I (A H ) (Sudan) v Refugee Appeals Tribunal and Others

JurisdictionIreland
JudgeMr. Justice McDermott
Judgment Date12 March 2013
Neutral Citation[2013] IEHC 245
CourtHigh Court
Date12 March 2013

[2013] IEHC 245

THE HIGH COURT

[103 J.R./2009]
I (A H ) (Sudan) v Refugee Appeals Tribunal & Ors
JUDICIAL REVIEW
IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED), AND
IN THE MATTER OF THE IMMIGRATION ACT 1999, AND
IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, AND
IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)

BETWEEN

A. H. I. (SUDAN)
APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND ATTORNEY GENERAL
RESPONDENTS

AND

HUMAN RIGHTS COMMISSION
NOTICE PARTY

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S11(B)

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

R (I) v REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

A (M A M) v REFUGEE APPEALS TRIBUNAL & ORS 2011 2 IR 729 2011/1/160 2011 IEHC 147

REFUGEE ACT 1996 S16(6)

Immigration - Asylum seekers – Decision of Refugee Appeals Tribunal - Application for leave to apply for Judicial Review – Racial persecution

Facts: The hearing concerned an application for leave to apply for judicial review to quash an order of the Refugee Appeals Tribunal which refused asylum.

McDermott J held that the applicant had established that there was a possible risk of future persecution upon repatriation to Sudan and that the Tribunal in rejecting the applicant”s credibility, as a result had failed to consider the risk of prospective persecution the applicant may suffer and had therefore erred in law.

The case was remitted to the Tribunal with the court”s recommendation that the same Tribunal member, consider adopting a supplementary decision which would remedy the previous omission without reopening the oral hearing, A. (MAM) v. Refugee Appeals Tribunal and Others [2011] IEHC 147 considered and followed.

1

1. This is an application for leave to apply for judicial review by way of certiorari, mandamus and declaratory relief in respect of an order of the Refugee Appeals Tribunal (the first named respondent) which was notified to the applicant on or about 13 th December, 2008. In effect, the relief sought in this case relates to an order of certiorari quashing the first named respondents' decision as the other reliefs add nothing to the applicant's case.

Extension of Time - Ground 18
2

2. The notice of motion initiating these proceedings was filed on 30 th January, 2009. The applicant was informed by letter dated 10 th December, 2008, of the decision made by the first named respondent. The applicant's then solicitors sought in correspondence with the Tribunal to have the decision withdrawn. This correspondence did not result in any change to the decision made. By letter dated 15 th January, 2009, the applicant was informed by the Refugee Legal Service that the Tribunal had refused to withdraw its decision and advised to seek the services of a private lawyer. He then contacted his present solicitors who sought his file. The file was received by his solicitors on 26 th January, 2009, and a brief was prepared for counsel. An affidavit was sworn by the applicant on 29 th January, 2009, and the notice of motion was issued on 30 th January.

3

3. In the circumstances of this case, as deposed to on affidavit, the court is satisfied to extend the time for the initiation of these proceedings in the interests of justice as it is satisfied that there is good and sufficient reason to do so in accordance with s. 5 of the Illegal Immigrants (Trafficking) Act 2000. The court is satisfied having regard to the very short time available and the importance of affording the applicant a fair and reasonable opportunity of access to the courts to seek vindication of his constitutional right to fair procedures that the time should be extended for the bringing of this application.

Background
4

4. The applicant claims to be from the Darfur region of Sudan. He claims that he was born on 1 st March, 1981, at Shagra village where he lived all his life. He was of the Marareet tribe and claims that the Sudanese government and the Janjaweed militias routinely kill members of his tribe on account of their ethnicity. He states that a campaign of genocide had been conducted over a number of years in Darfur. In 2003 he fled to Greece. From there he was deported to Libya where he was imprisoned before being taken to the border and told that if he entered Libya again he would be shot. He returned to his home in Shagra. On 29 th October, 2004, he claims that the Janjaweed militia attacked Shagra. He believed that his entire family was lost in that attack and he was captured and detained for over three weeks during which time he was tortured. He fled again and made it as far as France. He applied for asylum there but on learning that he might be sent to Greece, he fled. He then arrived in Ireland on 25 th February, 2005, and applied for asylum.

