J.A. v McHugh and Another

• Jurisdiction: Ireland
• Judge: MR JUSTICE HEDIGAN
• Judgment Date: 15 October 2008
• Neutral Citation: [2008] IEHC 310
• Court: High Court
• Date: 15 October 2008

[2008] IEHC 310

THE HIGH COURT

[66 JR/2007]

A (J) v Refugee Appeals Tribunal (McHugh) & Min for Justice

BETWEEN

J. A.

APPLICANT

AND

DAVID MCHUGH, SITTING AS THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(a)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

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

BANZUZI v REFUGEE APPEALS TRIBUNAL & ORS UNREP HIGH FEENEY 18.1.2007 2006/6/977

K (G) & ORS v MIN FOR JUSTICE & APPEALS AUTHORITY & ORS 2002 2 IR 418

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

BUJARI v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HIGH FINLAY-GEOGHEGAN 7.5.2003 2003/7/1414

IMAFU v MIN FOR JUSTICE & ORS UNREP HIGH PEART 9.12.2005 2005/31/6380

Abstract:

Immigration law - Asylum - Judicial review - Leave - Extension of time for good and sufficient reason - Angola - Attacked by army Illegal Immigrants (Trafficking) Act 2000

Facts: The applicant from Angola sought leave to review a decision of the respondent refusing his application for refugee status The appellant contended that the RAT decision was flawed on the basis that there was a failure to take account of documentation submitted relating, inter alia, to membership of a political group, that a medical report had not been adequately considered indicating that he had been stabbed and that the assessment of credibility by the respondent was flawed.

Held by Hedigan J. that leave would be refused. The Court was not satisfied that substantial grounds had been established. The failure to consider a medical report was not probative of any fact. It was open to the Tribunal member to make the findings of credibility made. Any error that occurred as to the identity card matter was not fatal to the decision.

Reporter: E.F.

1 MR JUSTICE HEDIGAN, delivered on the 15th day of October, 2008

2 1. The applicant is a national of Angola. He is seeking leave to apply for judicial review of the decision of the Refugee Appeals Tribunal ("RAT") to affirm the earlier recommendation of the Office of the Refugee Applications Commissions ("ORAC") that the applicant should not be declared a refugee.

Factual Background

3 2. The applicant lived with his wife and their three daughters in Cabinda, a province of Angola. He says that since 1995, he has been a member of the Front for the Liberation of the Enclave of Cabinda (FLEC), a separatist movement in Cabinda. There is some ambiguity as to his precise role as a FLEC member, but it seems that as a primary school teacher, he employed the political strategy of teaching his students that the Angolan authorities were taking the wealth of Cabinda, in an effort to inspire patriotism in them. He would also speak informally to young people at soccer matches, dances and church, and provide information to FLEC members and sympathisers, both orally and in the form of leaflets and brochures. He also says that his efforts to publicise the FLEC cause were carried out in a clandestine manner.

4 3. It seems that one of the applicant's students told a parent who was a member of the secret police about the applicant's teachings, and that parent began to enquire about him. At 3am on 10 ^th June, 2004, members of the Angolan army attacked the applicant's family home. His house was searched and his papers taken. His wife was beaten with a gun, and his daughters were locked in their room. The applicant was taken away and detained in a camp in an underground cell. During questioning about FLEC, he was subject to harassment and acts of brutality and torture, including stabbing. He says his release was secured by a General of the Angolan army who is an informer for FLEC. With the General's assistance, the applicant and his family fled to Ireland.

Procedural Background

5 4. The applicant and his family arrived in Ireland on 12 ^th July, 2004. The applicant applied for asylum and specified that his children were to be included as dependants on his application. He was interviewed by an authorised ORAC officer on 13 ^th April and 22 ^nd June, 2005. The officer compiled a section 13 report on 25 ^th June, 2005, recommending that the applicant should not be declared a refugee. Appended to the section 13 report were a UK Home Office Report on FLEC of April, 2004 and the response of the Swiss Federal Office of Refugees to a query about FLEC activities. Negative credibility findings were drawn from what were seen as inconsistencies between the information contained in those reports and the applicant's account of events.

6 5. The applicant appealed to the RAT. He submitted the following documentation: a Human Rights Watch report of December, 2004; a medical report concerning the mental health of two of his daughters, compiled by the HSE Child and Adolescent Mental Health Services Unit; and a medical report relating to the applicant, compiled by his GP. A week after his first RAT oral hearing, the applicant forwarded a letter from the FLEC European Headquarters in Belgium affirming his affiliation with the movement, and a photocopy of his FLEC membership card, which had also previously been submitted to ORAC. Receipt of each of these documents was acknowledged by the RAT.

7 6. The Tribunal Member's decision to reject the appeal, dated 16 ^th February, 2006, was challenged in judicial review proceedings which were settled and the matter was remitted for re-hearing before the RAT. A new oral hearing was scheduled for 13 ^thSeptember, 2006 but that hearing was adjourned as the applicant's wife and the three children disappeared in July, 2006. Their disappearance was reported to the Gardaí but they are still missing. A new oral hearing proceeded with respect to the applicant's appeal on 20 ^th November, 2008. The applicant was legally represented and a translator was present. The Tribunal Member decided on 29 ^th November, 2006 to reject the appeal, basing his decision on a number of negative credibility findings. It is that decision that is challenged in the within proceedings.

Extension of Time

8 7. The within proceedings were commenced outside of the 14 day time-limit set by section 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000. In the present case, the period of delay includes the Christmas and legal vacation period and the respondent has made no objection to the extension of time. In the circumstances, I am satisfied that there is good and sufficient reason for extending time.

THE SUBMISSIONS

9 8. The applicant complains that the RAT decision is flawed in the following way:-

10 a a. Failure to take account of documentation submitted; and

11 b b. Failure to adequately consider a medical report; and

12 c c. Flawed credibility assessment.

(a) Failure to Take Account of Documentation Submitted

13 9. The applicant contends that the Tribunal Member failed to take account of three pieces of documentation submitted by him in support of his appeal, namely:

14 a a. His FLEC membership card;

15 b b. The letter from the European HQ of FLEC in Belgium;

16 c c. The medical report relating to his two daughters.

17 10. The applicant submits that the membership card and letter are evidence of his membership of FLEC. The RAT decision makes reference to submissions made by the applicant's counsel at the oral hearing in respect of his FLEC ID document, but no further reference is made to them in the decision. The applicant says that the children's medical report substantiates his account of the attack on his home and his arrest. The report states that the children were exhibiting behaviour that was consistent with having been exposed to trauma prior to travelling to Ireland. It also says that the younger girl describes hiding under a bed when soldiers abused her parents, and is frightened of...