H.M.I. v Minister for Justice & Law Reform
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 06 September 2016 |
| Neutral Citation | [2016] IEHC 516 |
| Docket Number | [2010/1242/JR] |
| Court | High Court |
| Date | 06 September 2016 |
AND
[2016] IEHC 516
[2010/1242/JR]
THE HIGH COURT
JUDICIAL REVIEW
Asylum, Immigration & Nationality – Appeal against the decision of Refugee Appeals Tribunal – Fear of persecution – Issues of ethnicity – Application of forward looking test
Facts: The applicant sought an order of certiorari for quashing the decision of the second named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicant should not be granted refugee status. The applicant contended that the decision-maker failed to give reasons behind its decision and did not carry out the forward-looking test. The applicant claimed that the decision-maker failed to address the core issue as to whether the applicant suffered persecution on account of his ethnicity of being a member of the Bergid tribe of the Darfuri origin.
Ms. Justice Faherty granted an order of certiorari and thus quashed the decision of the applicant and remitted the matter for de novo consideration. The Court found that though there was a clear finding in relation to the applicant's nationality, there was no clear finding concerning the applicant's ethnicity. The Court observed that once it had been determined by the decision-maker that the situation in the country of origin was grave and risky, it was mandatory for the decision-maker to apply the forward-looking test to assess the implication of sending the applicant back to the country of origin, which again called for a determination on the applicant's ethnicity.
This is the substantive hearing of the application for an order of certiorari to quash the decision of the Refugee Appeals Tribunal which affirmed the recommendation of the Refugee Applications Commissioner that the applicant should not be granted refugee status.
By order of this court dated 2nd December, 2015, the applicant obtained leave from this court to challenge the validity of the Tribunal's decision on the following grounds:
d The decision lacked clarity. The applicant is entitled to a decision from which it can be clearly discerned what the reasons or rationale behind the refusal of the applicant's appeal are. Numerous crucial matters relevant to the applicant's claim have not been dealt with. It is unclear whether the Tribunal accepted that the applicant was who he said he was or came from the claimed country of origin. In circumstances where the decision of the Tribunal will be utilised by the first named respondent for other purposes (e.g. whether to grant refugee status, subsidiary protection/leave to remain on humanitarian grounds) it is of crucial importance that the decision is coherent and clear. The lavk of clarity renders the decision invalid.
g No proper forward-looking test was carried out
h Insufficient analysis of the applicant's claim.
The applicant's claim is that he is a Sudanese national of the Bergid Tribe and claims to have been born in a small village in north Darfur on 15th August, 1981. He had approximately four years of schooling. According to his asylum questionnaire, he and his family left his native village because of the 'waging wars' and headed to Omdurman. The applicant claims to have lived in Omdurman since in or about the year 2000, that being his last place of residence in Sudan. In Omdurman he worked as a market trader at the Libya Souk. He asserts that his difficulties began on 10th May, 2008 when there was a clash between the Sudanese government and JEM Forces in the area. While the applicant sympathised with JEM, he was not a supporter, unlike the other market traders. He stated that while going to work on 13th May, 2008 he was stopped by security forces and arrested along with two other people. He was accused of supporting JEM and coming from Darfur to engage in attacks on government forces. He was questioned about the leadership of JEM. Whilst detained he was beaten and tortured. The applicant claims that after five days he managed to escape and went firstly to his mother's house and was told by his mother that his four brothers were missing. He then went to Moualah to his uncle's house where he remained for some days. His uncle learnt from the applicant's mother that the security forces had come looking for the applicant. The situation remained the same after ten days causing him to be fearful. With money he had saved and money from his mother and uncle the applicant was able to leave Sudan. He went to Libya where he was informed that if he did not have residency there he would be returned to Sudan. He then took a ship from a place unknown to a port unknown and arrived in another place unknown to him. He was taken to a house in a rural area and told not to go out. After some two to three days he was taken by car to an airport where he was given a passport and told to follow the agent who was assisting him. The applicant arrived in this State on 14th August, 2008.
The applicant was interview on arrival at Shannon airport on 14th August, 2008 and an ASY1 form was completed on 18th August, 2008. He completed a questionnaire on 25th August, 2008.
The applicant was interviewed on two occasions by ORAC. The first s. 11 interview was conducted on 5th January, 2009 following which a s. 13 report, dated 22nd January, 2009 issued.
In summary, the report found:
• The applicant had not submitted any documentation in support of his claim. He had however submitted a 'Maltese travel document' which he claimed to have used for his travel and in respect of which he claimed the name and details on the document were not his.
• While the applicant had not submitted any documentation to support his claim of Sudanese nationality, he demonstrated a level of knowledge of Omdurman where he claimed to be from that would be expected of a native of the area. For the purposes of the report, it was accepted the applicant was from Sudan.
• Subject to the well foundedness of his fear, the applicant's claim could be considered as constituting a severe violation of basic human rights of a persecutory nature and as such could satisfy the persecution element of the refugee definition.
• For the purposes of establishing the well foundedness of his fear, the applicant had not established his credibility and aspects of his testimony were not considered plausible when examined in light of country of origin information available.
• It was difficulty to accept as credible the manner of the applicant's escape (namely his claim that he was left unguarded prior to being transferred to a detention centre and his claim of being able to travel to his mother's house and then to his uncle's house) given that country of origin information stated that there was a major military crack down in Omdurman and Khartoum at the relevant time. Further, it was difficult to accept that a security guard would have left a suspected member of JEM unguarded.
• The applicant's lack of knowledge at the s. 11 interview of which countries he transited was not accepted as credible given that the note of the applicant's s. 8 interview signed by him stated that he came to the State via Libya, Malta and Brussels.
Following communication by ORAC with the Maltese authorities regarding the applicant's travel document, the Maltese authorities confirmed on 13th April, 2009 that the person named on the document was known to them and that this individual had been issued with the Convention Travel Document which had been found in the applicant's possession. On foot of this information, the applicant was returned to Malta on 21st April, 2009 in accordance with Article 13 of Council Regulation (EC) 343-2003 ('the Dublin11 Regulation'). However, the Maltese authorities subsequently informed the Irish authorities that the Convention Travel Document had officially issued to the individual who was named on the document and not to 'the third country national [the applicant]' who was transferred by the Irish authorities to Malta. Accordingly, the applicant was duly returned from Malta to this jurisdiction on 23rd April, 2009.
A second s.11 interview took place on 5th August, 2009, following which a second s. 13 report issued on 31st August, 2009.
The salient findings were as follows:
• With reference to a letter from 'Darfur Solidarity Ireland' stating that the applicant was from the Bergid Tribe and a native of Darfur, Sudan, it was found that 'this document in itself, cannot obviously be accepted as proof as the applicant's nationality or ethnic group' and in the absence of 'any genuine photographic identity document, such as a passport, it [was] not possible to say if the person named in this document [was] in fact the applicant'. For the purposes of the report, it was 'assumed' that the applicant was a Sudanese national.
• While it was accepted as within the bounds of plausibility that a person of the applicant's ethnicity could have been detained and abused in custody and while it was accepted that his claims if well founded could constitute persecution on the grounds of race and imputed political opinion, the cumulative credibility issues precluded the applicant from being given the benefit of the doubt with regard to his account.
• The applicant's account of his escape from custody at a time of heightened security activity was not accepted as credible. In the course of his second interview, the applicant had added to his earlier account by stating that he had in fact escaped from custody when an armed group which he believed were JEM attacked the police station where he was been held. It was considered that the applicant's explanation (mainly his uncertainty as to...
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