K.A.H. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Ms Justice Faherty
• Judgment Date: 21 December 2015
• Neutral Citation: [2015] IEHC 834
• Docket Number: [2011 No.493 JR]
• Court: High Court
• Date: 21 December 2015

[2015] IEHC 834

THE HIGH COURT

Faherty J.

[2011 No.493 JR]

BETWEEN

K.A.H.

APPLICANT

AND

REFUGEE APPEAL TRIBUNAL

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

Asylum, Immigration & Nationality – The Refugee Act 1996 – Appeal against the decision of the Refugee Appeals Tribunal – certiorari – Consideration of country of origin information

Facts: The applicant sought leave for judicial review and an order of certiorari for quashing the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicant should not be declared a refugee. The applicant contended that the first named respondent had failed to consider the relevant documents establishing his citizenship and residency of the area where he had suffered persecution. The first named respondent contended that it was not bound to consider every piece of information while rejecting the credibility of the applicant.

Ms. Justice Faherty granted an order of certiorari and quashed the decision of the first named respondent and remitted the matter for a de novo hearing before a different member of the first named respondent. The Court in consonance with the decision of Cooke J. in IR v. Min. for Justice [2009] IEHC 353 held that the assessment of credibility must be made by reference to the full picture that emerged from the available evidence and information taken as a whole when rationally analysed and fairly weighed. The Court found that the first named respondent had failed to consider the documents in relation to his residency, which was a part of his core claim. The Court found that the error on the part of the first named respondent to adequately assess the relevant material could not cure the procedural deficit as it was a statutory obligation.

Judgment of Ms Justice Faherty delivered the 21st day of December 2015.

1 This is a telescoped hearing in which the applicant seeks leave for judicial review and an order of certiorari quashing the decision of the first named respondent which affirmed the recommendation of the Refugee Appeals Commissioner not to declare him a refugee.

Background

2 The applicant's claim is as follows: He was born in Muhajlria, South Darfur, Sudan. He is a Muslim and is a member of the Bergid tribe. He married on 19th October, 2004 and has one child. He has one older brother and two older sisters. The applicant fled Sudan, where is wife and child remain, on 25th October, 2007 and arrived in Ireland on 20th November, 2007. His friend has tried to contact his family for him but did not succeed.

3 The claimed circumstances of his fleeing Sudan arose in the following circumstances: The applicant ran a shop in the market selling flashlights and batteries. On 26 June, 2007, he was detained by Sudanese government forces, assisted by information from the Sudanese Liberation Movement (SLM also know as Sudanese Liberation Army (SLA)/ Minnawi), led by Mustapha Tirab. He and several others were taken from Souk/Market. The applicant was blindfolded and said he was taken to a detention centre in the Shearia area, with another 7 people. On arrival, he and the other detainees were tortured and beaten and left in the sun for hours.

4 He was not questioned at that stage but he knew he was suspected of collaborating with small rebel movements which were against the government and Minnawi. After six days he was transferred to another detention centre about an hour away where he was again beaten and kept for 9 or 10 days. He and the others were then taken to a third detention centre. It was a big camp, surrounded by a high wall with a large garage and 30-40 Toyota Land Cruisers. The applicant says there were lots of prisoners but there were eight in his small cell, some from Fur, Masaalit and Bergid. He knew a man (N) from Muhajirya, where the market is located, but none of the others. The beatings continued. They were all taken to the middle of the camp and beaten. One man named lost consciousness and was taken away, back to the cell. The applicant was kept there for 4 or 5 days.

5 One day an Officer came to the centre. Three people were taken from the applicant's cell. They were told that they had been executed. The Officer asked the applicant why he was there and said he had information about the applicant, namely his collaboration with some Movement in the area which was anti- Government and anti- Minnawi. The applicant was made to sign a piece of paper stating that he would never cooperate with or supply goods to such groups against the Government and SLA/Minnawi. He was also to report immediately if he received any information from those movements. That night, 16 July, 2007, the applicant and two others were taken from the camp and left not far Labado.

