H.R.A v Minister for Justice Equality & Law Reform

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Faherty
Judgment Date15 August 2016
Neutral Citation[2016] IEHC 528
Docket Number[2010 No. 859 J.R.]

[2016] IEHC 528

THE HIGH COURT

JUDICIAL REVIEW

Faherty J.

[2010 No. 859 J.R.]

BETWEEN
H. R. A.
APPLICANT
AND
THE MINISTER FOR JUSTICE EQUALITY & LAW REFORM

AND

THE REFUGEE APPEALS TRIBUNAL
RESPONDENTS

Asylum, Immigration & Nationality – Refusal to grant refugee status – Fear of persecution by reason of ethnicity – Negative credibility – Language analysis report – Reasoned assessment – Certiorari – De novo consideration

Facts: Following the refusal to grant refugee status to the applicant by the second named respondent on the ground that the applicant's general credibility had not been established, the applicant by way of judicial review application sought an order of certiorari to quash the decision of the second named respondent. The applicant contended that the second named respondent had made no proper assessment of the applicant's core claim namely that as member of a particular clan he was at risk of persecution from a majority clan. The applicant further contended that the second named respondent did not properly assess the language analysis reports relied on by the applicant. The second named respondent contended that there were inconsistencies and discrepancies in the evidence adduced by the applicant.

Ms. Justice Faherty made an order to quash the decision of the second named respondent. The Court further remitted the matter for de novo consideration to the second named respondent. The Court found that there was no clear indication as to how the second named respondent arrived at the conclusion that the applicant was not of the claimed ethnicity. The Court held that there was no evidence in the decision as to the weight attributed to the language analysis reports, which had potential to assist the second named respondent in concluding the ethnicity of the applicant. The Court held that the applicant was entitled to a reasoned assessment. The Court found that applicant's claim was not lawfully addressed. The Court held that the second named respondent's serious reservations and concerns could not sustain the decision of the second named respondent.

JUDGMENT of Ms. Justice Faherty delivered on the 15th day of August, 2016
1

This is a telescoped hearing wherein the applicant seeks certiorari of the decision of the second named applicant dated 12th May, 2010.

Background and procedural history
2

The applicant is a Somalian national. He claims to be a member of the Reer Xamar clan in Southern Somalia and he says he was born on 10th February, 1982 in Mogadishu. He says that his family fled Mogadishu in 1992 and went to Afgooye. He says that from aged 10 he lived in Afgooye until he left Somalia in 2008. The applicant claims persecution on grounds of race and ethnicity by reason of his membership of the Reer Xamar clan. He states that his father was killed in 1996 and two of his brothers were killed, one in 1998 and the other in 2006. He also states that a sister was kidnapped and forced into marriage in 2006. The killings and the sister's abduction were at the hand of the majority Habar Gadir clan in Somalia. The applicant claimed that two other brothers disappeared in 2006 and 2007 respectively. The applicant himself claims to have been attacked and shot by Habar Gadir in 2002 and he states that he was imprisoned for three months in a militia camp in 2003. He was subsequently captured several times from his house. In 2005he was held for seven months and released only after relatives paid 500 dollars to secure his release. Thereafter, the applicant was subjected to forced labour on occasions. He states that in 2007 following continued harassment and assaults from Habar Gadir and a threat made to him by members of Al Shabaab who were of the belief that the applicant was a spy and wanted him to fight with them against the transitional government and the Ethiopian forces, the applicant believed that he had no option but to leave Somalia. Thus in January, 2008 he fled Somalia with financial assistance rendered by an aunt who lived in Australia.

3

The applicant claims that he arrived in this state by air on 7th January, 2008. He applied for asylum on that date. He completed an ASY1 Form and a s. 8 interview on 9th January, 2008. He underwent two s. 11 interviews on 16th and 19th July, 2008, respectively. In a decision dated 27th February, 2009, the Refugee Applications Commissioner refused the applicant refugee status. The Commissioner found that the applicant's general credibility had not been established, thus precluding the application of the benefit of the doubt. In refusing the application, the Commissioner relied in part on a Sprakab language analysis report which was obtained by ORAC in 2008.

