J. A. v Refugee Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 02 December 2014 |
| Neutral Citation | [2014] IEHC 565 |
| Court | High Court |
| Date | 02 December 2014 |
[2014] IEHC 565
THE HIGH COURT
AND
REFUGEE ACT 1996 S11
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)
BALOGUN v REFUGEE APPEALS TRIBUNAL & ORS UNREP CHARLETON (EX-TEMPORE) 6.2.2008 [TRANSCRIPT NOT AVAILABLE]
EDOBOR & MESSAOUDI v REFUGEE APPEALS TRIBUNAL 2006 2 IR 11 2005 2 ILRM 113 2005/23/4691 2005 IESC 15
R (A M) v REFUGEE APPEALS TRIBUNAL & ORS UNREP MCGOVERN 25.4.2008 2008/54/11245 2008 IEHC 108
A (T) & O (O J)(A MINOR) v REFUGEE APPEALS TRIBUNAL & ORS UNREP MAC EOCHAIDH 3.4.2014 2014 IEHC 204
CHUKWUEMEKA v MIN FOR JUSTICE & ANOR UNREP BIRMINGHAM (EX-TEMPORE) 7.10.2007 [TRANSCRIPT NOT AVAILABLE]
K (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (DURADO) UNREP BIRMINGHAM 12.6.2008 2008/31/6769 2008 IEHC 173
R (I) v MIN FOR JUSTICE & ORS UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353
K (K) v REFUGEE APPEALS TRIBUNAL UNREP COOKE 25.3.2011 2011/29/7833 2011 IEHC 125
IDIAKHEUA v REFUGEE APPEALS TRIBUNAL UNREP CLARKE 10.5.2005 2005/31/6357 2005 IEHC 150
REFUGEE ACT 1996 S13
Judicial Review Application – Order of Certiorari – Refugee Appeal Tribunal – Fear of Persecution on grounds of race and political opinion – Refugee Act 1996 – Credibility
Facts: This case concerned a telescoped judicial review application for an order of certiorari quashing the decision of the Refugee Appeals Tribunal (RAT), affirming the recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicant not be declared a refugee. The applicant, a Cameroonian national had claimed to have a well-founded fear of persecution on grounds of race and political opinion. The appellant sought to challenge the decision of the RAT on the basis that the nine month delay between the applicant”s oral hearing and the RAT decision undermined the decision because the decision was based entirely on adverse credibility findings and the applicant”s testimony would not have been fresh in the Tribunal Member”s mind nine months after the hearing.
Held by Justice Bar, having regard to the seriousness of the allegations, the submissions presented and available evidence, that whilst the delay was significant, the applicant had, failed to show that the decision was undermined or rendered defective by reason of the delay. Consequently, that ground failed. In respects of the negative credibility finding it was determined that the applicant had not been given the opportunity at the RAT hearing to comment on or to respond to matters arising on foot of the Tribunal”s consideration of the membership card. The applicant claimed that this was an audi alteram partem issue and that the failure of the Tribunal to put those issues to the applicant constituted a breach of fair procedures. Justice Barr reasoned that because that flawed determination went to the very heart of the applicant”s claim, the RAT decision in respect of the applicant”s credibility was unsafe and must, accordingly, be quashed. Consequently, an order quashing the decision of the RAT was made and the matter was remitted for consideration by a different Tribunal member.
1. This is a telescoped judicial review application for an order of certiorari quashing the decision of the Refugee Appeals Tribunal ("the RAT") dated 1 st February, 2010, affirming the recommendation of the Office of the Refugee Applications Commissioner ("ORAC") that the applicant not be declared a refugee.
2. The applicant, who is a Cameroonian national, was born on 1 st July 1970. He is a married man and has four children. His eldest child was born in 1999 and his youngest in 2005. He speaks English and French. He stated that his father was a local coordinator in Social Democratic Front (SDF) and had been a member of the party since its formation in 1990. The applicant claims to have joined the SDF in 2004, at the age of 34. His brother, Paul, was also a member. The applicant stated that he joined when the party was preparing for an election. The intention was to fight for fair and equal treatment for the Anglophone part of Cameroon, which had been marginalised by the government in favour of the Francophone part of the country. As members of the SDF, the applicant stated that he and his brother took part in campaigning. This involved them travelling to different villages and talking to people about joining and supporting the party.
