K.N.Q v The Chairperson of the Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: MS JUSTICE M. H. CLARK,
• Judgment Date: 14 March 2013
• Neutral Citation: [2013] IEHC 117
• Docket Number: Record No. 139 J.R./2009
• Court: High Court
• Date: 14 March 2013

[2013] IEHC 117

THE HIGH COURT

Record No. 139 J.R./2009

Q (KN) [Iraq] v Chairperson of Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

Between:

K. N. Q. [IRAQ]

APPLICANT

-AND-

THE CHAIRPERSON OF THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND MICHELLE O'GORMAN SITTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11

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

S (ETHIOPIA) v SECRETARY OF STATE FOR THE HOME DEPT 2007 IMM AR 7 2007 INLR 60 2006 EWCA CIV 1153

REFUGEE ACT 1996 S16(8)

K (G) v MIN FOR JUSTICE 2002 1 ILRM 81

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

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 REG 5(2)

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

Asylum & Immigration law - Judicial review - Iraq - Political opinion - Age - Core claim - Death certificate - Medical treatment - Delay - Whether decision of the Tribunal needed to be quashed

Facts: The applicant was a national of Iraq and sought refugee status on the basis of political opinion. The applicant sought an order of certiorari quashing the decision of the respondent affirming a recommendation refusing to grant the applicant refugee status. He alleged that the decision-maker had not actually considered his core claim, that the interview had been conducted without regard for his age, 17 years, that there had been significant delay in notifying the applicant of the decision, that a death certificate submitted as to his father was dismissed as to its veracity as well as the failure to consider a lack of medical treatment as significant.

Held by M.H. Clarke J. that the Court would quash the decision of the respondent Tribunal and direct that a fresh appeal be conducted before a different decision maker. It was regrettable that the applicant was treated as an adult. The Tribunal member paid scant attention to the death certificate. The decision was based on peripheral findings rather than an assessment of the well-roundedness of the asserted fear. The arguments as to delay and a lack of medical treatment were not persuasive on a stand-alone basis.

MS JUSTICE M. H. CLARK,

1 In this case the applicant seeks an order of certiorari quashing the decision of the of the Refugee Appeals Tribunal dated the 18^th December, 2008 affirming the recommendation of the Refugee Applications Commissioner dated the 22^nd October, 2007 that the applicant should not be granted refugee status.. With the consent of both parties, the application for leave was treated as the application for judicial review by way of a single telescoped hearing.

2 The applicant is a national of Iraq who arrived in Ireland on the 13^th May, 2007. He applied for refugee status on the 21^st May, 2007 claiming that he would be persecuted by reason of his imputed political opinion and / or membership of a particular social group if returned to Iraq. He presented to the Office of the Refugee Applications Commissioner (ORAC) as a 17-year old unaccompanied minor and he submitted an Iraqi national identity card in support of his age and identity. He was quite ill at the time and requested medical assistance. 1 The Commissioner questioned the validity of his identity

card and that document was therefore deemed insufficient evidence of his age. An age assessment was carried out on the 16^th May, 2007 by two named persons whose qualifications to make such assessments was not stated. They found that the applicant was not a minor. A social worker attached to the Health Service Executive (HSE) sought, on the applicant's behalf, a reassessment of this decision regarding his status as a minor and expressed concerns relating to the validity of the finding that he was over 18 years. Such reassessment was refused unless the applicant could produce further documentation to support his claimed age. He was unable to procure further documentation. The Court has serious misgivings as to the fairness of the procedure or the competence of the assessors who conducted this age assessment, which will be further discussed later in this judgment.