4

The applicant appealed the Commissioner's recommendation on 16th April, 2009 to the Refugee Appeals Tribunal. Subsequent to the filing of the appeal, the applicant's present solicitor instructed De Taal Studio, an entity based in the Netherlands, to prepare a contra-expertise language analysis. De Taal's report, dated 14th January, 2010, was duly furnished to the Refugee Appeals Tribunal on 22nd January, 2010. Revised grounds of appeal and submissions were furnished to the Tribunal on the date of the oral hearing of the appeal, being 10th February, 2010.

5

The decision of the Tribunal dated 12th May, 2010 issued on 9th June, 2010 and it upheld the Commissioner's recommendation not to declare the applicant a refugee. The salient parts of the Tribunal's decision are referred to elsewhere in this judgment.

6

The within proceedings issued on 24th June, 2010 seeking, inter alia, relief by way of certiorari of the decision on some 28 grounds.

The submissions on behalf of the applicant
7

Counsel on behalf of the applicant submits that while the Tribunal Member accepted that the applicant was Somali, thereafter she made no proper assessment of the applicant's core claim, namely that as a member of the Reer Xamar clan he was at risk of persecution from a majority clan. In support of the argument that the Tribunal Member failed to deal with the applicant's core claim, counsel relies on the dicta of MacEochaidh J. in A.A.S. v. RAT [2013] IEHC 44 and in B.O.B. v. RAT [2013] IEHC 187. In the latter judgment, MacEochaidh J. states:

'7. Having set out how the Tribunal Member approached the claim, I now examine the first complaint in respect thereof. Was the applicant's core claim actually decided by the Tribunal Member? A number of authorities are cited by the applicant in support of the proposition that a core claim should be decided (see E.P.A. v. The Refugee Appeals Tribunal, (Unreported, Mac Eochaidh J., 27th February 2013) [2013] IEHC 85), where the court said, as to the core claim:

'A clear and reasoned finding on this central issue was required of the Tribunal and a failure by the Tribunal Member to decide this critical part of the applicant's claim in express terms establishes a substantial ground that the decision is unlawful ... (see paragraph 9 of the decision).'

8

Furthermore, the necessity to deal with the core claim was underscored by Clarke J. in M.M.A. v. Minister for Justice [2009] IEHC 217:

'42. This is the key issue in the case. The applicant contended that the Tribunal Member failed to address the core issue in the applicant's claim namely that he is a non-Arab Darfuri whose village was attacked. It was argued that his case is supported on an objective basis by both medical evidence and very specific COI. Counsel argued that decision-makers in asylum cases must deal with the core issue of the case and reliance was placed on Sango v. The Minister for Justice, Equality and Law Reform [2005] IEHC 395 where Peart J. granted leave on the basis that it was arguable that the Tribunal Member had made negative credibility findings on three matters that were 'arguably of too peripheral to the core issue to justify an overall adverse credibility finding.' Peart J. held that 'There must be a cogent nexus between the matters upon which the applicant has been found not to be credible and the core issue in the application.'

9

The Tribunal Member erred in not carrying out any forward looking assessment. In support of this contention, counsel relies on the dictum of O'Keeffe J. in J.N.A. v. RAT [2012] IEHC 480 and F.A. (Pakistan) v. RAT [2015] IEHC 502. Insofar as it could be said that the assessment of future risk was broached by the Tribunal Member it was by way of the general statement that nothing the applicant told the Tribunal Member convinced her that he had a well-founded fear of persecution for a Convention reason. That statement was so general as to be meaningless.

10

The Tribunal's omissions were in the teeth of the findings in the De Taal language analysis report which supported the applicant's claim that he was from southern Somalia and of the Reer Xamar clan. The De Taal findings, together with the country of origin information which was before the Tribunal Member, advanced a very strong case for refugee status for the applicant. The De Taal report conflicted with the Sprakab report, yet this conflict was neither addressed nor resolved by the Tribunal Member. The decision-maker did not say which aspects of the De Taal report were either accepted or rejected. The Sprakab Report commissioned by ORAC was subjected to heavy criticism in the applicant's appeal submissions yet those criticisms were not addressed. In aid of the submission that the Tribunal Member improperly failed to state why the Sprakab report was preferred over the De Taal report, counsel cites D.V.T.S. v. Minister for Justice [2007] IEHC 305. It is submitted that insofar as the personal history of the Sprakab language analyst was concerned, the report did not state where in Somalia the language analyst was born. Furthermore, the reports attested that the analyst had last visited Somalia in 1990. More importantly, there was no...

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