K. H. A. v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 23 January 2015
• Neutral Citation: [2015] IEHC 91
• Court: High Court
• Date: 23 January 2015

[2015] IEHC 91

THE HIGH COURT

[No. 72 J.R./2010]

A (K H) v Refugee Appeals Tribunal & Min for Justice

No Redaction Needed

JUDICIAL REVIEW

BETWEEN

K. H. A.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

KHAZADI v MIN FOR JUSTICE & ANOR UNREP HIGH GILLIGAN 19.4.2007 (EX TEMPORE)(TRANSCRIPT NOT AVAILABLE)

N (M) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (ZAIDEN) UNREP MCGOVERN 7.5.2008 2008/38/8327 2008 IEHC 130

N (AM) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP MCDERMOTT 3.8.2012 2012/33/9613 2012 IEHC 393

A (TMA) v REFUGEE APPEALS TRIBUNAL UNREP COOKE 15.1.2009 2009 IEHC 23 2009/2/434

K (RM) v REFUGEE APPEAL TRIBUNAL & MIN FOR JUSTICE UNREP CLARK 28.9.2010 2010/27/6636 2010 IEHC 367

E (M) v REFUGEE APPEALS TRIBUNAL & ORS UNREP BIRMINGHAM 27.6.2008 2008/22/4746 2008 IEHC 192

L (J) & M (J) v REFUGEE APPEALS TRIBUNAL UNREP GILLIGAN 3.7.2008 2008/34/7384 2008 IEHC 254

PAMBA v REFUGEE APPEALS TRIBUNAL UNREP COOKE 19.5.2009 [TRANSCRIPT NOT AVAILABLE]

M (NR)[DRC] v REFUGEE APPEALS TRIBUNAL & ORS UNREP CLARK 20.1.2014 2014 IEHC 120

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 REG 5(1)(A)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 REG 5(1)(B)

SALIM v REFUGEE APPEALS TRIBUNAL UNREP BIRMINGHAM 15.9.2010

K (MTT)[DRC] v REFUGEE APPEALS TRIBUNAL & ORS UNREP CROSS 20.4.2012 2012/20/5658 2012 IEHC 155

B (C)[DRC] v REFUGEE APPEALS TRIBUNAL UNREP CLARK 26.6.2012 2012/3/635 2012 IEHC 487

S (AA) v REFUGEE APPEALS TRIBUNAL UNREP MAC EOCHAIDH 7.2.2013 2013/46/13101 2013 IEHC 44

I (EO) v MIN FOR JUSTICE & ORS UNREP MCDERMOTT 7.3.2014 2014 IEHC 107

V (F) v REFUGEE APPEALS TRIBUNAL (DOURADO) & MIN FOR JUSTICE UNREP IRVINE 28.5.2009 2009/56/14311 2009 IEHC 268

N (PB)[DRC) v MIN FOR JUSTICE UNREP SUPREME 21.2.2014 2014 IESC 9

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

Z (AIM) v REFUGEE APPLICATIONS COMMISSION & ORS UNREP CLARK 7.11.2008 2008/61/12819 2008 IEHC 420

UN HIGH COMMISSIONER FOR REFUGEES INTERPRETING ARTICLE 1 OF THE 1951 CONVENTION RELATING TO THE STATUS OF REFUGEES 1.4.2001 PARA 20-21

REFUGEE ACT 1996 S2

J (AMS) v REFUGEE APPEAL TRIBUNAL UNREP CLARK 19.1.2010 2010/24/6000 2010 IEHC 144

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

GOODWIN-GIL THE REFUGEE IN INTERNATIONAL LAW 3ED 2007 P127-128

MIN FOR IMMIGRATION & MULTICULTURAL AFFAIRS v ABDI 1999 FCA 299

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

EUROPEAN UNION (SUBSIDIARY PROTECTION) REGS SI 426/2013

Immigration and Asylum - s. 5 of the Illegal Immigrants (Trafficking) Act 2000 – Refugee Status – Refugee Appeals Tribunal – Medical Evidence – Ethnicity

Facts: The applicant sought an order of certiorari by way of judicial review of the first named respondent"s decision. The application was made outside the permitted fourteen day time limit stipulated in s. 5 of the Illegal Immigrants (Trafficking) Act 2000. The court was satisfied that the reason for the delay was because the applicant changed solicitors. The court made an order to extend the time in order to bring the proceedings. The applicant was an Ethiopian national whose husband was a prominent member of the Oromo Liberation Front ('OLF'). The applicant claimed she was raped and shot in the stomach by the Guijii militia after they attacked her village. The applicant also claimed that she was hospitalised for three weeks after the attack and during this time her husband was taken away and arrested.

