I. G. v Sean Bellew and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 11 April 2014
• Neutral Citation: [2014] IEHC 207
• Court: High Court
• Date: 11 April 2014

G (I) v Refugee Appeals Tribunal (Bellew) & Min for Justice

JUDICIAL REVIEW

BETWEEN

I. G.

APPLICANT

AND

SEAN BELLEW (SITTING AS THE REFUGEE APPEALS TRIBUNAL) AND THE MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENTS

[2014] IEHC 207

[Record No. 1030/J.R./2010]

THE HIGH COURT

Immigration and Asylum - Refugee Status - Delay - Well founded fear of persecution - Identification documents - Finding of Refugee Appeals Tribunal - Leave to seek Judicial Review

Facts: This was a telescoped application by an Egyptian national for leave to seek judicial review of a decision of the Refugee Appeals Tribunal, which refused the applicant a declaration of refugee status, as it deemed the applicant failed to make an application as soon as possible after his arrival in Ireland. The applicant claimed he did not make an asylum application immediately upon his arrival as he was told if he made an application he would be deported to Egypt. The applicant was charged for failure to produce appropriate identification documents and at Hearing an Egyptian maritime passport was presented to the District Court. The applicant thereafter made an asylum application and claimed to have a well founded fear of persecution in his home country on the basis of his membership of a social group, religion, race, political opinion and that due to a relationship with a female outside his tribe, there was a likelihood of an honour killing upon his return. Counsel for the applicant submitted the Tribunal Member made an error of fact in finding the applicant did not possess a passport and referred to the valid maritime passport which was presented to the District Court. The respondent”s Counsel submitted the Tribunal Member did not find that the applicant had not possessed a passport but that the applicant had not produced any documentation as proof of identity. The respondent stated it was evident from the affidavit sworn in the proceedings that the applicant's passport was handed to the Gardaí during the District Court proceedings, that the passport was handed back to the applicant's Solicitor at the conclusion of those proceedings and that his interview with ORAC was conducted later. The respondent submitted the applicant could have produced his passport at the ORAC hearing at that time. Counsel submitted the Tribunal made its” finding on the basis of the evidence before it at the time and that the additional information put before by the court did not invalidate the earlier decision.

Held by Mr Justice Mac Eochaidh he concurred with the finding of the Tribunal Member that the applicant did not produce any documentation as proof of identity, that the Tribunal Member could not be criticised for relying on the material which was placed before him at the time he made his decision and that despite the applicant believing the Gardaí had custody of his passport he should have addressed the issue fully in his notice of appeal and submissions to the Tribunal. Mr Justice Mac Eochaidh rejected the claim by the applicant”s Counsel that the Tribunal Member”s finding pursuant to s. 11B(c) of the Refugee Act 1996 was ultra vires as a result of the finding regarding the applicant's passport. Mr Justice Mac Eochaidh held the applicant's submission of the likelihood of deportation was not raised before the Tribunal Member as an explanation for his failure to apply for asylum in a timely manner, nor supported by any facts or evidence. Mr Justice Mac Eochaidh held he did not accept the applicant showed a real risk of being killed in an honour killing, that he could find no error in the manner the Tribunal carried out this assessment nor the manner in which the Tribunal Member conducted the appeal in respect of the applicable statutory provisions. Mr Justice Mac Eochaidh further held although the Tribunal Member may have erred in its” finding of internal relocation, it was not substantial to justify an order of certiorari and that the various credibility findings and the finding on internal relocation were distinct. Mr Justice Mac Eochaidh referred to the medical report submitted on the applicant”s behalf and held the report did not prove how the applicant's traumatic state was caused, finding no error in the manner the Tribunal Member addressed the report. Mr Justice Mac Eochaidh refused the applicant leave to seek judicial review.

