A (J.M) v The Minister for Justice, Equality and Law Reform and Another High Court Ms. Justice Clark. 06/02/2009 2007 979 JR
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | MS. JUSTICE M.H. CLARK, |
| Judgment Date | 06 February 2009 |
| Neutral Citation | [2009] IEHC 83 |
| Date | 06 February 2009 |
[2009] IEHC 83
THE HIGH COURT
BETWEEN
AND
REFUGEE ACT 1996 S11
REFUGEE ACT 1996 S13(1)
REFUGEE ACT 1996 S11B(B)
REFUGEE ACT 1996 S13(6)(D)
REFUGEE ACT 1996 S13
UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 213
UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 219
BUJARI v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP FINLAY-GEOGHEGAN 7.5.2003 2003/7/1414 2003 IEHC 18
B (NM) v REFUGEE APPEALS TRIBUNAL (RYAN) & ORS UNREP FINLAY-GEOGHEGAN 24.1.2005 2005/4/827 2005 IEHC 13
A (FA) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (ZAIDAN) UNREP BIRMINGHAM 24.6.2008 2008 IEHC 220
REFUGEE ACT 1996 S17(7)
REFUGEE ACT 1996 S11A
IMMIGRATION ACT 2003 S7(F)
K (G) & ORS v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557
REFUGEE ACT 1996 S13(6)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5
REFUGEE ACT 1996 S13(5)
REFUGEE ACT 1996 S11A(1)
REFUGEE ACT 1996 S11A(3)
U (MG) v REFUGEE APPEALS TRIBUNAL & ORS UNREP CLARK 22.1.2009 2009 IEHC 36
IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 10.5.2005 2005/31/6357 2005 IEHC 150
MOYOSOLA v REFUGEE APPLICATIONS CMSR & ORS UNREP CLARKE 23.6.2005 2005/40/8261 2005 IEHC 218
UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 215
UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 216
UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 217
IMMIGRATION
Asylum
Credibility - Well founded fear of persecution - Previous United Kingdom asylum application - Subsequent Irish asylum application - No right to oral appeal - Documentary based appeal - Assessment of applicant's claim - Whether any adequate assessment of applicant's claim - Whether any failure to take account of applicant's minority - Whether analysis of claim insufficient - Whether any real assessment of evidence - Lack of correspondence - Substantial grounds - Whether any breach of fair procedures - Bujari v Minister for Justice [2003] IEHC 18 (Unrep, Finlay Geoghegan J - 7/5/2003), Biti v Refugee Appeals Tribunal [2005] IEHC 13, (Unrep, Finlay Geoghegan J, 24/1/2005), FAA v Minister for Justice [2008] IEHC 220, (Unrep, Birmingham J, 24/6/2008), GK v Minister for Justice [2002] 2 IR 418 considered; MGU v Refugee Appeals Tribunal [2009] IEHC 36, (Unrep, Clark J, 22/1/2009), Idiakheua v Minister for Justice [2005] IEHC 150, (Unrep, Clarke J, 10/5/2005) and Moyosola v Refugee Applications Commissioner [2005] IEHC 218, (Unrep, Clark J, 23/5/2005 distinguished - Refugee Act 1996 (No 17) , ss 11A, 13(6)(d) and 17(7) - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(2) - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Leave refused (2007/979JR - Clark J - 6/2/2009) [2009] IEHC 83
A(JM) v Minister for Justice
Facts The applicant sought leave to apply for judicial review of the decision of the second named respondent affirming the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicant should not be granted a declaration of refugee status. The applicant claimed to be a national of Somalia and claimed to fear persecution based on clan membership. The applicant further claimed that he was seventeen years of age and he was treated as an unaccompanied minor for the purposes of his application. The applicant initially denied that he had unsuccessfully applied for asylum in the U.K. before travelling to Ireland but later admitted that he had so applied. The applicant changed certain other details of his story during the asylum process. The ORAC officer made negative findings against the applicant and found that Ireland was not the first safe country the applicant arrived at and further that as a result of his prior asylum application he was not entitled to an oral hearing before the second named respondent. The first decision of the respondent was vacated following judicial review proceedings that concluded by way of compromise but the applicant was not notified that his appeal had been allotted to a new tribunal member and he did not submit any additional submissions. The applicant submitted that the respondent's decision was an inadequate assessment of his claim, failed to take account of his minority status and there was a lack of correspondence between the tribunal and the applicant inviting him to make fresh submissions after the first decision was vacated.
