K (T) v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 09 February 2011
• Neutral Citation: [2011] IEHC 99
• Court: High Court
• Date: 09 February 2011

[2011] IEHC 99

THE HIGH COURT

[No. 1025 J.R./2009]

K (T) v Min For Justice

BETWEEN

T. K.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S5

MEADOWS v MIN FOR JUSTICE & ORS UNREP SUPREME 21.1.2010 2010 IESC 3

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S2

O v MIN FOR JUSTICE & ORS [BABY O CASE] 2002 2 IR 169

P (F) v MIN FOR JUSTICE 2002 1 IR 164

IMMIGRATION ACT 1999 S3(6)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

IMMIGRATION

Deportation

Refoulement - Fear of persecution and ill-treatment if returned to country of origin - Asylum refused - Deportation of applicant ordered by respondent - Whether plausible that prohibition on refoulement engaged - Respondent obliged to provide coherent reason justifying conclusion - Whether respondent gave any or any adequate reasons to support conclusion that deportation would not be contrary to prohibition on refoulement - Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3 (Unrep, SC, 21/1/2010) considered - Refugee Act 1996 (No 17), s 5 - Relief granted (2009/1025JR - Hogan J - 9/2/2011) [2011] IEHC 99

K(T) v Minister for Justice, Equality and Law Reform

Facts The applicant arrived in the State from Togo and claimed asylum. The Office of the Refugee Applications Commissioner rejected the application which was confirmed on appeal by the Refugee Appeals Tribunal. Both the Commissioner and the Tribunal found against the applicant on credibility grounds. The applicant brought judicial review proceedings against the refusal. The net issue in the proceedings was whether the respondent Minister gave adequate reasons to support the conclusion that it would not be contrary to the prohibition on refoulement contained in s. 5 of the Refugee Act 1996 ("the 1996 Act") to deport the applicant. The applicant's case was that he feared persecution and ill-treatment (and worse) if he was returned to Togo and maintained that he and his family had a long standing opposition to the ruling regime in Togo.

Held by Hogan J in finding in favour of the applicant. The court could not agree with the view of the Tribunal member that the applicant's departure from Togo could never amount to persecution simply because he had never been "arrested, detained or questioned by the authorities during this time. The reasoning of the Minister in the present case was at best ambiguous. Given the country of origin information regarding Togo and the applicant's account of his necessity to flee that country, the Minister was obliged to state why the conclusion was reached that repatriation to Togo would not infringe s. 5 of the 1996 Act. The reasons thus given did not satisfy the requirements laid down by the majority of the Supreme Court in Meadows [Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3] and the decision of the Minister to deport the applicant would be quashed.

Reporter: R.F.

1 1. The net issue in these judicial review proceedings is whether the respondent Minister for Justice, Equality and Law Reform gave any or any adequate reasons to support the conclusion that it would not be contrary to the prohibition on refoulement contained in s. 5 of the Refugee Act 1996 ("the 1996 Act")to deport the applicant. The answer to this question turns in many ways upon a consideration of what the Supreme Court actually decided in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, the implications of which I will presently consider.

2 2.The deportation order in the present case was signed by the respondent Minister on 20 ^th August 2009 and it contains the standard recitals (…whereas the provisions of section 5 (prohibition of refoulement) of the Refugee Act 1996…are complied with in the case of [T.K]....") regarding compliance with the requirements of s. 5 of the 1996 Act The file note of August 18, 2009 - which contained the relevant analysis required for the purposes of s.3 of the 1999 Act - set out the background facts and the relevant country of origin information before concluding thus:-

"Having considered all of the facts of this case, I am of the opinion that repatriating [TK] to Togo is not contrary to s. 5 of the Refugee Act 1996, as amended."