Questionnaire
5

5. In the course of that application he completed a questionnaire. He stated that he had benefited from six years of primary school education between 1988 and 1994, and then worked as a farmer from 1994 until 2003, on a private farm in the Shagra Tawella area. He stated that his father was deceased and he had lived in Shagra with his mother, younger brother and sister. He had no documents to submit as part of his application as his house had been burnt in a Janjaweed attack. At question 21, when asked why he left his country of origin he replied that it was because of racial persecution. He said:-

"Al Janjaweed militias with the government forces burned our village and took my family and they arrested me. I was badly tortured until the Tawella City was occupied by the Justice and Equality Movement army, so I escaped from the prison guards and got out from prison and I went to Sudan Port and from there I travelled to Ireland."

He claimed that he was detained from 29 th October, 2004, until 22 nd November in Tawella. He said that his family were also detained on the same day but he knew nothing of their whereabouts. He said that he left Sudan on 3 rd February, 2005, and paid a smuggler in Sudan US$2,500 to assist him out of the country. He travelled to Ireland via France where he landed for 40 minutes in transit on 23 rd February. He denied applying for refugee status anywhere else.

Section 11 Interview
6

6. A s. 11 interview was also carried out under the Refugee Act 1996. In the course of that interview the applicant volunteered that he had been in Greece in 2003. He said that when he reached Greece the police arrested him with six other people who were Arabs. They placed him in a camp for three months. The six people said that they were Libyan and the Greek authorities returned all of them to Libya, notwithstanding the fact that he stated he was from the Sudan. In Libya he was imprisoned and after two further days he was taken to the border with Sudan with a group of about 40. He was told to return to Sudan and that he would be shot if he returned to Libya. He returned to his village. He also said that in 2004 he applied for asylum in France but was informed that he would be returned to Greece as he had applied for asylum there first. He then left and came to Ireland. Though he had applied for asylum in Greece and France, he did not obtain any decision.

7

7. He claimed that he was imprisoned in Al Tawella and tortured. He claimed as follows:-

"They tied my hands and feet and hanged me on a stick and began to torture me. After that they began to beat me and this type of torturing, Al Taira Kamet, they call it the plane begin to fly as I was tied like a plane with my arms spread out. I met many people in the prison and they were all tortured and we did not do anything, they also told me they would take us to Al Fashar Prison, it is called Shalla Prison. Before they took me I managed to run away."

8

8. On the 9 th December, 2005, the applicant made an attempt on his life by jumping into the River Liffey and was taken to the accident and emergency unit of the Mater Hospital where he was detained for a number of days. He was clearly a very distressed and traumatised person.

9

9. By letter dated 5 th September, 2007, the applicant was informed that the Refugee Applications Commissioner had recommended that he not be declared a refugee and a copy of the s. 13 report was enclosed.

10

10. The applicant appealed this decision to the Refugee Appeals Tribunal by notice of appeal on 25 th September, 2007.

The SPIRASI Report
11

11. This appeal was supported by country of origin documentation and a report from the Centre for the Care of Survivors of Torture (SPIRASI) of Dr. Jaseem Siddiqui, dated 17 th November, 2007, which had been prepared following a two hour consultation with the applicant on 22 nd October. The report sets out a history furnished by the applicant stating how his village was attacked on 29 th October, 2004, by the Janjaweed militia and was burnt down. He was arrested and saw his brother, sister and mother being taken away. He claimed to have been imprisoned. He became upset while describing his prison experiences and as a consequence "he felt that he could not describe them in detail". In the course of a physical examination the following abnormalities were noted:-

i "(i) He had a mark from a cut on his left wrist, which was of traumatic origin.

(ii) He had a mark from a cut near the small toe of his left foot, also consistent with trauma.

The rest of the physical examination was unremarkable."

His mental state was also assessed and the report states:-

"Mr. I. presented as a young man who was extremely distressed and oppressed. He found it difficult to talk about his experiences. He broke down...

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