K (M) v Refugee Appeal Tribunal & Others

JurisdictionIreland
JudgeMr. Justice McCarthy
Judgment Date31 July 2008
Neutral Citation[2008] IEHC 294
CourtHigh Court
Docket Number[No.861JR/2006]
Date31 July 2008

[2008] IEHC 294

THE HIGH COURT

[No.861JR/2006]
K (M) v Refugee Appeals Tribunal & Min for Justice

BETWEEN

M. K.
APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENTS

O'KEEFFE v BORD PLEANÁLA 1993 1 IR 39

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

I (CO) v MIN FOR JUSTICE UNREP HIGH MCGOVERN 2.3.2007 2007/29/5917

N (BJ) v MIN FOR JUSTICE & ORS UNREP HIGH MCCARTHY 18.1.2008 2008 IEHC 8

R v SECRETARY OF STATE FOR THE HOME DEPT (EX PARTE ONIBIYO) 1996 QB 768

GASHI v MIN FOR JUSTICE & ORS UNREP HIGH CLARKE 3.12.2004 2004/19/4277

IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HIGH CLARKE 10.5.2005 2005/31/6357

O (A) & L (D) v MIN FOR JUSTICE 2003 1 IR 1

Z v MIN JUSTICE 2002 2 ILRM 215

LAURENTIU v MIN FOR JUSTICE 1999 4 IR 26

R (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPT 2001 1 WLR 840

REFUGEE ACT 1996

IRISH TRUST BANK v CENTRAL BANK OF IRELAND 1976-7 ILRM 50

IMAFU v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (O'BRIEN) UNREP HIGH CLARKE 27.5.2005 2005/31/6380

CARCIU v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HIGH FINLAY-GEOGHEGAN 4.7.2003 2003/8/1638

BISONG v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (GARVEY) UNREP HIGH O'LEARY 25.4.2005 2005/4/814

T (G) v REFUGEE APPEALS TRIBUNAL UNREP HIGH PEART 27.7.2007 2007 IEHC 287

KIKUMBI v REFUGEE APPLICATIONS COMMISSIONER & MIN FOR JUSTICE UNREP HIGH HERBERT 7.2.2007 2007 IEHC 11

KRAMARENKO v REFUGEE APPEALS TRIBUNAL & ORS 2005 4 IR 321

MEMISHI v REFUGEE APPEALS TRIBUNAL & ORS UNREP HIGH PEART 25.6.2003 2003/35/8424

R v IMMIGRATION APPELLATE AUTHORITY (EX PARTE MOHAMMED) 1999 EWHC ADMIN 823

ROSTAS v REFUGEE APPEALS TRIBUNAL (HAYES) & MIN FOR JUSTICE UNREP HIGH GILLIGAN 31.7.2003 2003/46/11163

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 2ED 1992 PARA 51-53

GOODWIN-GILL THE REFUGEE IN INTERNATIONAL LAW 2ED 1996

IMMIGRATION

Asylum

Judicial review - Leave - Decision of RAT - Delay - Extension of time - Alleged breach of fair procedures - Whether irrelevant material taken into consideration - Whether failure to take all relevant material into consideration - Assessment of credibility - Whether substantial grounds for review - Applicable test - Whether test of anxious scrutiny appropriate - Departing from decision of court of coordinate jurisdiction - Whether errors in assessment of credibility - Whether manifest errors of fact - Whether decision fundamentally flawed - Whether wrongful reliance on matters within personal knowledge - Opportunity to deal with apparent inconsistencies - Failure to address issue during hearing - Whether want of credibility relied upon in decision - Test for persecution - Meaning of persecution - Need to show sustained or systematic risk of harm - Country of origin information - O'Keeffe v An Bord Pleanála [1993] 1 IR 39 and The State (Keegan) v Stardust Compensation Tribunal [1986] IR 642 applied - COI v Minister for Justice (Unrep, McGovern J, 2/3/2007), R v Home Secretary (ex parte) Boonibyo [1996] QB 768, BJN v Minister for Justice (Unrep, McCarthy J, 18/1/2008), Gashi v Minister for Justice (Unrep, Clarke J, 3/12/2004), Idiakhua v Minister for Justice (Unrep, McCarthy J, 10/5/2005), AO v Minister for Justice [2003] 1 IR 124, Z v Minister for Justice [2002] 2 ILRM 215, Laurentiu v Minister for Justice [1999] 4 IR 26, R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840, Irish Trust Bank Limited v Central Bank of Ireland [1976] ILRM 50, Imafu v Minister for Justice (Unrep, Clarke J, 27/5/2005), Carciu v Refugee Appeals Tribunal (Unrep, Finlay Geogeghan J, 4/7/2003), Bisong v Refugee Appeals Tribunal (Unrep, O'Leary J, 25/4/2005), Tabi v Refugee Appeals Tribunal (Unrep, Peart J, 27/7/2007), Kikumbi v Refugee Applications Commissioner (Unrep, Herbert J, 7/2/2007), K v Refugee Appeals Tribunal [2005] 4 IR 321, Memshi v Refugee Appeals Tribunal (Unrep, Peart J, 25/6/2003), NK v Refugee Appeals Tribunal [2005] 4 IR 321, R v Immigration Appellate Authority, ex parte Mohammed (Unrep, Newman J, 14/10/1999), Re D [1995] 4 All ER and Rostas v Refugee Appeals Tribunal (Unrep, Gilligan J, 31/7/2003) considered - Leave refused (2006/861JR - McCarthy J - 31/7/2008) [2008] IEHC 294