3. The applicant claims that difficulties started to arise in March 2004. He stated that the government sent delegates to his father requesting that he leave the SDF and join the government party, the Cameroon PDM, instead. The applicant's father refused. He was also asked to change the candidate nominated in his ward so that the SDF would lose. This he also refused to do. The applicant claimed that around two weeks afterwards, on the evening of 16 th August, 2004, he, his father and mother, two of his brothers, and his children were in his parentsrsquo; house watching television. They heard a loud bang on the door. The applicant claims that the door was then forced open, and around five masked men entered the house. They made the applicant and his family lie down. They told the applicant's father that "since he does not want to belong to them he should face the music." They then shot the applicant's father in the chest, and he died as a result of his injuries. This happened in the applicant's home village of Ndum, which is close to Mbessa.
4. The following morning, the applicant stated that he and his brother went to the police station to report their father's murder. He stated that the police station is far away. The applicant claims that the police asked them if they knew who was responsible. The applicant stated that they told the police that they had come to ask them to investigate. The police, however, stated that the applicant and his brother should go and find out who did it and come back to them. The applicant states that it was at this point that he realised the police did not want to help. The next day, 18 th August, 2004, the applicant and his brother arranged for the burial of their father.
5. A month subsequently, according to the applicant, he and his brother went to the police again to see if they had investigated their father's murder. On this occasion, the applicant states that the police accused them of murdering and burying their father. He claimed that they were arrested and sent to New Bell prison in Douala, where they were detained for two weeks. In prison, the applicant claims to have been tortured. He said that he was handcuffed and made to stand on one leg. He also claims that a horsewhip was used on him and that he was flogged every day for two weeks. He states that there were around 50 prisoners in a room. The applicant showed the RAT a scar on his arm. There were, however, no other scars from the horsewhipping.
6. After two weeks in New Bell prison, the applicant and his brother were released. He states that the warder told him that he was surprised about their release and felt it was on account of how their father was killed. The warder told them not to talk about their father's death any longer. In his evidence to the SPIRASI doctor, the applicant interpreted this episode as a warning. In his questionnaire, at p. 36, he explained: "After two weeks we were released and warned to be silent and promised that when next they arrested us we will not survive it (sic)."
7. The applicant and his brother returned home. Some months later, their mother became ill with high blood pressure. She died as a result of a heart attack in January 2005. After his mother's death, the applicant states that he was angry about how his parents had died. He said that he engaged a lawyer to petition the governing PDM party, and the police, for killing his parents and unlawfully arresting, detaining and torturing himself and his brother in prison. He claims that the Ministry for Justice sent a letter stating that his case would be heard on 5 th April, 2005.
8. However, in March 2005, the applicant stated that he was in his backyard cleaning up a lantern when he heard the noise of an engine at the front of his house. He then heard a bang on the door followed by someone asking his wife, in a loud voice: "Where is James? If you don't produce him now, we will shoot." They then shot into the air. The applicant fled in fear for his life. He believes this was the same group as murdered his father and that they came after him because of his petition to the Ministry for Justice.
9. The applicant claims to have walked for ten hours to a town called Belo and to have spent the night there in an uncompleted building. The following day he says woke up and went around the town to see if he could find somewhere to stay. He claims to have stayed with a person called mother Ngbuesi; he claims to have remained there for nearly a year and to have worked as a mason. He states that he had no contact with his family during this time. He did, however, see someone he knew from his home and gave this person some money to give to his wife, but told this person not to tell his family where he was. In his s. 11 interview, however, the applicant stated that he had sent a message to his family and that they knew he was in Belo. The applicant claims that eventually he began to see people he knew and felt that he was no longer safe. For this reason, he claims to have gone to stay with his father's friend in Yaounde in April 2006. He stayed there for a year. Eventually, his father's friend told the applicant that people were aware that the applicant was in his house, that it was not...
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S.H.I. v Refugee Appeals Tribunal
...principle, which has been followed in the case law since (including, for example, in the decision of Barr J. in J.A. v. R.A.T. [2014] I.E.H.C. 565):- ‘If a matter is likely to be important to the determination of the RAT then that matter must be fairly put to the applicant so that the appli......