3 3. The applicant claims to be from Togo. He arrived in Ireland in October 2005 and claimed asylum. The Office of the Refugee Applications Commissioner rejected the application on 15 ^th December, 2005, and this rejection was subsequently confirmed on appeal by the Refugee Appeals Tribunal on 13 ^th April, 2006. These decisions have never been challenged by way of judicial review and both the Commissioner and the Tribunal found against the applicant on credibility grounds.

4 4. The applicant's case is that he fears persecution and ill-treatment (and worse) if he is returned to Togo. There is no question at all but that the record of the Togolese Government in matters of civil liberties and human rights leaves a very great deal to be desired. The country of origin information shows that while the human rights condition have improved somewhat in recent years, very serious problems remain. The US Department of State's Report for 2009 observed that these problems included:

"partial inability of citizens to change their government; torture and other abuse of detainees, rape; official impunity; harsh and life-threatening conditions; arbitrary arrests and detention; lengthy pretrial detention; executive influence over the judiciary; infringement of citizens' privacy rights; restrictions on the press, including banning media programs; restrictions on freedom of assembly and movement; corruption; female genital mutilation and violence against women; discrimination against women; regional and ethnic favoritism; trafficking in persons, especially children; child labor, including forced child labor; and lack of workers' rights in export processing zones."

5 5. The applicant maintains that he and his family have a long standing opposition to the ruling regime in Togo. It appears that Mr. K. left Togo for Nigeria in 1992 and thereafter returned to Togo in 1994. In 1996 he moved to Gabon and thereafter he emigrated to Italy where he stayed between 2001 and 2005. Mr. K. then returned to Togo for a short period in the aftermath of the disputed presidential elections in April, 2005.

6 6.Mr. K. then contends that when he returned to Togo he became involved in the widespread protests and demonstrations which erupted in Lome following the results of these elections. These included tyre burning, road blocking and stone throwing. When the situation became increasingly violent he decided to go home. Mr. K. then contends that he then met the wife of a relative who told him not to go home because the soldiers of the FAT ( Forces Armées Togolaises) were at his home looking for him. He then contends that he then met an individual, Etienne, whom he knew he was a member of the Government party, RPT ( Rassemblement du Peuple Togolais). Etienne agreed to go to Mr. K.'s home to ascertain what the position was. Eitienne met two soldiers just as they were leaving the house who asked him for identity documents. He produced a card showing his membership of the RPT and the soldiers then departed.

7 7. Etienne was told by Mr. K.'s wife that the soldiers beat her and her father in law (who had been staying with them) when they said that Mr. K. was not at home. Etienne further reported that both were badly bruised and that the soldiers had said to Mr. K's father that he had sent his son out to throw stones at him. Mr. K. then decided not to return home, but said that he used travel documents which had been given to him by the Togolese Embassy in Rome to travel to Ghana from whence he travelled to Ireland via Naples. Mr. K. also said that he spoke with his wife from Ghana who confirmed Etienne's account and that the soldiers were still coming to look for him.

8 8. If this account were to be believed, it would be capable of grounding a well-founded fear of persecution within the meaning of s. 2 of the 1996 Act. Section 2 defines "a refugee" as meaning:

"a person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or, owing to such fear, is unwilling to return to it...."

9 9. In this respect, I cannot agree with the view expressed by the Tribunal member in his decision of 13 ^th April, 2006, insofar as he suggested that the applicant's departure from Togo could never amount to persecution simply because he had never been "arrested, detained or questioned by the authorities during this time". Unfortunately, all too many historical examples could be given of persons who fled to safety from odious regimes who could nonetheless justly claim the protections of the Geneva Convention even though they had never actually been arrested, detained or questioned by the authorities - this was, for instance, the position of many refugees from the German Democratic Republic who had escaped to safety prior to German unification. If Mr. K.'s account is to be believed - and here it must be borne in mind his claim was rejected both at first instance and on appeal on credibility grounds - he could not be expected to have returned to his home to await a beating (and perhaps worse) at the hands of soldiers of the FAT.

10 10. The question of whether the applicant has a plausible case that the prohibition on refoulement is engaged is of some...