Leave to seek judicial review refused

REFUGEE ACT 1996 S13(6)(C)

REFUGEE ACT 1996 S11B(C)

REFUGEE ACT 1996 S13

IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 10.5.2005 2005/31/6357 2005 IEHC 150

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S17(7)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)(D)

REFUGEE ACT 1996 S11B(D)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)

REFUGEE ACT 1996 S16(16)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 7

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 7(1)

A (A) [PAKISTAN] v REFUGEE APPEALS TRIBUNAL UNREP MAC EOCHAIDH 18.9.2013 (EX TEMPORE)

TALBOT v BORD PLEANALA & ORS 2009 1 IR 375 2009 1 ILRM 46 2008/60/12417 2008 IESC 46

K (RM) [DRC] v REFUGEE APPEALS TRIBUNAL (LINEHAN) & MIN FOR JUSTICE UNREP CLARK 28.9.2010 2010/27/6636 2010 IEHC 367

1 1. This is a 'telescoped' application for leave to seek judicial review of a decision of the Refugee Appeals Tribunal dated 22 ^nd June 2010, refusing the applicant a declaration of refugee status. The applicant's appeal to the Tribunal was considered without an oral hearing on the 'papers only' owing to a finding by the Refugee Applications Commissioner pursuant to s. 13(6)(c) of the Refugee Act 1996 that, without reasonable cause, he failed to make an application as soon as reasonably practicable after his arrival in the State.

Background:

2 2. The applicant is an Egyptian national who states that his date of birth is the 2nd February 1977. He claims to have arrived in the State by boat, disembarking at Waterford Port in February 2006 and making his way by bus to Dublin thereafter. The applicant claims that he did not apply for asylum immediately on his arrival in Ireland as he was told by people he knew that if he made an application he would be deported back to Egypt. The applicant worked in a series of jobs until he came to the attention of the Gardaí and was arrested and detained in Cloverhill Prison. The applicant was charged with certain offences under the Immigration Act 2004 for failure to produce appropriate identification documents. However, the terms of the Probation Act were applied to the applicant when a verified Egyptian maritime passport was presented to the District Court at the hearing. An application for asylum was made by the applicant on the 20 ^th November 2010.

3 3. The applicant claimed to have a well founded fear of persecution in his home country on the basis of his membership of a particular social group, religion, race and political opinion. The applicant states that he had a relationship outside of marriage with a young woman who was a member of the Saidi tribe in Egypt. The applicant claims that her family would not allow her to marry outside of her tribe and that an uncle who became aware of their relationship hit him, threatened him and urged him to sever all ties with the girl. Despite this, their relationship continued and after some months together the young woman fell pregnant. The applicant claims that when her family became aware that she was pregnant they came looking for him at his home, however he was at sea at the time. On his return, he stayed away from his home but was told that his girlfriend's family was still searching for him.

4 4. The applicant claims that he moved to a friend's house but that his girlfriend's family became aware of his whereabouts and that he saw some people entering his apartment block searching for him on another occasion. He managed to avoid them but he states that he was later told that his girlfriend had been killed by her family in an 'honour killing' owing to her pregnancy outside marriage. The applicant claims that at this point he felt he had no option but to flee Egypt, which he did by cargo ship from Alexandria. The applicant also claims that his nephew was kidnapped by his girlfriend's family subsequent to his departure and that he is still missing. The applicant fears that if returned to Egypt he will be killed by his girlfriend's family in an 'honour killing', that nowhere in Egypt is safe for him and that state protection is not available to him.

Submissions:

5 5. The first complaint levied at the decision by counsel for the applicant Mr. Killian McMorrow B.L., is that the Tribunal Member made an error of fact in finding that the applicant does not possess a passport. In this regard, counsel refers to the affidavit of John Gerard Cullen, the applicant's solicitor, who makes the averment that the applicant possessed a valid maritime passport which was accepted in the context of the District Court proceedings against him. It is clear from the applicant's evidence that he believed that the Gardaí had possession of his passport at all material times in the asylum process. Counsel further submits that the adverse credibility finding of the Tribunal made pursuant the provisions of s. 11B(c) of the Refugee Act 1996 was ultra vires as a result of the findings in respect of his passport.

6 6. Counsel for the respondent Ms. Fiona O'Sullivan B.L., notes that the Tribunal Member did not find that 'the applicant does not possess a passport', rather the Tribunal Member held that "The applicant did not produce any documentation as proof of identity." It is submitted that not only did the applicant fail to produce any identification documentation throughout the course of the process, but also...