Y (I A) v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: MS. JUSTICE CLARK,
• Judgment Date: 18 March 2009
• Neutral Citation: [2009] IEHC 127
• Court: High Court
• Date: 18 March 2009

[2009] IEHC 127

THE HIGH COURT

[No. 1177 J.R./2007

Y (I A) v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

BETWEEN

I. A. Y.

APPLICANT

AND

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

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11B(C)

REFUGEE ACT 1996 S11B(B)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

OKEKE v MIN FOR JUSTICE & ORS UNREP PEART 17.2.2006 2006/46/9892 2006 IEHC 46

E (M) v REFUGEE APPEALS TRIBUNAL & ORS UNREP BIRMINGHAM 27.6.2008 2008 IEHC 192

KHAZADI v MIN FOR JUSTICE UNREP GILLIGAN 19.4.2007 (EX TEMPORE)

S (DVT) v MIN FOR JUSTICE & ORS UNREP EDWARDS 4.7.2007 2007/54/11621 2007 IEHC 305

IMMIGRATION

Asylum

Judicial review - Leave - Negative credibility findings - Knowledge of geography of alleged homeland - Claim of flawed assessment of credibility - Claim of inadequate consideration of medical evidence of applicant - Claim that respondent engaged in impermissible speculation and conjecture - Substantial grounds - Whether substantial grounds -Whether Tribunal member gave inadequate consideration to medical evidence of applicant - Whether assessment of applicant's credibility flawed - Okeke v Minister for Justice [2006] IEHC 46 (Unrep, Peart J, 17/2/2006) and ME v Refugee Appeals Tribunal [2008] IEHC 192 (Unrep, Birmingham J, 27/6/2008) applied - Refugee Act 1996 (No 17) ss 11, 13 - Leave refused (2007/1177JR - Clark J - 18/3/2009) [2009] IEHC 127

Y (IA) v Refugee Appeals Tribunal

1 JUDGMENT OF MS. JUSTICE CLARK, delivered on the 18th day of March, 2009.

2 1. The applicant is seeking leave to apply for judicial review of the decision of the Refugee Appeals Tribunal (RAT) dated the 29 ^th August, 2007, to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that he should not be granted a declaration of refugee status. Mr. Mark de Blacam S.C. and Ms. Maureen Cronin B.L. appeared for the applicant and Ms. Siobhan Stack B.L. appeared for the respondents. The hearing took place at the Kings Inns, Court No. 1, on the 24 ^th February, 2009.

Factual Background

3 2. The applicant's claim is that he is of the Bergud tribe and a national of Sudan. He was born in 1982 and lived all his life in the city of Nyala in South Darfur state, in western Sudan. After four years of education he started helping his mother on their farm. He says he left Sudan as a result of the following events: in July, 2006, he made a journey in a truck from Nyala to Al Fashir to deliver farm produce. He was returning on the road on the 28 ^th July, 2006, when he found that two villages had been bombed by the Sudanese army and Janjaweed militia and the fleeing inhabitants were on the road seeking refuge in a camp. He undertook to escort roughly sixty villagers to Tawila IDP (internally displaced persons) camp. En route, Janjaweed militia stopped his lorry, searched it, forced the villagers to get out, took his documentation (driving licence, naturalisation certificate and ID), beat him rendering him unconscious and took him to a Janjaweed camp where he was kept tied up and again beaten, interrogated and tortured. The Janjaweed accused him of helping people to escape to IDP camps, of stealing army uniforms and giving them to the opposition and of joining the opposition.

4 3. After ten days the Janjaweed camp moved and he was taken to a new location where he was kept under guard and had to wash uniforms. Ten days later he managed to escape when the camp was attacked. He ran to a village where he was given food and clothes and was then guided to his uncle's house in Goz village. His uncle told him it was not safe to remain in Sudan as the Janjaweed had his documentation. The uncle then paid 4.6 million Sudanese pounds to an agent who, on the 20 ^th August, 2006, took the applicant by car to Libya. The journey took four days. The applicant hid at a farm in Libya for ten days and on the 3 ^rd September, 2006, was taken to a ship. He changed to another ship at sea and then hid in a truck. After arriving at an unidentified port in Ireland on the 20 ^th September, 2006, the truck in which the applicant was hiding moved but after a while it stopped and dropped the applicant off. He met a black man who spoke Arabic and who brought him to the ORAC offices.

