J.B.R v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 31 July 2007
• Neutral Citation: [2007] IEHC 288
• Court: High Court
• Date: 31 July 2007

[2007] IEHC 288

THE HIGH COURT

Record Number: No. 51 JR/2006

R (JB) v Refugee Appeals Tribunal (Dourado)

Between:

J.B.R.

Applicant

And

Ricardo Dourado acting as the Refugee Appeals Tribunal

Respondent

And

The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General

Notice Parties

REFUGEE ACT 1996 S16

REFUGEE ACT 1996 S16(16)(a)

REFUGEE ACT 1996 S11

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL (HURLEY) & MIN FOR JUSTICE UNREP PEART 9.7.2004 2005/15/3102 2004 IEHC 436

REFUGEE ACT 1996 S11A(3)

IMMIGRATION

Asylum

Application for refugee status - Assessment of credibility - Basis for credibility findings - Whether reasonable - Demeanour of applicant - Whether substantial grounds for granting of leave to seek judicial review - Application for leave to seek judicial review - Leave refused (2006/51JR - Peart J - 31/7/2007) [2007] IEHC 288

R v Refugee Appeals Tribunal

The applicant, a Burundian national, applied for asylum fearing adverse treatment on the ground of race

and political opinion. The applicant sought leave to appeal against the refusal of the asylum application

where the respondent had made adverse credibility findings against the applicant on the basis that they were

factually incorrect.

Held by Peart J. in refusing leave, that the substantial grounds hurdle had not been reached by the applicant.

Substantial errors on the part of the respondent had not been made out.

Reporter: E.F.

1 Mr Justice Michael Peart delivered on the 31st day of July 2007:

2 This Burundian national arrived in this country on the 17th December 2003 when he was then almost 23 years of age, having left Burundi one week previously, and applied for asylum here on the basis of race and political opinion.

3 He has stated that he is of the Hutu race and that his father was killed by Burundian soldiers, and that he and his mother were forced to flee. He did not mention any siblings in his ASY 1 form, but it appears from a letter dated 29th December 2003 which the applicant wrote to the Minister that he has "brothers and sisters" who disappeared while fleeing Burundi and that he does not know what has become of them. However in his interview he clarified that he had one brother and sister. His siblings assume some relevance in relation to the adverse credibility finding made by the respondent in his decision.

4 Part of the applicant's story is that shortly after he was born in 1982 the family fled from Burundi to Rwanda in 1983. He says that from 1983 he, his parents and his brother and sister lived in Kigali in Rwanda until they all fled to Tanzania in 1994. During these years his father worked as a teacher in Kigali at the same school which he himself was attending.

5 He explained that they had fled Kigali in order to escape the Hutu/Tutsi genocide in 1994. He said that it was very difficult to escape to that stage but in spite of road-blocks they managed to do so, since his father was able to pay some money to a soldier who put them into a military truck which headed east to the border with Tanzania, and that the soldier was able to explain to the Rwandan soldiers at the border that this family were Burundian refugees who wanted to go back to Burundi via Tanzania. His father apparently had enough money with him to do all this as well as stay in a hotel in Tanzania for a few days before they continued their journey to Dar-es-Salaam. When they reached that city they rented accommodation and remained there until 1999 when they returned to Burundi. He did not attend school during the years in Dar-es-Salaam, but his parents taught him at home.

6 He was asked at his interview why they had returned to Burundi in 1999 and at first he said that he did not know why his father "decided to go back", but then went on to say:

"At that particular time there was [sic] arbitrary arrests of Burundian refugees by the Tanzanian police and also we were having a very bad life. Also at the time in Burundi, political parties were allowed to work openly and were taking part in the national government so my father decided to go back".