After returning home, the applicant claimed she was arrested by government forces and put in prison where she was subjected to physical abuse. After she was released the applicant fled to Ireland and applied for asylum. The Refugee Applications Commissioner ('RAC') refused to declare the applicant a refugee. The applicant appealed to the Refugee Appeals Tribunal ('RAT') and it affirmed the RAC"s recommendation. The applicant appealed against the RAT"s decision on four grounds: i) its failure to consider medical and psychological evidence; ii) its failure to assess the risk based on her Oromo ethnicity; iii) its failure to analyse documentation from the OLF European Regional office and, iv) the fact it erred in law by applying a differential risk test.

Held by Barr J: The court was satisfied that the SPIRASI report was a significant piece of evidence that should have been afforded careful consideration. The Tribunal had a duty to give reasons for rejecting the report. In this instance, the Tribunal"s decision failed to deal with the psychological findings. The court determined that the Tribunal erred in law by failing to consider the medical report and for failing to provide reasons for rejecting the report. The court said the RAT"s decision on this account was unlawful.

The court stated that the RAT should have made a determinative finding on whether or not the applicant was an Ethiopian of Oromo ethnicity. The country of origin information put before the RAT confirmed that Oromo were persecuted in Ethiopia simply because of their ethnicity. The court determined that the RAT should have considered this.

The court agreed with the respondent that the OLF documentation did not have any great probative value. It did not prove whether the applicant was an active supporter of the OLF. The court determined the Tribunal was not at fault for the way it dealt with the documentation.

The court was satisfied in relation to the attack on the village that the applicant did not have to prove she was specifically targeted over and above other victims. The court stated the applicant"s fourth ground of appeal did not have any legitimacy. This was because the RAT"s decision was not a finding that the applicant had to establish she was singled out for treatment, but rather a statement of the evidence given by the applicant before the Tribunal.

The court quashed the RAT"s decision for failing to adequately consider the applicant"s medical evidence and for failing to make a finding on whether or not she could be declared a refugee because of her Oromo ethnicity. The court referred the matter back to the RAT for reconsideration by a different Tribunal member.

Introduction

1 1. This is a telescoped hearing in which the applicant seeks an order of certiorari by way of judicial review in respect of a decision of the first named respondent (hereinafter referred to as "RAT") dated 30 ^th November, 2009.

Extension of Time

2 2. The letter notifying the applicant of the decision challenged herein was dated 7 ^th December, 2009. The notice of motion herein was filed in the Central Office of the High Court on 26 ^th January, 2010. This was after the expiry of the fourteen day time limit within which to bring these proceedings as stipulated by s. 5 of the Illegal Immigrants (Trafficking) Act 2000. The matters giving rise to the deadline being missed and explaining the delay have been set out in an affidavit sworn by the applicant on 26 ^th January, 2010.

3 3. The applicant states that following receipt of the letter of 7 ^th December, 2009, she made contact with her present solicitors. She was extremely upset and distressed with the decision and its contents and wished, if at all possible, to challenge it and she conveyed this to her solicitors.

4 4. She was advised of the options available to her, one of which included the bringing of these proceedings. She states that she was advised by her solicitors that the delay in bringing the application herein arose solely in the following circumstances: it was necessary for her solicitors to request her file from the Refugee Legal Service which was done by letter dated 18 ^th December, 2009. The Refugee Legal Service then sent a letter dated 22 ^nd December, 2009, to her solicitors enclosing their file in the matter. This letter with the enclosed file was received by the applicant's solicitors on 5 ^th January, 2010.

5 5. The applicant states that her solicitor sent a letter of 11 ^th January, 2010, to the Refugee Legal Service requesting documentation which was missing from the papers furnished to the solicitors.

6 6. The applicant states that by letter dated 14 ^th January, 2010, the Refugee Legal Service sent the missing documentation to her solicitors. They then sent the papers to counsel on 20 ^th January, 2010. By email of 24 ^th January, 2010, counsel advised the solicitors that he considered that there were substantial grounds for challenging the RAT decision by way of judicial review. In the email, counsel raised a query regarding certain documentation concerning her case. This query necessitated interaction between the solicitors and counsel on the following day.

7 7. The applicant states that she was advised by her solicitors that the papers for the application herein were drafted as soon as was practicable. She states that any delay in the bringing of the application herein did not arise through her fault and was occasioned solely for the reasons and in the circumstances she has outlined.

8 8. I am satisfied that the delay in this case was caused by the fact that the applicant had to change solicitors in relation to the bringing of these proceedings. Also, the time within which actions were to be taken coincided with the Christmas holiday period. The delay in the matter was not due to any fault on the part of the applicant. In addition, there does not seem to be any prejudice suffered by the respondents if an extension of time is given. In the circumstances, therefore, I will make an order extending the time for the bringing of these proceedings up to and including 26 ^th January, 2010.

Background

9 9. The applicant...