Procedural Background

5 4. The applicant applied for asylum the day after his arrival in the State, claiming to fear persecution on the ground of his race. In his questionnaire he said he was afraid of being tortured and killed by the security forces or Janjaweed militia. He submitted no identity documents and at his s. 11 interview explained his ID was taken by the Janjaweed and army when he was caught. He was questioned on the facts asserted in his questionnaire and when asked to estimate the length and distance between Nyala and Al Fashir, he said his car was not new and the roads were not good so sometimes he left at 9pm and arrived at 7am the next morning but it depended on the car and the speed and most of the drivers stop at Kafod en route to take a rest, to fix a puncture or to get food. He was asked various questions about where on the route he was at the time of the attack on the 28 ^th July, 2006 and gave unclear answers. When asked how far it was from the point he picked up the villagers to the IDP camp he said he did not know and could not be certain as the streets were not good and anything might happen; he did not know the distance in kilometres and had not done the journey to Tawila before.

6 5. A report was complied in compliance with s. 13(1) of the Refugee Act 1996 in which a negative recommendation was made. The ORAC officer found a number of credibility issues regarding his testimony and found him "vague and evasive" in response to questions about his alleged ordeal. She noted:-

7 • - He said he travelled from Nyala to Al Fashir two or three times monthly but could not give any indication of distances or length of time between the two;

8 • - He could not give a precise date as to when he left Nyala but was positive he was arrested on the 28 ^th - this suggests he knew about the attacks on the villages on the 28 ^th, which are well documented on the internet. He was "extremely vague" when otherwise recording dates - this casts doubts as to whether he was in the area at the time;

9 • - His account of his alleged capture was implausible as it was not credible that the Janjaweed would justify themselves to the villagers, engage in conversation with them or leave them unharmed; and

10 • - His testimony as to his escape also cast doubts on his credibility.

11 6. The ORAC officer accepted that the applicant may be a member of the Bergud tribe from Nyala that most attacks are on outlying villages. She said this suggests the applicant "may have been relatively safe living in the city" and she found that his account of his alleged persecution was not credible.

The RAT Stage

12 7. A Form 1 Notice of Appeal was submitted on behalf of the applicant in January, 2007 to which was country of origin information (COI) was attached. Limited generic grounds of appeal were set out in the Form 1 but more detailed submissions and further COI followed in April, 2007. It was here submitted that because the applicant made the trip from Nyala to El Fasher two or three times monthly, dates would not stand out; that he had a problem with the interpreter at the s. 11 interview; and that he had said at interview that he did not know what happened to the villagers when the Janjaweed took him and did not know if they were harmed. Additional COI was again furnished in May, 2007.

13 8. A medical report from the applicant's current G.P. dated June, 2006 was also furnished to the Tribunal. The report records the applicant's account of events - including his claim that he was beaten with sticks and rifle butts - and states that he has recovered from his injuries and has no symptoms at present apart from the scars of his old injuries. It recorded a number of scars including a 5cm x 3cm "old scar" on his left shin which "could be from avulsion to the skin due to a blow from a rifle butt as alleged"; a Y-shaped "old scar" on his forehead which "could be a wound caused by a rifle butt"; small scars on the back of his hand "sustained when defending himself when he was assaulted with sticks"; and several smaller scars on both wrists "which he claims to have sustained when he was kept tied up". The report concluded that the applicant has old scars that are "consistent with" the injuries he claimed to have sustained but that he has no residual disability and is now in good health.

14 9. An oral appeal hearing took place on the 14 ^th June, 2007 at which the applicant was legally represented. No attendance note of the hearing is before the Court and the applicant's grounding affidavit does not contain a description of what occurred at the hearing. The Court is therefore reliant on the summary contained in the RAT decision which does not purport to be fully comprehensive. According to that summary, the Presenting Officer questioned the applicant about the attack on the Janjaweed camp that allowed him to escape, the events of 28 ^th July, 2006 when he said he was taking agricultural products from his farm to the market and how long it took to travel the road. He said that it took thirteen hours each way between Nyala and E1 Fashir. He described his travel arrangements to Ireland as being first in a small boat and then in a large ship for a number of days before being transferred to another ship at sea and then arriving in Ireland. He thought he spent not more than seventeen days on the ship but could not fully remember. He explained...