J (A.M.S.) v Refugee Appeal Tribunal

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M. H. CLARK
• Judgment Date: 19 January 2010
• Neutral Citation: [2010] IEHC 144
• Docket Number: [No. 804 J.R./2008]
• Court: High Court
• Date: 19 January 2010

[2010] IEHC 144

THE HIGH COURT

[No. 804 J.R./2008]

J (A M S) v Refugee Appeals Tribunal (O'Brien)

JUDICIAL REVIEW

BETWEEN

A. M. S. J.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (ELIZABETH O'BRIEN)

RESPONDENTS

REFUGEE ACT 1996 S13

H (H) & ORS v SECRETARY OF STATE FOR THE HOME DEPT (MOGADISHU: ARMED CONFLICT: RISK) SOMALIA CG UNREP 28.1.2008 2008 UKAIT 00022

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 9

ADAN v SECRETARY OF STATE FOR THE HOME DEPT 1998 2 WLR 702 1999 1 AC 293 1998 2 AER 453

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

IMMIGRATION

Asylum

Fear of persecution - Credibility - Country of origin information - Whether error in interpretation of country of origin information in assessing future risk of persecution - Whether failure to take adequate account of past persecution suffered by applicant - Adan v Secretary of State for the Home [1991] 1 AC 293 considered - Illegal Immigrants (Trafficking) Act 2000 (No 29) s 5(2) - Leave granted (2008/804JR - Clark J - 19/1/2010) [2010] IEHC 144

J(AMS) v Refugee Appeals Tribunal

Facts: The applicant claimed to be a member of a minority clan from Somalia and sought leave of the decision to refuse him refugee status on the basis of the applicant failing to demonstrate a well founded fear of persecution. He claimed to be a member of a minority clan and had fled Somalia to come to Ireland. The applicant contended that the Tribunal member erred in failing to attribute more weight to the applicant's past persecution. The applicant also contended that the applicant should have been subject to a differential victimisation on the basis of country of origin information and that the applicant was at a heightened risk of persecution. The respondent contended that the difficulties claimed by the applicant were far too remote. The issue arose as to whether the applicant had established substantial grounds.

Held by Clark J. in granting leave on the basis that the applicant had established substantial grounds as to the Tribunal Member's assessment of the country of information. The Tribunal should have addressed the question of whether the applicant would be subject to a different victimizations and a heightened risk of persecution from his membership of a minority clan. The RAT decision did not disclose any consideration of this issue. Leave would be granted on this issue.

Reporter: E.F.

MS. JUSTICE M. H. CLARK

1 The applicant claims to be a member of a minority clan from Somalia. This is his application forleave to apply for judicial review of the decision of the Refugee Appeals Tribunal (RAT), dated the 23^rd June, 2008, to affirm the earlier recommendation of the Refugee Applications Commissioner that he should not be granted a declaration of refugee status. The hearing took place at the Kings Inns in Court No. 1 on the 13^th November, 2009. Mr. David O'Neill B.L. appeared for the applicant and Mr. Anthony Moore B.L. appeared for the respondent.

2 The applicant claims that he was born in 1950 and is a member of the Ashraf minority clan who are associated with the Benadiri minority clan from Somalia. He claims to have arrived in Ireland in March, 2005 when he made an application for asylum claiming to fear persecution at the hands of the majority Hawiye clan militia. He outlined his circumstances as a person who together with his wife and nine children had been previously mal-treated by the Hawiye. He said he fled Somalia after his release from captivity in early 2005 and came to Ireland.

3 The Refugee Applications Commissioner interviewed the applicant in August, 2005 and made a negative recommendation on the basis of a number of negative credibility findings. Doubts were expressed in the s. 13 report about his membership of the Ashraf clan. The applicant's solicitors, James Walters & Co.,¹ lodged a Notice of Appeal to the RAT on his behalf appended to which were grounds of appeal and extracts from these country of origin information (COI) reports:

4 · Oxford HouseField research project on minorities in Somalia (March, 2005)

· U.K. Home Office Country Report - Somalia (April, 2005)

· U.K. Immigration and Nationality Directorate report on Somalia (undated)

5 ·Report on minority groups on Somalia (this appears to be an extract from section 7.1 of a report prepared by a Joint British, Danish and Dutch fact-finding mission to Nairobi, Kenya, 2001).

6 4. An oral hearing took place in February, 2008 at which the applicant was legally represented; a note of the hearing was kept by the applicant's solicitors and is before the Court. It records that the applicant stated that the majority Hawiye clan would kill him if they knew he came from outside. The Tribunal Member put it to him that since he left Somalia, the Hawiye clan had been having troubles of their own in that they were now targeted by the Darod. The applicant disagreed saying that when the majority tribes were fighting, the Benadiri were in the middle, vulnerable in every way. There seems to have been a measure of agreement that the focus of the Hawiye now was the Darod. At the end of the hearing the Tribunal Member indicated that she intended to rely on a U.K. Home OfficeReport of Information Gathering Mission (May, 2007) and Operational Guidance Note for Somalia (12^th November,

7 ¹Acting under the Legal Aid Board / Refugee Legal Service Private Practitioner Scheme.

8 2007).² She summarised their effect as being that the Darod were now in power and were targeting the Hawiye and as a result, minority clans were not receiving the same attention as they previously had.

The RAT Decision

9 5. A negative decision issued from the RAT on the 23^rd June, 2008. That decision is challenged in these proceedings. The Tribunal Member expressed some difficulties with aspects of the applicant's account but for fear of being judicially reviewed she reluctantly accepted his account at face value. She summarised the applicant's account of his fairly appalling past experiences in Somalia at the hands of Hawiye clan members, many of which were in the distant past, and his evidence and submissions at the oral hearing. She then proceeded to consider his case from the point of view of future risk. She interpreted the COI which was before her as indicating a change of circumstances in Somalia in that there was no evidence that the Ashraf were being targeted in the struggle between the Darod and the Hawiye and concluded that the applicant therefore did not have a well-founded fear on an objective basis. She stated:-

"I put to the Applicant the general conclusion of the country of origin information that I reviewed, namely that the Darod clan are now effectively in power and that they have turned their attentions on the Hawiye, indeed COI points out that most IDPs are now from the Hawiye clan. TFG military actions (the TFG being compromised predominantly of the Darod) have deliberately targeted the Hawiye clans in general, and specifically the Hawiye sub-clans of the Habar Gidir Ayr, Habar Gidir Suleyman and Duduble. I did point out to the Applicant that the country of origin information points to a targeting of the Hawiye clans by the Darod, and that accordingly it was difficult to understand how the Hawiye clans would be in a position to exert the same influence that they had previously, in particular insofar as targeting minority clans would be concerned. The Applicant however claims that he would be caught up in the crossfire. It is indeed acknowledged in the country of origin information (up-to-date)...