7 At interview he was asked whether they returned to Burundi with the assistance of UNHCR or any other NGO group or whether the family returned on their own, to which he replied "we went back on our own". At a later point of his interview, when asked to explain why in December 2003 he his mother had not remained in Tanzania since he and his family had previously lived for a number of years, as already set forth, the applicant stated:

"Because when we left Tanzania 1998/1999 to return to Burundi, we were forced toleave because my father had problems with the authorities in Tanzania because he was a Burundian refugee and all Burundian refugees were forcibly repatriated. But in our case my father decided to go back of his own accord." (my emphasis)

8 He explained in this regard that his father had been arrested on several occasions in Dar-es-Salaam because he was a refugee and had no passport or other documents to live in Tanzania.

9 The voluntariness or otherwise of the family's return to Burundi from Tanzania in 1999 assumes some relevance later in relation to the adverse credibility finding by the respondent. Relevant to that issue is also that at interview the applicant was asked in this context about the contents of a letter which he had sent to the Minister shortly after his arrival here and to which I have referred. He was further questioned in this regard during his interview, and asked to explain why at interview he had stated that his father had decided to go back " of his own accord" yet in the letter to the Minister he had stated "we were sent back to Burundi along with all the Burundian refugees".

10 In answer the applicant stated that "most of the Burundian refugees were forced to return to Burundi", and that in that regard he was referring to "all Burundian refugees, mostly those who had been living in Tanzania for a short time and those who had been living in Tanzania for a long time but did not have permission to remain" and that " those Burundians who had no visa or any documents allowing them to stay were forced to return to Burundi". He went on as follows:

"Before being repatriated, Burundians were being arrested and jailed. Anybody could go home voluntarily and would be given a paper to allow them pass through the border. Those who did not wish to return voluntarily were put into trucks that were driven to the border. If handed over to the Burundian authorities they would have been put into refugee camps inside Burundi at the border between Burundi and Tanzania called "Kobero". The HCR were responsible for those camps. Those who wanted to return voluntarily could do so without going through the HCR refugee camps."

The injuries:

11 It appears according to his account of events at interview that after two weeks back in Burundi in 1999 he was beaten up by the Burundian military (4 Tutsi soldiers) and that as a result he sustained injuries which required him to be hospitalised until some time in 2002. These injuries were to his back and his left leg. When asked why he had been beaten he stated that he was riding his bicycle in Bujumbura and was stopped by the military and asked if he was "the son of Ribanje who had returned from Tanzania", and when he said that he was, he was then beaten unconscious and woke up in hospital. Upon waking he said that he had bandages around his head, his lower back, his left wrist and right elbow.

12 When he described the incident at interview he stated that the four Tutsi soldiers used the butts of their guns to hit him, and that he remembered being hit on the head and on his back, and that from the injuries that he received they must have continued to beat him after he lost consciousness. He said that he had some open wounds on his forehead and on the back of his head, and that there was a very large open wound to his left lower back and that a bone was protruding from this wound. He also said that his left leg was twisted and broken below the knee. The reason he gave for being in hospital from 1999 to a date in 2002 was because he was lying on his back for more than a month during which period he was unable to turn, and that he then commenced a rehabilitation programme, involving the use first of all of a wheelchair and then crutches, and massage. He described other treatment for his leg during that time.

13 At interview he had no documentation to support his claim. Neither did he have any medical evidence from Burundi in relation to his injuries, but he was able to produce a note from a General Practitioner, Dr Ryder dated 9th November 2004 which referred to the taking of an x-ray showing "an old healed fracture of his fibula and tibula left leg" (sic). It refers to the fact also that the applicant was suffering from a significant amount of psychological distress as a result of flashbacks to torture he suffered in his home country. In passing I should state, even though no mention was made of this in the Decision or the recommendation that it is at least curious that a medical doctor would use an incorrect word "tibula". Surely this was intended to be "tibia". The correct word appears in the later report dated 20th April 2005. However no question was raised as to the authenticity of the earlier document, so I pay no further attention to the matter.

14 The applicant stated also that he had attended a psychologist here on one occasion, but whose name he could not recall. In spite of the fact that he said that he was hospitalised from 1999 until 2002 with his injuries he was unable to give the name of any of the doctors and could remember the name of only one nurse who had treated him, namely "Regina".

Applicant's father:

15 He stated that his father was...