K(M) v Refugee Appeals Tribunal

Facts: The applicant sought leave to quash a decision of the respondent Tribunal refusing his application for refugee status. The Tribunal had concluded that the account provided by the applicant to it was inconsistent with the account as to torture given in a questionnaire and that he had been evasive. The applicant had been unable also to provide details concerning his flight from Ethiopia. The applicant alleged that the first named respondent had taken irrelevant material into account and had also failed to take relevant evidence into account, thereby in breach of fair procedures and not in accordance with natural and constitutional justice. The applicant alleged that his limited knowledge of tribal languages derived from his limited experiences and travel prior to his flight.

Held by McCarthy J. that there was no basis for saying that the first named had erred in the principles applied. The applicant had been afforded ample opportunity to address the concerns of the respondent. A language difficulty was not sufficient to undermine a capacity to detail airports through which the applicant had passed. There was ample evidence from which an adverse view of credibility could be formed. A challenge on the merits could not now be re-entered.

Reporter: E.F.

Judgment of
Mr. Justice McCarthy
1

delivered the 31st day of July 2008.

2

1. These proceedings were commenced by originating notice of motion dated 18th July, 2006, whereby the applicant seeks leave to apply for inter alia an order of certiorari quashing the decision of the first named respondent ("the Tribunal) made on 19th June, 2006, whereby it held that the applicant was not a refugee and affirmed the recommendation of the Refugee Applications Commissioner refusing him a declaration to that effect. The Statement required to ground the application and the applicant's grounding affidavit are dated the 18th July, 2006. In the event that the decision of the Tribunal is quashed further relief is sought. That decision was sent to the applicant under cover of a letter of the 27th June, 2006, received the following day. The time within which the present application ought to have been made expired on 6thJuly, 2006, but I am satisfied that the time for it should be extended up to and including the 18th July, 2006, on the grounds that the decision was not given to the applicant's present solicitors, he having changed solicitors in the interim period and thereafter time was needed to decide how the applicant could best proceed in the light of the Tribunal's decision, including consideration with the benefit of the advice of counsel and, of course, it having been determined to make the present application, time was needed to prepare it. The delay, in any event, is extremely modest. The grounds relied upon by the applicant are as follows:-

3

i "i. The decision of the first named respondent at page 2 states,inter alia, that "the applicant said that before they left he police station, they had signed a paper which undertook that they would present themselves again if they were so requested. The Tribunal notes that this account is inconsistent with the account which g he gave of these events in his application questionnaire…He was asked to account for this inconsistency and did not do so. He was both evasive and denied that here was any difference in the account." The details of the arrest and detention and torture given by the applicant in his written questionnaire are entirely consistent with the account given by him at both interviews with the Refugee Application Commissioner and in evidence to the first named respondent. Accordingly, the first named respondent has no basis upon which to make the above contention and same is illogical and flies in the fact of all the evidence and the said decision is made in breach of fair procedures thereby.

4

ii ii. The conclusion numbered 3 of the first named respondent at page 5 of the said decision states,inter alia, that the applicant purportedly gave two accounts of how he and his brother were released after three days in custody. The applicant's account in his written questionnaire was that both he and his brother had to sign a document to be released and the detail as to his father's friend paying a bribe was included in both of his interviews with the Refugee Applications Commissioner and at the oral hearing before the first named respondent and there is no discrepancy between any of the material or evidence before the first named respondent in this respect. Accordingly, the first named respondent took irrelevant material into consideration in breach of fair procedures and the applicant's right to have his said appeal determined in accordance with the precepts of natural and constitutional justice. Moreover, the said decision is irrational.

5

ii The conclusion number 4 of the first named respondent at page 5 of the said decisions states,inter alia, that there is no evidence to support the applicant's express fear that he will be killed because of his imputed political opinion. There was ample evidence before the first named respondent to support the applicant's fears in this respect. For example, the applicant gave evidence that both he and his brother were arrested because the police wished to find his father, who was a member of the Oromo Liberation Front for that reason. There was ample evidence before the first named respondent that when the applicant's father was arrested on the 25th December, 2004, the police parked outside the...

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