L.C.L. v Refugee Appeals Tribunal and Another,

• Jurisdiction: Ireland
• Judge: Ms. Justice Clark
• Judgment Date: 21 January 2009
• Neutral Citation: [2009] IEHC 26
• Judgment citation (vLex): [2009] 1 JIC 2105
• Court: High Court
• Date: 21 January 2009

[2009] IEHC 26

THE HIGH COURT

[No. 1436 J.R./2007]

L (L C) v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

BETWEEN

L.C.L.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

ILLEGAL IMMIGRANTS TRAFFICKING ACT 2000 S5(2)

CARCIU v MIN FOR JUSTICE & ORS UNREP FINLAY-GEOGHEGAN 4.7.2003 2003/8/1638 2003 IEHC 41

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

KEAGNENE v REFUGEE APPEALS TRIBUNAL UNREP HERBERT 31.1.2007 2007/31/6465 2007 IEHC 17

REFUGEE ACT 1996 S13

M(LL) v REFUGEE APPEALS UNREP McMAHON 9.12.2008 2008 IEHC 390

TRAORE v REFUGEE APPEALS TRIBUNAL 2004 2 IR 607 2004/49/11175 2004 IEHC 606

KHAZADI v REFUGEE APPEALS TRIBUNAL UNREP GILLIGAN 19.4.2007 2006/38/8020 2004 IEHC 606

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

I(S) v MIN FOR JUSTICE & ORS UNREP FINLAY-GEOGHEGAN 11.5.2007 2007/29/5959 2007 IEHC 165

RN(RETURNEES) ZIMBABWE CG 2008 UKAIT 00083 19.11.2008

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

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

L(J) v M(J) v REFUGEE APPEALS TRIBUNAL UNREP GILLIGAN 27.6.2008 2008 IEHC 254

A(J) v REFUGEE APPEALS TRIBUNAL & ORS UNREP HEDIGAN 15.10.2008 2008 IEHC 310

OJELABI v REFUGEE APPEALS TRIBUNAL & ORS UNREP PEART 28.2.2005 2005/48/10025 2005 IEHC 42

GK & ORS v MIN FOR JUSTICE & ORS 2002 2 IR 418

REFUGEE ACT 1996 S11(B)

IMMIGRATION ACT 2003 S7(f)

IMMIGRATION

Asylum

Judicial review - Leave - Fair procedures - Credibility -Whether finding on credibility ultra vires - Evidence - Medical reports supportive of applicant's claim furnished - Whether cogent reasons for rejecting medical reports furnished by Tribunal - Consideration of previous Tribunal decisions - Whether properly assessed - Whether cogent reasons given for deeming prior Tribunal decisions irrelevant - Whether alleged errors of fact made in assessment of credibility material or relevant - Whether country of origin information submitted in support of claim for asylum relevant - Whether substantial grounds for contending that decision invalid - Imafu v Refugee Appeals Tribunal [2005] IEHC 416 (Unrep, Peart J, 9/12/2005) applied; Keagnene v Refugee Appeals Tribunal [2007] IEHC 17 (Unrep, Herbert J, 31/1/2007) considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Leave granted (2007/1436JR - Clark J - 21/1/2009) [2009] IEHC 26

L(CL) v Refugee Appeals Tribunal

Facts: the applicants sought leave to quash, by way of judicial review, the decisions of the first respondent to refuse their appeals against the recommendation of the Refugee Applications Commissioner that they be refused asylum and the decisions of the second respondent to refuse their applications for subsidiary protection and to deport them. The application was made 13 months outside the time limit set for instituting judicial review in respect of the decisions of the first respondent. They contended, inter alia, that the second respondent had applied the incorrect approach when assessing country of origin information and had breached the provisions of section 3 of the European Convention on Human Rights Act 2003 and the UN Convention on the Rights of the Child in refusing the applications for subsidiary protection and deporting them.

Held by Mr Justice Hedigan in refusing the applicant leave to seek judicial review:

1. That where there was inordinate delay in instituting judicial review applications seeking certiorari of a decision of the Refugee Appeals Tribunal the reasons proffered in explanation of the delay had to be exceptional for the Court to be satisfied that there was good and sufficient reason for extending the 14 day time limit set out in section 5 of the Illegal (Immigrants) Trafficking Act 2000.

