L (an) v Refugee Appeals Tribunal (Garvey) and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 08 April 2011
• Neutral Citation: [2011] IEHC 181
• Date: 08 April 2011
• Court: High Court

[2011] IEHC 181

THE HIGH COURT

[No. 995 J.R./2008]

L (AN) v Refugee Appeals Tribunal (Garvey) & Ors

JUDICIAL REVIEW

BETWEEN

A.N.L.

APPLICANT

AND

BEN GARVEY ACTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

FIRST NOTICE PARTY

AND

IRELAND AND THE ATTORNEY GENERAL

SECOND NOTICE PARTY

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(B)

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

MCNAMARA v BORD PLEANALA 1995 2 ILRM 125

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S11A(3)

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

UNHCR HANDBOOK PART II

E (M) v REFUGEE APPEALS TRIBUNAL & ORS UNREP BIRMINGHAM 27.6.2008 2008/22/4746 2008 IEHC 192

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL (HURLEY) & MIN FOR JUSTICE UNREP PEART 9.7.2004 2005/15/3102 2004 IEHC 436

REFUGEE ACT 1996 S16(16)(D)

REFUGEE ACT 1996 S16(16)(E)

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

IMAFU v MIN FOR JUSTICE UNREP CLARKE 27.5.2005 2005/31/6380 2005 IEHC 182

KIKUMBI v REFUGEE APPLICATIONS COMMISSIONER UNREP HERBERT 7.2.2007 2009/31/ 7713 2007 IEHC 11

R (I) v MIN FOR JUSTICE UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

IMMIGRATION LAW

Asylum

Refugee - Function of Tribunal - Speculation - Adverse credibility finding by Tribunal - Whether decision based on speculation - Use of country of origin information - Whether failure to consider and weigh country of origin information - Whether errors of fact undermined decision - Whether substantial grounds - The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 applied; McNamara v An Bord Pleanála [1995] 2 ILRM 125 approved; E(M) v Refugee Appeals Tribunal [2008] IEHC 192, (Unrep, Birmingham J, 27/6/2008); Da Silveira v Refugee Appeals Tribunal [2004] IEHC 436, (Unrep, Peart J, 9/7/2004); Imafu v Minister for Justice [2005] IEHC 182 (Unrep, Clarke J, 27/5/2005); Kikumbi v Refugee Applications Commissioner [2007] IEHC 11 (Unrep, Herbert J, 7/2/2007); R(I) v Minister for Justice [2009] IEHC 353 (Unrep, Cooke J, 24/7/2009) approved - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), r 5 - Refugee Act 1996 (No 17) ss 8, 11 and 16 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Leave to seek judicial review refused (2008/995JR - Herbert J - 8/4/2011) [2011] IEHC 181

L(AN) v Refugee Appeals Tribunal

1 JUDGMENT of Mr. Justice Herbert delivered the 8th day of April 2011

2 The applicant, A.N.L. seeks leave of this Court pursuant of the provisions of s. 5(2)(b) of the Illegal Immigrants (Trafficking) Act 2000, to apply for an order of certiorari by way of judicial review that the decision of the respondent made on the 27 ^th June, 2008, affirming the recommendation of the Refugee Applications Commissioner made on the 19 ^th September, 2007, that the applicant should not be declared to be a refugee, be delivered up and quashed and, the matter remitted for reconsideration by the respondent. This subsection provides that such leave shall not be granted by this Court unless it is satisfied that there are substantial grounds for contending that the decision of the respondent is invalid or ought to be quashed. In Re. Ref. S.S. 5 and 10 Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360 at 394/5, Keane C.J. adopting the earlier definition by Carroll J. ( [1995] 2 I.L.R.M. 125) held that the Court must be satisfied that reasonable, arguable and weighty grounds and, not just trivial or tenuous grounds have been shown.

3 It was submitted on behalf of the applicant that the decision of the respondent, that the applicant lacked personal credibility which brought into question the legitimacy of her claim to a well-founded fear of persecution in her country of nationality for reasons of political opinion, (actual and inferred) and membership of a particular social group, to wit, ex-partners of leading political persons who can abuse power, was made in excess of jurisdiction as based upon speculation, errors of fact, failure to properly consider and weigh the evidence and selective use of country of origin information. It was submitted on behalf of the respondent and the notice parties that the decision of to the respondent was intra vires, reasonable, rational and, in accordance with common sense and, that the applicant had failed to demonstrate reasonable, arguable and weighty grounds to the contrary.

