Khazadi v Minister for Justice, Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 02 May 2006
• Neutral Citation: [2006] IEHC 175
• Date: 02 May 2006
• Court: High Court
• Docket Number: [No. 881 J.R./2005]

[2006] IEHC 175

THE HIGH COURT

[No. 881 J.R./2005]

KHAZADI v MIN FOR JUSTICE & ORS

JUDICIAL REVIEW

BETWEEN

RAPHAEL MALANJI KHAZADI

APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND PAUL McGARRY, REFUGEE APPEALS TRIBUNAL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S11

G v DPP 1994 1 IR 374

REFUGEE ACT 1996 S11(b)

R v IMMIGRATION APPEALS TRIBUNAL EX PARTE AHMED 1999 INLR 473

HORVATH v SECRETARY OF STATE FOR THE HOME DEPARTMENT 1999 INLR 7

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL UNREP HIGH PEART 9.7.2004 (EX TEMPORE)CAMARA v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY UNREP HIGH COURT KELLY 26.7.2000 2000/4/1247

O'KEEFFE v AN BORD PLEANALA 1993 1 IR 39

ZHUCHKOVA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 26.11.2004 2004/51/11705

EX TEMPORE JUDGMENT delivered by

Mr. Justice John MacMenamin

1 on Tuesday the 2nd day of May, 2006.

2 This is an application for leave to issue judicial review in a matter to which s. 5 of the Illegal Immigrants Trafficking Act2000 applies. Accordingly the applicant must firstly bring this application within 14 days from the date of the decision challenged unless the court considers there is good and sufficient reason for extending the time. The decision was issued to the applicant on 20^th June, 2005. On 5^th August, 2005 the statement required to ground application for judicial review was filed in the Central Office of the High Court. On instructions counsel for the respondent has indicated that no point is made in relation to the extension of time and consequently I am prepared to extend up to and including the 5^th August, 2005.

3 The second requirement of s. 5 of the Act of 2000 is that the applicant establishes that there are substantial grounds. This has been interpreted by the Supreme Court in the Article 26 reference to meaning that the grounds should be reasonable arguable or weighty and that they should not be trivial or tenuous.

4 A further requirement which must be complied with is the test established by the Supreme Court inG. v. The Director of Public Prosecutions [1994] 1 I.R. 374, applying that test to the substantial grounds criterion set in s. 5 of the Act of 2000 the applicant must establish inter alia that the facts averred to would be sufficient if proved to support substantial grounds for the form of relief sought by judicial review and that on those facts substantial ground in law can be made out whereby the applicant is entitled to the relief which he seeks.

5 The applicant is a male citizen of the Democratic Republic of the Congo. He was born in Kananga on 30^th September, 1972. He states he fled his country in July 2003 as a result of a fear of persecution arising from his work as a TV journalist and the expression of political criticism through television shows with which he is involved. He arrived in Ireland of July 2003 and applied for asylum. Having undergone interview pursuant to s. 11 of the Act, the application was rejected by the Refugee Applications Commissioner. Thereafter the applicant instructed the Refugee Legal Service in Cork to represent him for the purposes of the appeal. The hearing of the appeal was conducted by the second named respondent a member of the Refugee Appeals Tribunal. The applicant was represented by counsel in the course of the hearing. On 20^th June, 2005 the decision of the second named respondent was issued to the applicant refusing his application for refugee status.

6 The applicant seeks leave to bring judicial review proceedings on the grounds

7 (a) that the applicant failed to take into account relevant considerations

(b) committed errors of law

(c) made unreasonable findings and

8 (d) failed to act in accordance with the precepts of constitutional and natural justice.

9 I will consider each of these issues in turn. But in order to do so it is necessary to advert to specific elements of the second named respondents findings.

10 In the course of a tribunal members findings he referred to a number of medical reports from Cork University Hospital and SPIRASI, an organisation for the treatment of victims of torture, a certificate and birth certificate obtained by the applicant from the Democratic Republic of the Congo; a copy of the applicant's identification card, a medical report from Dr McAuliffe (a General Practitioner) and a number of other sources including newspapers, UK Home Office reports, a report from prisons in the Democratic Republic of Congo from the Congalise Irish Partnership and reports from a number of other organisations including Medecins Sans Frontiers.

