A.I.M.Z. v Refugee Applications Commission and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Clark
• Judgment Date: 07 November 2008
• Neutral Citation: [2008] IEHC 420
• Court: High Court
• Date: 07 November 2008

Z (A I M) v Refugee Applications Commission

JUDICIAL REVIEW

IN THE MATTER OF SECTION 5(2) (a) OF THE ILLEGAL IMMIGRANTS

(TRAFFICKING) ACT, 2000

AND

IN THE MATTER OF SECTION 5(1) OF THE EUROPEAN CONVENTION

ON HUMAN RIGHTS ACT, 2003

BETWEEN

A.I.M.Z.

APPLICANT

AND

THE REFUGEE APPLICATIONS COMMISSION AND THE OFFICE OF THE REFUGEE APPEALS TRIBUNAL AND IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

[2008] IEHC 420

[No. 924 J.R./2006]

THE HIGH COURT

IMMIGRATION

Asylum

Judicial review - Leave - Credibility - Adverse findings of credibility - Illiteracy of applicant - Alleged failure to properly consider documentation - Contradictions in evidence - Whether process flawed by fundamental error of fact or natural justice - Whether substantial grounds established - Decision viewed as a whole - Burden of proof - Whether decision made in accordance with legal principles and fair procedures - GT v Minister for Justice [2007] IEHC 287, (Unrep, Peart J, 27/7/2007) followed; VZ v Minister for Justice [2002] 2 I.R. 135 and JBR v Refugee Appeals Tribunal [2007] IEHC 288, (Unrep, Peart J, 31/7/2007) considered - Refugee Act 1996 (No 17), s 11A (3) - Leave refused (2006/924JR - Clark J - 7/11/2008) [2008] IEHC 420

Z(AIM) v Refugee Applications Commissioner

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(a)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

T (G) v MIN FOR JUSTICE UNREP PEART 27.7.2007 2007/57/12325 2007 IEHC 287

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 196

REFUGEE ACT 1996 S11A(3)

IMMIGRATION ACT 2003 S7

Z v MIN JUSTICE 2002 2 IR 135 2002 2 ILRM 215

R (JB) v REFUGEE APPEALS TRIBUNAL (DOURADO) UNREP PEART 31.7.2007 2007/52/11193 2007 IEHC 288

FRASER & HARVEY SANCTUARY IN IRELAND PERSPECTIVES ON ASYLUM LAW & POLICY DUBLIN 2003 109

SMYTH REFUGEE STATUS DETERMINATION OF SEPARATED CHILDREN: INTERNATIONAL DEVELOPMENTS & THE IRISH RESPONSE PART I THE REFUGEE DEFINITION 2005 IJFL 15

1 Ms. Justice Clark delivered on the 7th day of November, 2008.

2 1. The applicant, A.Z., seeks leave to judicially review by way of certiorari the decision of the Refugee Appeals Tribunal ("the RAT") dated the 29 ^th June, 2006, and received between the 3 ^rd and 5 ^th July, 2006. The original case against the Office of the Refugee Applications Commissioner ("the ORAC") was not pursued.

3 2. The main thrust of the legal arguments advanced by counsel on behalf of the applicant is that:-

4 (i) In upholding the decision of the ORAC not to recommend that refugee status be awarded to the applicant, the R.A.T. failed to consider a document, which, if accepted as true could confirm the applicant's membership of the Komala party, whose members are persecuted.

5 (ii) That insufficient regard was paid to the applicant's illiteracy when viewing discrepancies in his evidence relating to the contents of a document produced by him and relied upon in his application, which led to adverse findings of credibility.

The background facts

6 3. The applicant relies on the following assertions: - he was born in 1983 and is of Kurdish/Iranian origin, he lived all his life with his mother in a small Kurdish village close to the border with Iraq. His occupation there was a farm worker and the village in which he lived consists of approximately twenty houses and about two hundred inhabitants. The inhabitants are generally agricultural workers, traders or informers. Most of the villagers are illiterate as is the applicant. In mid 2004 he was introduced by S., another villager, to the Komala or Communist Party of Iran. His role in the party was that of a supporter reporting to his friend S. who, though not educated, had some reading ability. The applicant's function was to receive leaflets which he would then nail on to the walls of the village at night. He also received and stored party newsletters. The disadvantage of common illiteracy was cured by the reading ability of the few who could translate for the others.