4 The member of the respondent set out extensively in his decision the reasons why he had concluded that the applicant was not personally believable. The member of the respondent correctly noted that available country of origin information established that A.M. is a leading member of the political party now in power in the applicant's country of nationality and origin. That A.M. is a member of the Presidential Guard and was a former aide-de- camp to the President. The member of the respondent further correctly found that the available country of origin information established that S.B. was a leading member of a different political party which had a share of power prior to July 2006 and was a very senior ranking officer in the armed forces of that country. The member of the respondent also correctly noted that the available country of origin information recorded that S.B. had died on the 4 ^th July, 2006, and had been buried without an autopsy being carried out. The court is quite satisfied that each of these findings was made intra vires.

5 The applicant claims to have had an intimate relationship with A.M. from September 2002 to a date in 2005. She asserts that in December 2003, she became friendly with S.B. who paid court to her. They became lovers in May 2004 and this had continued up to the date of his death on the 4 ^th July, 2006. They did not live together, but the applicant states that S.B. enabled her to set up in a business importing products from Dubai for sale in the city in which they both resided. She had travelled to Dubai on business between November 2004 and January 2005 and had returned home in February 2005. She had a passport and had obtained a visa for the purpose of travel to Dubai. The applicant claimed that when she ended her relationship with A.M. he had threatened her.

6 In his decision the member of the respondent noted that the applicant when asked by the Refugee Appeals Tribunal about the nature of these threats was unable to elaborate and had simply stated that A.M. was jealous. The member of the respondent further noted that the applicant had told the Refugee Appeals Tribunal that her relationship with A.M. had ended early in 2005. The member of the respondent noted that it had been put to her by the Presenting Officer during the course of the oral hearing before the Refugee Appeals Tribunal, that in the course of her interview conducted in accordance with the provisions of s. 11 of the Refugee Act 1996 (as amended) she had told the interviewing officer that this relationship with A.M. had ended at the end of 2005. The member of the respondent noted that the applicant had responded that this was an error on the part of the interpreter. The member of the respondent noted that the applicant was unable to explain why she had not corrected this alleged error when this answer had been read back to her at the time as she had certified by her signature at the foot of the relevant page of the Record.

7 The member of the respondent noted that even though the applicant claimed to have been involved in intimate relationships with these two very powerful men between September 2002 and July 2006, she had offered nothing at all to substantiate this claim, for example some keepsake or note or photograph. The member of the respondent further noted that when asked at the oral hearing before the Refugee Appeals Tribunal about the passport on which she claimed to have travelled to Dubai on business the applicant had stated that it was at her home, but could not be found by the persons who had forwarded her citizenship-nationality documents to her in Ireland in advance of the oral hearing before the Refugee Appeals Tribunal.

8 The applicant claims that the acquaintance of her aunt in the city where the applicant had been hiding following her assisted escape from a Military Detention Centre had, for the sum of US$5,000, provided travel documents which had enabled her to pass through three different countries and to enter this State. She claims that she returned all these documents together with the travel tickets to this man. The member of the respondent noted that the applicant had not, as required by s. 11B of the Refugee Act 1996 (as amended), provided any satisfactory explanation as to why she had not sought asylum in any of the three countries through which she had travelled before arriving at the borders of this State.

9 The member of the respondent noted that in the A.S.Y.1 Form for Seeking Asylum, completed by the applicant on the 30 ^th March, 2007, after her arrival in this State on the 23 ^rd March, 2007, the applicant had stated that she was a sympathiser but not a member of a political party. However, in the course of the s. 11 Interview she claimed that she was a member of a named political party which she claimed to have joined in 2005. She knew when this political party had been founded and she knew the name of the then current party leader. The applicant said that she was a "simple member" who supported them and went to party meetings when she was free. She did not have any party duties and did not have a membership card. This was the political party of which S.B. had been a leading member.

10 The applicant claimed that when she told A.M. that S.B. was showing an interest in her, he had urged...