11 The applicant states that he was employed as a supervisor of programming at the Congalese National Television station. He was a qualified engineer and his job was essentially that of maintenance engineer and supervisor of news broadcasting at RTNC (Congalise National Radio Television) in Kinshasa for approximately four years from 31^st January, 1999 until his alleged arrest on 14^th May, 2003.

12 The applicant states on 14^th May, 2003 he was arrested at the television station by special police and was taken to Kokolo a military camp where he spent one night. The following day he states he was transferred to the GLM (Group Litho Moboti Gombe Commune) where he was detained for 63 days until the night of 17^th/18^th July, 2003 when he states a Colonel in the army helped get him out. On the following date, the 18^th July, 2003 the applicant claimed that he left Kinshasa, travelled to Congo/Brazzaville where he remained for four days. On 22^nd July, 2003 the applicant flew to Paris where he transited before travelling to Ireland arriving in this jurisdiction on 23^rd July, 2003 on which date he sought asylum.

13 The applicant states that his arrest on 14^th May, 2003 following the broadcasting at 6 p.m. on the RTNC of photographs of a massacre at Tingi-Tingi in April 1997 without the approval of the relevant minister. According to the applicant an AFTL (Alliance de Forces Democratique Pour la Liberation du Congo) reporter had given these photographs to the editors at the station and they broadcast on 14^th May, 2003. The applicant states that President Joseph Kabila who was just a solider at the time was present at the massacres in Tingi-Tingi and was actually shown in one of the photographs of the massacres that were broadcast at the relevant time.

14 During the alleged detention at the GLM the applicant claimed that he suffered constant torture which included being hit with military belts and military wire. He claimed that a device was placed on his body which dug into his skin and left marks which he states are still visible. He stated one of the fingers on his left hand was also broken during the alleged torture and that he could not still bend it properly. The applicant stated that he was under constant threat of execution and was subjected to torture every day three times a day and sometimes again during the course of the night. He stated during the course of interview at one point he suffered a rectal prolapse from which he still suffers bleeding. The applicant claimed that he had been interrogated on one occasion only. On that occasion he was asked why he had distributed photographs of the massacre without the Minister's approval, and why he had authorised the filming of a press conference denouncing the President of the Republic as being the son of a Rwanda Tutsi. He was also asked about a broadcast which he had authorised in relation to a mission to stop an opposition leader preaching against the government.

15 The applicant also stated that he had been arrested twice before the first occasion being the 5^th September, 1999 and the second the 23^rd February, 2003. On the latter occasion there appears to have been a dispute where a minister of the DRC was seeking to obtain television equipment in order to set up his own television station.

16 During the course of the hearing before the second named respondent it was put to the applicant that country of origin information indicated that no massacre occurred in April 1997 at the camp in Tingi-Tingi although there were serious problems with conditions in refugee camps in the area around that time. The decision states "the applicant stated he does not know about this". It should be pointed out that in this particular there appears to have been a basis for the finding made by the tribunal member during a three week period prior to April 1997 a substantial number of people had died at the camp in Tingi-Tingi but not while it was in control of the government forces. A second issue which arose was whether the camp in which the applicant stated he was detained was any longer operational at the time he alleged he was detained there. The applicant stated that the government had declared it was closed but that it was still in use. The applicant was also asked why, if he held such a high profile job in the television station his name did not appear anywhere as a person who suffered torture in the light of documentation obtained by amnesty and other human rights organisations that list the names of journalists that have been targeted.

17 The applicant stated that because the television challenge was controlled by the government of the army no person would know that he had been arrested and detained and it would not therefore feature in any international report. The applicant also stated that he feared that he would be killed if he returned to the Democratic Republic of the Congo following his escape from the GLM camp.

18 In the course of his decision the second named respondent makes a number of findings on the issue of credibility. First he...