7 4. One day in mid 2005, soldiers came and surrounded the village while he was on his way to work on the farm. He feared for his life when he realised that Komala literature could be found in his house so when he saw the soldiers coming, he took refuge in a nearby village. Here, he contacted his uncle who told him that literature had been found in his room and that Sangar had been arrested.

8 5. The applicant said that many opponents of the regime are arrested, tortured and killed in Iran. His uncle, who was of means, advised him to leave Iran and arranged for him to travel overland through Turkey. He eventually arrived in Ireland by land and sea without documents. He sought asylum at the Office of the Refugee Applications Commissioner on the 12 ^th July, 2005.

Findings before the ORAC

9 6. Aspects of this narrative were found not credible by the Refugee Applications Commissioner, who in particular found that the applicant's profile did not tally with reports of those at risk of persecution in Iran, such as Kurdish Democratic Party/Komala leaders, militant activists or high profile dissidents described in reports from Amnesty International, the British Home Office and the UNHCR This information confirmed that the regime in Iran deals ruthlessly with Communist Party of Iran/Komala leaders and its militant supporters but the Commissioner found that the applicant had never reached the level of notoriety as those described in the reports which would put him at risk of persecution. The claim that he posted party literature on the walls of his village was found to be neither coherent nor plausible and the ORAC interviewer had difficulty with the concept of an illiterate person posting propaganda for other non readers in a village where the person disseminating such literature could be identified. In addition, his travel arrangements were found not plausible and it was doubted that Ireland was the first safe country he reached.

Appeal to the Refugee Appeals Tribunal

10 7. The applicant appealed this decision to the Refugee Appeals Tribunal. He was represented by counsel, instructed by the Refugee Legal Services. It was clear that some of the same credibility issues arose before the Tribunal as the applicant was asked by the Tribunal member why he took the risk of putting up posters when he knew that there were informers in the village. He replied that before he was made aware of the situation, he was ignorant and backward, that many villagers were also kept in the dark and that he wanted others to learn what he had learned. When asked how illiterate persons could understand the information on the leaflets which he himself could not read, he replied that the leaflets were designed in such a way that readers would be able to recognise the party logo, and educated people could explain to others so that they all were aware of and discussed the information therein.

11 8. At the appeal, the applicant presented three documents which purported to support his case that he was a member of Komala and thus subject to persecution-:

12 (i) A very lengthy leaflet which the applicant said was typical of Komala leaflets posted in the village. This leaflet was said to have been distributed by Komala in his village and had been sent to a friend in the refugee hostel by his uncle in Iran.

13 (ii) A photograph of the charred remains of a person who the applicant said was his uncle who had helped him. He said that his family had sent him the photograph and that his uncle was shot at because he passed through a checkpoint without stopping as he was afraid the authorities may have found out that he had helped the applicant. When he was shot at, his car overturned and caught fire. There was writing on the back of the photograph which was translated to say that the medical report on the body established that the person had been shot. The photograph of the victim had a piece of white paper over the name on the hospital gown so that the victim's name was concealed.

14 i (iii)A letter stated to be from the Swedish representative of the Komala party-:

"Representation of Komala Abroad No. 1180, date 10/03/06,

To whom it may concern

We hereby certify that Mr. Amir Mohamad Zada was born in 25/06/83 in Sardashi (Kurdistan, Iran) has been politically active against the Islamic Republic regime of Iran.

Amir was an active militant of the revolutionary movement of the Kurdish people in Iran. He has supported actively Komala and more specification has been an active sympathiser in propaganda the party's programme among the Kurdish people in his home town.

His activities were exposed to the regime and his life was in danger. He escaped the persecution danger of his life.

He is now in your country as a person seeking political asylum. We hope you will help him to get the status of political refugee.

Yours sincerely,

Representative of Komala Abroad

Signed: S. Ileidari"

15 The letter has a P.O. Box number and postal code for Norsborg in Sweden and also has a fax number.

16 9. The applicant was questioned about the three documents furnished. It was explained that the Komala leaflet needed to be translated twice as the first translation was not accurate as it had not named him. It was said that the document described the incident which took place when the soldiers searched the village. The original translation stated:-

"Thus on the 20/06/2005, the equivalent of the solar dated the 30 ^th quadrant 1384, the regular forces of the army, with the co-operation of the institution of terrorism Iranian secret services in the village of Dolamei in the region of Darmanawa have detained the comrade Sanger Ali, who is within the folds of our Komala, while carrying some party literature which included leaflets,...