6 The applicant made his way back to Muhajirya sought treatment for the beatings. He returned to Souk Market from time-to-time but did not resume selling in his shop for fear of the reaction of the insurgents if he refused to sell to them and the reaction of the government forces if he did so. On 8 October, 2007, while the applicant was at home there was an air bombardment in the market area. He went towards the market to see what was happening as his shop was there. He saw heavy artillery, military cars and Janjaweed coming from the South West side. He was unable to return home so he ran to the North West side, in the direction of Labado about 23 km away. He then smuggled himself on a maize truck to Nyala where he arrived that night.

7 He went to his supplier for his shop and told him if he was caught by the military forces he would be killed. He asked the supplier for money as he had already paid for goods which he had not yet received. He was afraid of staying in Nyala because the government forces might find him. The supplier found a truck driver to take the applicant to Port Sudan and the suppliers contact in Port Sudan arranged for him to stay with another person. The journey took eight days and he arrived in Port Sudan on 17 October, 2007, without any money. His goods supplier ultimately gave money owed to him (7,000 Sudanese pounds) to another driver and this was brought to the applicant. He spent eight days in Port Sudan. The applicant was reluctant to stay in Port Sudan because of the government army and intelligence presence and the fact that residents would report any strangers in the area.

8 The applicant gave the money he received to a trafficker. He left Port Sudan on 25 October, 2007. He changed ship at sea once and says he arrived in Ireland 25 days later on 20th November 2007. While on aboard the ship he got onto a truck and after an hour or an hour and a half after the truck disembarked the ship, the applicant jumped out of the truck. After making enquiries he was directed to the office of the Refugee Applications Commissioner.

Procedural History

9 The applicant applied for asylum on 20th November, 2007 and underwent a s. 8 interview on that date. An asylum questionnaire was completed on 29th November, 2007 and he underwent a s. 11 interview on 9th July, 2008.

10 The Commissioner's report is dated 17th and 21st July 2008.

Commissioner's Principal Findings

• The Commissioner was not convinced that having arrested the applicant, the government forces would have released him on the basis described by the applicant, if they believed he was a threat and supplying or supporting anti-government forces.

• According to the applicant, although sometimes unsure, a named individual [T] led the SLA/Minnawi in Muhajirya. According to country of origin information [T] was listed as the General Secretary of the SLA and as State Minister by decree of the President but there was no country of origin information linking him to the SLA/Minnawi in Muhajirya.

• The Commissioner found it contrary to common sense that during the bombardment and attack by the Janjaweed on 8 October, 2007, the applicant, notwithstanding his explanation that he had his shop there, would run towards the sounds of explosions.

• The Commissioner was not convinced by the applicant that he abandoned his family and could not stay in Nyala (where he had completed his military service) because of his fears that there were government forces there which might catch him. According to the COI account, the attack on Muhaiaiya was indiscriminate and directed towards the SLA (Minnawi) militia rather than targeted at individuals.

• The Commissioner was not convinced that the applicant's supplier was holding over 7,000 Sudanese pounds (approximately €2,000) worth of the applicant's money for torches and batteries from 26 June, 2007 when the applicant was detained, until 8 or 9 October, 2007 and in circumstances where the applicant had hardly traded in the interim.

• According to the applicant, his supplier was the same person who forwarded the applicant various documents but was unable to contact his family in Muhajirya as it was not safe.

• The Commissioner was not convinced that the applicant would not instead make his way to Chad, where there are many thousands of Sudanese in refugee camps, and which is only 250 kilometers from Nyala. Furthermore, the Commissioner was not convinced that the applicant had any need to leave Sudan once away from Darfur, despite his explanation.

• The Commissioner was not convinced, having considered the applicant's claim as stated in his Application Questionnaire and at interview, and having studied the applicant's demeanor at interview, that he suffered persecution in the past or was likely to suffer persecution in Sudan in the future. He was found not to be in need of international protection.

Notice of Appeal Submissions

11 The applicant appealed the Commissioner's findings on 16th August, 2008 and further appeal submissions dated 31st July 2009 were sent on...