I.S. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 12 November 2015
• Neutral Citation: [2015] IEHC 859
• Docket Number: [2011 Rec. No. 1004 JR]
• Court: High Court
• Date: 12 November 2015

[2015] IEHC 859

THE HIGH COURT

JUDICIAL REVIEW

Faherty J.

[2011 Rec. No. 1004 JR]

BETWEEN

I. S.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL (ACTING AS PAUL CHIRSTOPHER), THE MINISTER FOR JUSTICE

AND

LAW REFORM,

IRELAND

AND

ATTORNEY GENERAL

RESPONDENTS

Asylum, Immigration & Nationality – Appeal against the decision of the Refugee Appeals Tribunal – The European Communities (Eligibility for Protection) Regulations, 2006 – Well founded fear of persecution – Assessment of country of origin information – Reasoned decision

Facts: The applicant sought leave and an order of certiorari in the present telescoped hearing for quashing the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicant not be declared a refugee. The applicant contended that the first named respondent had not provided reasons for assigning little weight to the documents produced by the applicant in support of establishing fear of persecution in the country of origin. The applicant also claimed that the first named respondent had erroneously made credibility findings against him when the credibility of the applicant was not an issue and that the first named respondent failed to assess the risk of persecution faced by the applicant from the Taliban while observing that the applicant could avail the benefit of internal relocation.

Ms. Justice Faherty granted an order of certiorari to the applicant and remitted the matter to a different member of the first named respondent for a de novo hearing. The Court held that reg. 5 of the European Communities (Eligibility for Protection) Regulations, 2006, required that the decision-maker should assess the relevant documents presented by the protection applicant for advancing his claim of serious harm or persecution. The Court found that while it was the discretion of the first name respondent to assign weight to the documentary evidence before it, the first named respondent erred in law by not providing reasons for rejecting the documents, which otherwise were crucial for the applicant's claim. The Court held that a decision-maker putting reliance on conflicting country of origin information was obliged to give reasons for choosing one piece of information over other, which the first named respondent failed to do so, in blatant ignorance of reports containing contradictory views on internal relocation in the country of origin. The Court criticized the first named respondent for invoking the principle enunciated in Folarin v. Minister for Justice [unreported, High Court, Peart J., 2nd May, 2008], in the absence of any credibility findings against the applicant in the present case.

JUDGMENT of Ms. Justice Faherty delivered on the 12th day of November 2015

1 This is a telescoped application in which the applicant seeks an order granting leave to apply for judicial review by way of certiorari to quash the decision reached by the first named respondent.

Background

2 The applicant states that he is an Afghan citizen and was born in Afghanistan and from Kunar province. He is a member of the Pashtun group within Afghanistan and is a Muslim. His first language is Pashto. He never attended school but trained to be a mechanic in his youth, starting at 14 or 15 years of age. He later owned his own shop and was self-employed there as a mechanic for four years between 2007 and 2010. He is a married man with no children.

3 The basis of the applicant's claim for asylum is said to arise in the following circumstances. He states that one day he was taken by people, who he came to realise were the Taliban, who brought him to a remote undisclosed location. The Taliban did not want to harm him physically but required him to repair motor vehicles in the Taliban's possession. The claimed circumstances of how he was taken and what was required of him by the Taliban were described by the applicant in the following terms:-

“I was working in my shop, they came into my shop and said our car has broken down. I went with them. After a long journey, I asked them where we were going, where is your car. When I started resistance, they caught me and blindfolded me and took me away…They said they wouldn't tell me anything but I to repair all these vehicles. I repaired for them some of the vehicles. One person was fixing bombs in the vehicles. They told me I have to help this man. I said I couldn't do this for you, they were forcing me, threatening they would do this and that to my family…I was kept there for 6 months, one day an oil tanker came into that area. I hid in that fuel tanker and I escaped from them. I came to Jalalabad then…In Jalalabad I met with the friends from whom I was buying the spare parts for the cars. They contacted with my uncle. They said these people were now looking for me…He [uncle] said they [government] got information from the neighbour's shops that the Taliban came and I [applicant] am working with the Taliban. The Taliban was also looking for me because I [applicant] escaped from them and my uncle told me that the neighbour shop people told the government people that I went with those people willingly so they presumed I am working with the Taliban…My uncle said it was not good for me to live there because my life was at risk…He [uncle] spoke to the agent and arranged something for me. He spoke to the agent and he told me I have to follow this agent, he will bring you to a safe place. Then I was following the agent. Then I left the country.”