2. That it was established, as a matter of international refugee law and as a facet of national sovereignty, that there was a general presumption that states were capable of protecting its citizens. It was therefore incumbent on an applicant for refugee status to provide clear and convincing evidence to rebut that presumption. In the absence of evidence that protection may not be reasonably forthcoming, there could not be said to be a failure of state protection where a government had not been given an opportunity to respond to a form of harm. It was thus open to the second respondent to draw from the country of origin information before him that state protection may reasonably have been forthcoming had it been sought by the applicants.

3. That it was not incumbent upon analysing officers in each and every case to assess the proportionality of a deportation or to engage in a balancing exercise as to the competing rights involved.

4. That it was sufficient for the second respondent to have acknowledged that the proposed deportation could engage the applicants’ rights under Article 8 of the European Convention on Human Rights and constitute an interference therewith.

Doubted: whether the requirement to expressly take into account the best interests of a child when assessing the proportionality of a proposed deportation under Article 8 of the European Convention on Human Rights applied at times in all circumstances.

Reporter: P.C.

Factual Background

1 The applicant claims to be a national of Angola, a Protestant and of Mokongo ethnicity whose first language was Kikongo and whose other languages were Lingala, French, Fioti and a bit of Portuguese. His account of events which led to his application for asylum is as follows: He was born in Cabinda, a separatist enclave of Angola, in 1975. Later that year, his family moved as refugees to what was then Zaire, where his parents lived in a refugee camp and worked as farmers. His parents attempted to return to Angola when the civil war ended in 1994 but the truck in which they were travelling was ambushed and they were killed. The applicant and his brother remained in Zaire. From 1994 to 1998, the applicant worked as a carpenter in what was to become the Democratic Republic of Congo or DRC. Although the details of this period are not entirely clear or consistent, it appears that from 1998 to 2000, he and his brother were captured by the National Union for the Total Independence of Angola (UNITA) and forced to work with the army carrying out attacks against villages occupied by the Popular Movement for the Liberation of Angola (MPLA). In 2000, the applicant escaped when the MPLA attacked their UNITA base. He returned to live with his grandfather in the village of his birth which was two or three hours from Cabinda city, and worked on his grandfather's coffee farm.

2 The applicant says that about eight months later in 2000, the village chief invited him to become a member of the Front for the Liberation of the Enclave of Cabinda - Armed Forces of Cabinda (FLEC-FAC), which is a faction or splinter group of the original FLEC separatist movement. He did so, and from 2000 to 2003 worked as the coordinator for his particular village; in his questionnaire he said that his function was to organise meetings in villages so as to impart information about the FLEC movement while at interview he said that everyone in Cabinda is a FLEC supporter and his work as coordinator was to take information from Cabinda (the State capital) and bring it to his village. People in his village did not know what was going on and he told them about how the country was rich but all the jobs went to Angolans and how they were being colonised by MPLA. Meetings in the village took place whenever they had something to say which occurred about every two months.

3 The applicant says that on 28 ^th April, 2003, he, his wife and others who were attending a FLEC meeting in Luanda in Angola were arrested by Angolan authorities and detained in a police station. A week later, they were transferred to a detention centre for two weeks and then to Namibe province. After almost two weeks in the detention centre in Namibe, he witnessed the execution of his wife who was shot because she was always crying and causing trouble. Two days later a soldier was ordered to take the applicant and his cell mate out to be shot. The soldier had been ordered to kill them but was unwilling to do so as he was also a member of FLEC. The soldier was from his own tribe and told them that he would do all that he could to help them. They were taken to a jeep by the soldier and driven to the Namibian border where someone was waiting to take them to Namibia. The following day a white man came to the house where they were staying and took photographs and the following day told them they would be travelling. T he applicant and his cell mate A. travelled to Dublin airport via Namibia and Frankfurt with this man M.; he does not know who paid for the travel arrangements but suspects his grandfather or the soldier who helped them may have been involved. He has not seen A. since and does not to know M.'s address.

Procedural Background

4 The applicant applied for asylum in the State on 3 ^rd June, 2003. With his ASY-1 form he submitted what he says is his FLEC-FAC membership card. He filled out a questionnaire, and he attended for interviews with ORAC in December, 2003 and June, 2004. He was questioned at length about his knowledge of FLEC-FAC leaders and of how one joins the organisation and about features of the city of Cabinda. He was also asked to translate basic phrases into Portuguese. He explained his lack of knowledge of Cabinda to the fact that he only went to the party HQ and did not walk around or stay there overnight. He was unable to name the "senior" members of FLEC-FAC who were at the meeting in...