Held by Clark J. in refusing the application: That there was ample evidence, having regard to the applicant's evolving narrative regarding his identity and nationality on which to come to negative credibility findings. The reasons for confirming the ORAC findings were clear from the respondent's decision. There was no breach of fair procedures insofar as there was no correspondence between the respondent and the applicant following the settlement of the first appeal decision. If new information had come to light following the first decision it was for the applicant to make updated submissions when the case settled. Finally, the respondent could not be criticised for considering the applicant's maturity in the light of his personal background.
Reporter: L.O'S.
The applicant seeks leave to apply for judicial review of the decision of the Refugee Appeals Tribunal (RAT), dated 2 nd July, 2007 affirming the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicant should not be granted a declaration of refugee status.
Mr. Peter Leonard B.L. appeared for the applicant and Ms. Sinéad McGrath B.L. appeared for the respondents. The hearing took place at Kings Inns in Court 1 on 28 th January, 2009.
The applicant claims to be a national of Somalia and a Muslim. His account of events is as follows: he was born on 12 th May, 1988 in Goob Weyn but moved to the Calanley district of Kismayo, a southern port city, when he was very young and lived there until he was eleven years of age. He is a member of the Talaabo Ade sub-clan, which he says is a sub-clan of the Muse-Dheryo, which in turn is a part of the minority Midgan clan. He says his father was a blacksmith who operated a shop and was well known in the locality. The applicant claims that militia used to beat his father with an iron bar and with the butt of a gun at his shop in Kismayo in order to extort money from him.
In 1999, the applicant's family arranged for him to leave Somalia with three men of the Midgan clan. He moved to the Eastleigh area of Nairobi in Kenya, where he remained for five years. For the first two months he lived with the three Somalis with whom he had travelled, but he then lived on the streets before finding shelter at a mosque. He made money by selling sweets and washing cars with a group of other homeless Somali boys and learned to read and write Somali with this group. He says he was regularly harassed by Kenyan police and arrested three times; on each occasion he was forced to bribe the police to secure his release. In 2001, he was told by a man at the mosque who was from his area of Somalia that his father and half-brothers had been killed by militias. The group of homeless boys would collectively save money they had earned so that each in turn, according to the length they were in the group, could buy a ticket to escape Kenya. His turn to escape came on 7th June, 2004. He journeyed to the U.K. with the help of an agent, travelling via Hargeysa (Somalia), Dubai and Bahrain. Once in the U.K., the agent helped him to find his aunt in Watford.
The applicant applied for asylum in the U.K. on 8 th July, 2004, when he was sixteen years of age, claiming to fear persecution on the basis of his "race". He completed a Screening Form, made a personal statement, completed a statement of evidence, and attended for interview. At that interview, he said he was of the Midgan clan and the Muse-Dheriyo sub-clan. He claimed that he had entered the U.K. in June, 2004, that he was living with his aunt, and that he had left Somalia five years previously, in 1999. He said he had since lived in Nairobi and that he had sold sweets and washed cars there. He said that for the first two months he had lived with three other Somalis, then on the streets and then in a mosque. He said he was constantly harassed by Kenyan police. In 2001, he heard from a man at the mosque that his father and half-brothers had been killed. He said he and around 30 other boys had saved money to escape, and he had travelled with an agent to the U.K. via Hargeysa, Dubai and Bahrain.
At interview, he was asked a number of questions about his clan and about Somalia and the Kismayo area. He was unable to answer many very basic questions. He could not name any towns close to Kismayo or any of the islands nearby. He did not know the names of any Midgan sub-clans apart from the Muse-Dheryo, and he could not name any other place other than Kismayo where the Midgan people live. He did not know any of his clan's occupations except blacksmiths, and he could not name any larger clans who lived nearby. He did not know the date or year his family became affected by the civil war, and he did not know the clans who attacked and robbed his father.
His application was refused at first instance by the Home Office on 19th August, 2004. He appealed to an Immigration Adjudicator of what was then the Immigration Appellate Authority...
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