4 The applicant departed Afghanistan on 7th January, 2011. His uncle paid the agent $7,500-$9,000 for his services. There were several agents involved in arranging the applicant's path from Afghanistan to Ireland. The applicant claimed to be unaware of any of the countries that he travelled through to get to Ireland as he travelled by night. Other people travelled with the applicant, and he did not know their names and addresses. The applicant's modes of transport are mentioned as being “ motor-vehicle, lorry, by foot and ship”. He arrived in this state on 14th March, 2011 and sought asylum.

5 The applicant bases his claim for asylum upon the belief that his “… life is at risk from the Taliban and as well as the Government of Afghanistan”. He did not report his capture by the Taliban to the authorities in Afghanistan. The reason as to why he did not do so is proffered as being “ I did not notify the Government of Afghanistan because I was working with the Taliban as a mechanic; I used to help them with placing bombs in motor-vehicles. And the Government of Afghanistan had found out about it.” He stated that he did not move from one area of Afghanistan to another to avoid his persecution. He claims that he did not do so “… because on the one hand my life was at risk from the Government of Afghanistan and on the other hand my life was at risk from the Taliban. Therefore, I did not change my place of residence and I left my country.” He claims that if he was to be returned to Afghanistan, “ then the Government of Afghanistan will arrest me accusing me [of] being a Talib and they will sentence me to death. And on the other hand the Taliban are also after me to kill me.”

Procedural history

6 The applicant's asylum application commenced on 14th March 2011 and he underwent a s.8 interview on that date. He completed a questionnaire on 23rd March 2011. His s. 11 interview was conducted on 27th April, 2011.

In the s. 13 report compiled on the applicant's claim for asylum, it is stated that:-

“The applicant's claim may be considered to constitute a severe violation of basic human rights and therefore may be considered as being of a persecutory nature and as such could satisfy the persecution element of the refugee definition.”

7 Under the ‘well-founded fear’ heading of the s. 13 report it is stated:-

“A report from the Refugee Documentation Centre (“Are there any reports specifically about Taliban activity and insurgency against government in the District of Marawara or generally throughout the Province of Kunar for 2009, 2010 and so far into 2011?” Appendix A) indicates that there is a significant level of Taliban activity in Kunar province. If the applicant's claim were to be accepted, he may have a well founded fear of persecution from the Taliban in his home district. However, this is without prejudice to the findings in paragraph 3.3.2. below.”

8 The report assessed the applicant's reluctance in contacting the Afghan authorities in the following terms: “ It is considered that it is reasonable for the authorities to want to question the applicant about his kidnapping and time with the Taliban and it is also considered that he has not provided sufficient evidence to indicate that he would be treated unfairly by the authorities if he co-operated with their investigation. The applicant has not established a well founded fear of persecution in relation to this aspect of this claim.”

9 Under the heading ‘State Protection’ the s. 13 report determined “ while the applicant claims to fear the authorities, it is considered that he had not provided sufficient evidence to indicate that he would be treated unfairly by the authorities if he co-operated with their investigation.

10 Regarding the applicant's fear of the Taliban, it was acknowledged that there was a significant level of Taliban activity in Kunar province and found that while country of origin information indicated that “ the Afghan and International forces are targeting the Taliban there, it is considered that state protection may not be available in this province.”

11 The s. 13 report went on to determine that “ the applicant could internally relocate and seek protection from the authorities in Kabul, which is under the control of the Afghan and International Security Forces” and “moderately...