I.H. (Afghanistan) v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Ms. Justice Stewart
• Judgment Date: 12 January 2016
• Neutral Citation: [2016] IEHC 14
• Docket Number: [2011 No. 916 J.R.]
• Court: High Court
• Date: 12 January 2016

[2016] IEHC 14

THE HIGH COURT

JUDICIAL REVIEW

Stewart J.

[2011 No. 916 J.R.]

BETWEEN

I.H. (AFGHANISTAN)

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL AND THE

MINISTER FOR JUSTICE AND EQUALIY

RESPONDENTS

Asylum, Immigration & Nationality – The Refugee Act 1996 – Appeal against the decision of the Refugee Appeals Tribunal – certiorari – Whether evidence of applicant credible – Article 1F of the 1951 Convention relating to the Status of Refugees – Whether membership of terrorist organisation was enough to refuse asylum

Facts: The applicant sought leave for judicial review and 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 admittedly was a member of a terrorist organisation albeit as a medical doctor, the exclusion principle enunciated under article 1F of the 1951 Convention relating to the Status of Refugees applied to him and thus, he could not claim asylum contrary to the principles of the United Nations.

Ms. Justice Stewart granted leave and an order of certiorari in the present telescoped hearing and quashed the decision of the first named respondent, and remitted the matter for a de novo hearing by a different member. The Court held that any finding in relation to the application of said art. 1F was an individual finding and such a finding should be made only when there was concrete evidence corroborating the participation of that individual in atrocious crimes. The Court observed that mere membership of a terrorist organisation was not sufficient to conclude the degree of involvement of a person in war crimes or crimes against humanity. The Court found that the decision-maker must give reasons for its reliance on one set of facts and rejection of others, which was missing in the present case. The Court found that the imposition of said art. 1F without clearly determining the specific role of the applicant in the alleged organisation was a procedural error.

JUDGMENT of Ms. Justice Stewart delivered on the 12th day of January, 2016

1 This is telescoped hearing for judicial review seeking certiorari to quash a decision of the Refugee Appeals Tribunal not to grant the applicant a declaration of refugee status, dated 25th July, 2011, with an addendum dated 16th August, 2011, which was notified to the applicant by letter dated 24th August, 2011, and remitting the appeal of the applicant for de novo consideration.

Extension of time

2 The applicant was outside the fourteen-day period to bring statutory judicial review proceedings. The applicant's then solicitor swore an affidavit explaining the reasons for the delay. I accept the explanation provided therein and I am satisfied to extend the time within which to bring this application.

Background

3 The applicant was born on 12th February, 1980, in Nangarhar province, Afghanistan. His family moved to Pakistan in 1982, due to the Soviet invasion, and returned to Afghanistan in 1992. He has three children and was married. His wife died as the result of a road traffic accident on 17th August, 2012. The following is the applicant's account of the events that gave rise to the alleged persecution, which gave rise to his claiming international protection in Ireland.

4 The applicant is the son of a well-known military commander in the Hizb-e-Islami party, who is now deceased. He graduated as a medical doctor in 2005 and established a private clinic, where his wife also worked as a nurse. His father was operating from Kunar province and invited the applicant to come and provide treatment to the sick and wounded Hizb-e-Islami and Taliban fighters, particularly since he had given similar assistance whilst attending university. The applicant then went to the frontline to work as a medical doctor from July 2005.

5 In March 2006, he and forty-two Hizb-e-Islami fighters were captured as a result of a joint attack by the NATO-led International Security Assistance Force (ISAF) and Afghan government forces. He was imprisoned in Jalalabad military prison for an eleven-month period, during which he states, he was subjected to torture. He escaped prison on 23rd February, 2007, after his maternal uncle paid a prison officer a sum of US$2,000. He then went into hiding for seven months, during which time his maternal uncle arranged for the applicant to be smuggled out of the country in exchange for US$12,000. The applicant left Afghanistan on 20th September, 2007, travelling through Pakistan, Turkey, Greece, Italy and France. The applicant stated that he stayed one to one-and-a-half months in Greece, fifteen to twenty days in Italy and ten to twelve days in France. He arrived in Ireland on 28th February, 2008, and applied for asylum on 3rd March, 2008.

6 The applicant completed the initial ASY1 form on 4th March, 2008, and the substantive questionnaire 10th March, 2008. The applicant attended the Offices of the Refugee Applications Commissioner (ORAC) on 7th July, 2008, for an interview pursuant to s.11 of the Refugee Act, 1996 (as amended). The interview was conducted in Pashto. The applicant submitted the following documentation at that stage:-

1) An education certificate for twelve years from the chief of education of Nengarhar province;

2) An education certificate from Chaprihar district showing twelve years completed;

3) Certificate of participation from Fredrich Naumann Stiftung;

4) Kabul medical university certificate awarding MD;

5) Invitation letter from Hizb-e-Islami asking the applicant to work with the party;

6) Letter from applicant's father to the applicant asking him to return to work with Hizb-e-Islami;

7) Letter issued from chief officer of the police seeking the arrest of the applicant;

8) Letter from chief of police to the imam of the applicant's village, seeking the applicant;

9) Arrest letter from district official dated 29/12/1385;

10) Arrest letter from district official dated 10/5/1386;

11) Pictures of the applicant at graduation and a picture of his wife and two sons;

12) An initial medical report related to the applicant; and

13) Six medical reports from University College Dublin and one from the Mater hospital.

Further documents were submitted at later stages by the applicant, inter alia:-

14) A prescription pad with the applicant's name;

15) Letters from three doctors in Ireland, attesting to the applicant's character and status as a medical doctor;

16) A letter from the applicant's volunteer manager in the Irish Red Cross;

17) Nine certificate attesting to the applicant's continuing education through online courses;

18) Medical reports from Ireland; and

19) A yearbook from his medical faculty at university.

A further interview was held in relation to the applicant's claim on 16th September, 2008. The decision resulting from these interviews was quashed on judicial review and a further interview was held in respect of the applicant's asylum application on 25th February, 2010. The interview was reconvened and completed on 8th March, 2010.

7 By cover letter dated 4th June, 2010, the ORAC issued a negative decision in respect of the applicant's claim for a grant of refugee status. A form one, notice of appeal was issued to the Refugee Appeals Tribunal (RAT) on 23rd June, 2010. The oral hearing in respect of the applicant's appeal was adjourned to allow for the applicant to receive, submit and translate documents from Afghanistan. The hearing was postponed thereafter to allow the applicant to register with the Irish Medical Council. The oral hearing was then scheduled for 19th July, 2011, as the applicant was unable to complete the registration process with the Irish Medical Council.

The impugned decision

8 By cover letter dated 24th August, 2011, and decision dated 25th July, 2011, the tribunal affirmed the negative recommendation of the ORAC, not to declare the applicant a refugee. The applicant submitted an additional document shortly after 25th July, 2011, stated as being evidence of registration with the Afghan Ministry of Health. The tribunal member did not publish the decision, on request of the applicant's solicitor until said document was furnished for consideration. An addendum was added and signed 16th August, 2011, by the tribunal member.

9 The reasons for the rejection of the applicant's claim are set out at p.460 of the booklet exhibited before the court, under the heading...