3 The applicant's claim involves the following asserted facts: he is an Iraqi national of Kurdish ethnicity born on the 11^th April, 1990. His father was a high-ranking member of the military in the Ba'ath party in Kirkuk. Following the fall of Saddam Hussein's regime in 2003 his father's position as a former Ba'athist was not secure and he came under threat. He and the family received multiple death threats. The applicant did not go to school since 2003 and the family lived within an enclosed house at an identified address. In October, 2006 he opened the gate to their compound in response to a signal from his father who was driving his car with his uncle. However, terrorists were waiting for the gate to open and a shooting and grenade attack ensued, during which the applicant's father and uncle were shot dead and the applicant was injured. The applicant was rendered unconscious through shrapnel injury to his head and legs and woke in hospital where he found that his foot was injured and he was deaf. He and his remaining family members received no assistance once it was discovered that his father was in the Ba'ath Party. He continues to suffer severe hearing loss as a result of being close to the grenade explosions. His family moved him to the home of one of his father's Arab friends where he remained for six months without any medical treatment and in fear of going outside. His mother and sisters remained in the family home in mourning. As a member of a well-known Ba'ath party family, terrorist groups sought to enlist the applicant to attack the American military in Iraq. Having received threatening letters he fled Iraq on or about the 22^nd April, 2007 travelling first into Syria and then onwards to Turkey. He was then hidden in a container truck until he arrived into Ireland. He was in pain and very ill for the journey and was unable to walk. He had left behind or lost his bag containing clothes, medicines and documents relating to his father's position when he was travelling from Syria to Turkey.

4 The Commissioner rejected the applicant's credibility as did the respondent Tribunal on appeal. The applicant instituted proceedings some 26 days out of time. At the hearing of the application for judicial review the Court exercised its jurisdiction to extend the time due to the extreme difficulties experienced by the applicant.

5 In his s. 13 report the Commissioner observed that the applicant had not submitted any police report, medical evidence,2 threatening letters or a death certificate relating to his father, nor any documents to corroborate his claim that his father was a member of the Ba'ath party. The applicant's Notice of Appeal to the Tribunal raised the issue of the inadequacy of the age assessment conducted and submitted that his s. 11 interview with ORAC was unfair and oppressive in that although he was deaf and a minor he had no assistance, advice or representation at the interview as would occur if he were treated as a minor. It was submitted that it would therefore be unfair to make a negative recommendation to the Minister in relation to his claim for refugee status on the basis of findings made by the authorised officer conducting the s. 11 interview. Country of origin information (COI) was provided to the Tribunal Member outlining the high incidence of revenge killings on former Ba'ath party members in Iraq and deliberate attacks on Iraqi civilians by insurgent groups. The COI named Kirkuk as being a city in "the triangle of death" and stated that the Iraqi authorities could do little to stop these activities. The COI further stated that the security situation and human rights abuses have worsened in southern and central Iraq and especially in the Mosel / Kirkuk area and that the UNHCR recommended favourable consideration of asylum seekers from this area in its report of December 2006.

6 The impugned Tribunal decision recounts the presentation and cross-examination of the applicant's claim at the oral hearing. The cross-examination indicates a highly

2 adversarial style with questions focussed on the details of the attack on his father's car, the likely injuries his father would have suffered if the car had exploded, the insignia on his late father's uniform, the identity of the attackers, the threats his father had received, the threats he had received and why terrorists would be interested in him once they had killed his father. The applicant was questioned regarding the sale of a family property to fund his travel, why both houses were not sold and why the family did not go to Iran, whether he could speak Arabic and whether his family could have sought refuge with his father's Arab friend who harboured the applicant after the attack on his father. He was also questioned about his travel, the loss of his bag containing documents and why he did not seek asylum in Turkey.

7 The Tribunal Member stated that she would approach the appeal on the basis of the UNHCRGuidelines on the treatment of refugee applicants who are minors at interview. She quoted from those Guidelines in relation to the liberal application of the benefit of the doubt and referred to the UN Convention on the Rights of the Child and to the Statement of Good Practice of the Separated Children in Europe Programme. The Tribunal Member then went on to quote from the Refugee Act 1996 and from the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. 518 of 2006) with regard to the burden of proof, credibility and assessment of facts and circumstances and the standard of proof as if the applicant were being treated as an adult, which he undoubtedly was at...