Judgment Date: 11 December 2015
• Neutral Citation: [2015] IEHC 787
• Docket Number: [2013 No. 918 J.R.]
• Court: High Court
• Date: 11 December 2015

[2015] IEHC 787

THE HIGH COURT

JUDICIAL REVIEW

Stewart J.

[2013 No. 918 J.R.]

BETWEEN

G.M.D. (AFGHANISTAN)

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL AND THE

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

Asylum, Immigration & Nationality – The Refugee Act, 1996 – Appeal against the decision of the Refugee Appeals Tribunal – Certiorari – Fear of persecution – Art. 1F of the 1951 Refugee Convention – Exclusion of persons involved in crime against humanity and peace – Negative credibility findings

Facts: The applicant sought an order of certiorari for quashing the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicant should not be declared a refugee. The first named respondent contended that since the applicant was a member of Taliban and involved in various heinous crimes against humanity, he could not be given a refugee status under art. 1F of the 1951 Refugee Convention. The applicant contended that he merely supplied bombs at relevant places at behest of the Taliban against his will and desire and that he would be killed if he was to return to the country of origin.

Ms. Justice Stewart refused to grant leave and an order of certiorari in the present telescoped hearing. The Court held that the first named respondent's findings with respect to the core claim of the applicant were cogent and appropriate. The Court observed that since the applicant's narration of events was found to be incredible, there was no need to apply forward-looking test. The Court held that since the applicant was deeply involved in crime against humanity, the exclusion clause under art. 1F of the 1951 Refugee Convention would apply to the applicant.

JUDGMENT of Ms. Justice Stewart delivered on the 11th day of December, 2015

1 This is telescoped hearing for judicial review seeking certiorari to quash a decision of the Refugee Appeals Tribunal dated 14th October, 2013, in respect of the applicant, and communicated to him by letter dated 21st October, 2013, remitting the appeal of the applicant for de novo consideration.

2 The proceedings herein were issued on 5th December, 2013, thereby outside the statutory 14-day time limit for bringing judicial reviews of this nature. The applicant explained the delay at para. 20 of the grounding affidavit sworn on 5th December, 2013, and exhibited at p. 18 of the booklet of pleadings furnished to the court. The respondents did not object to the extension of time. In light of the foregoing and in the circumstances, I am satisfied that there are good and sufficient reasons to extend time and I so do.

Background

3 The applicant is a national of Afghanistan born on 26th April, 1989. The following is the applicant's account of the events that gave rise to him claiming international protection in Ireland.

4 The applicant's father was a member of the Taliban and the applicant was initially unwilling to join. Taliban members threatened the applicant until he and his brother agreed to join their ranks in 2009. He worked as a bodyguard for a commander, transported roadside bombs for senior commanders and brought villagers before commanders if they had disobeyed the Taliban's codes.

5 The applicant's brother was killed in an air strike by international forces and he informed his superiors that he did not wish to continue being part of the organisation. The applicant was severely beaten as punishment for this transgression and he remained a member. The applicant was, one night, on guard duty, when he escaped and fled. The applicant paid US$12,000 to an agent, travelled through Iran and Turkey, staying for three and two months respectively, and then travelled through Europe in a container. The applicant arrived in Ireland on 24th July, 2011. The applicant fears that the government, local villagers, Hezb-e-Islami and the Taliban are pursuing him and he will be killed by one of these groups if returned to Afghanistan.

6 The applicant applied for asylum on 25th August, 2011. The applicant attended eight s.11 interviews at the RAC on the following dates:

1 24th August, 2011;

2 29th August, 2011;

3 29th September, 2011;

4 18th October, 2011;

5 27th January, 2012;

6 14th February, 2012;

7 6th September, 2012; and the

8 30th October, 2012.

Communication issues arose between the interpreter and the applicant during the first and fourth interviews, which were attributable to the regional variance in the Pashto dialects. The RAC did not rely on either of these interviews in its decision. The applicant submitted the following documents in support of his claim:

1 An Afghan identity document (a tazkira);

2 A letter from the Afghan security forces instructing that the applicant should be arrested;

3 A USB memory stick containing two videos and nine photographs, all purporting to show the applicant with other Taliban members carrying weapons;

4 A courier envelope;

5 A letter from Welcome Immigrant Centre dated 7th November, 2012; and

6 An online article referencing the death of a local commander.

7 The RAC issued a report pursuant to s.13 of the Refugee Act, 1996 (as amended) on 23rd April, 2013. The RAC was satisfied that the applicant was from Afghanistan, the videos and pictures were seen as compelling evidence that the applicant was a member of the Taliban, and it was decided that the applicant would be at risk of serious harm from the Taliban if he were to be returned to Afghanistan. The applicant's testimony was deemed to be credible and the risk faced by him was seen to be country-wide. The RAC stated that the applicant was unlikely to have recourse to state protection as this could cause him further difficulties with the Taliban, nor would it be sufficient to protect the applicant from the group. At pg. 224 of the booklet, under the heading “nexus to section 2 grounds”, the authorised officer states:

‘It is accepted that the applicant's claim may fall under section 2 grounds of political opinion and religion. The applicant's alleged desertion from the Taliban could lead the Taliban to perceive the applicant as a political opponent. Indeed, due to the Taliban's view that they are fighting a jihad or holy war, the groups may perceive the applicant's desertion in a religious way.’

8 The authorised officer, over the next eight pages, analysed the exclusion clause. The exclusion clause derives from article 1F of the 1951 Refugee Convention, which states:

‘The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

c) he has been guilty of acts contrary to the purposes and principles of the United Nations.’

9 The Refugee Act, 1996 (as amended) provides for the exclusion clause in s.2(c), allowing that a person who would otherwise be recognised as a refugee in accordance with s.2, may be excluded in circumstances where:

‘There are serious grounds for considering that he or she—

(i) has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes,

(ii) has committed a serious non-political crime outside the State prior to his or her arrival in the State, or

(iii) has been guilty of acts contrary to the purposes and principles of the United Nations.’

10 In the final section, at pgs. 230-231, the authorised officer states as follows:

‘In summary, the ORAC makes the following findings:

• The applicant presents as a mature and intelligent individual who knows the difference between right and wrong.

• It is ORAC's position that the applicant must have been aware of the brutal methods used by the Taliban. The ORAC finds that the applicant was aware of such brutal methods from within a few months of joining the Taliban.

• It is ORAC's position that the applicant arrested villagers, and he did so armed with the knowledge that he could be actively contributing to the execution of a civilian. This contribution by the applicant can be described as aiding and abetting.

• The applicant transported explosives to be used as roadside bombs. Roadside bombs have contributed greatly to civilian deaths in Afghanistan. It is ORAC's position that the applicant must have known such devices are indiscriminate and could potentially kill civilians. The applicant's contribution can be described as aiding and abetting.

• It is ORAC's position that due to the nature of the applicant's job, he was in a position to desert from the Taliban in order to avoid participation in violent acts. It is ORAC's position that this opportunity was available to the applicant long before he took it. It is ORAC's position that the applicant's failure to remove himself from his involvement serves to augment his complicity and individual responsibility.

Having given this issue full consideration, it is concluded that, in accordance with Section 2(c)(i) of the Refugee Act 1996 (as amended), the applicant should be excluded from being a refugee as there are serious grounds for considering he has committed a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.’

11 The applicant appealed the negative recommendation to the RAT by way of form one, notice of appeal dated 13th June, 2013. An oral hearing was held on 14th August, 2013. A note of the hearing, taken by the applicant's legal representatives, was included with the booklet of pleadings,...