L (J) and Another v Refugee Appeals Tribunal

JurisdictionIreland
JudgeMr. Justice Gilligan
Judgment Date03 July 2008
Neutral Citation[2008] IEHC 254
CourtHigh Court
Date03 July 2008

[2008] IEHC 254

THE HIGH COURT

[563 J.R./2006]
L (J) & M (J) v Refugee Appeals Tribunal & Minister for Justice
JUDICIAL REVIEW
J.L. AND J.M
APPLICANTS

AND

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

REFUGEE ACT 1996 S16(16)

REFUGEE ACT 1996 S11B

IMMIGRATION ACT 2003 S7(f)

REFUGEE ACT 1996 S2

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

SANGO v MIN JUSTICE & REFUGEE APPEALS TRIBUNAL (MCHUGH) UNREP PEART 24.11.2005 2005/53/11227 2005 IEHC 395

P (V) & P (S) v REFUGEE APPEALS TRIBUNAL & MIN JUSTICE UNREP FEENEY 7.12.2007 2007 IEHC 415

OJELABI v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP PEART 28.2.2005 2005/48/10025 2005 IEHC 42

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Mr. Justice Gilligan delivered the 3rd day of July, 2008

Background
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1. The first and second named applicants are husband and wife. They are both nationals of the Democratic Republic of Congo ("DRC"). They both sought asylum in Ireland on the 4 th January, 2005. The first named applicant claims to be a Pentecostal preacher who is at risk of persecution based on the grounds of imputed political opinion. He claims to have given a sermon in September, 2004 which was religious in nature, but which, he claims, was misinterpreted by the authorities as a challenge to them. He claims that he was arrested on the 20 th September, 2004 and detained for over a month. During this time he claims that he was both physically and sexually abused. He states that he managed to escape during an ambush and fled to Kinshasa.

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2His brother-in-law arranged for both applicants to travel from there to Belgium, where they spent approximately ten hours, and then on to Ireland. The first named applicant fears for his life should he be returned to DRC. The second named applicant bases the entirety of her application on the difficulties surrounding her husband.

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3. The second named applicant claims that she deserted from the police force, that their house was raided and subsequently destroyed in Kinshasa. She alleges that she stayed at the farm of her brother-in-law while her husband was detained until she left for Ireland. She was not physically harmed at any time in the DRC.

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4. The first named applicant submitted a purported DRC driving licence, together with a report from a Rape Crisis Centre, a referral letter from SPIRASI, two untranslated internet articles and a letter from a doctor who was treating him, to the Refugee Applications Commissioner as part of his application.

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5. The first named applicant was refused refugee status by the Refugee Applications Commissioner by a decision dated the 19 th and 30 th August, 2005. The second named applicant was refused refugee status by a decision dated the 28 th June, 2005 and the 25 th July, 2005. The Commissioner refused to make a recommendation that the first named applicant be declared a refugee for the following reasons:

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a) Country of Origin information showed that there was religious freedom in the DRC;

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b) The first named applicant had claimed that his escape was highly publicised and had been on Congolese television and that it had been announced that he was a dangerous person. Notwithstanding that claim, a search of Country of Origin information could find no evidence relating to his alleged arrest and escape from detention;

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c) The various letters and reports submitted by the first named applicant in support of his claim were not corroborative of his story;

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d) The first named applicant had given a highly implausible account of how he came to be in possession of what he claimed was a genuine driving licence from the DRC; and

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e) The first named applicant had failed to provide a full and true account of his travel to Ireland and had failed to make an asylum claim in the first safe country in which he arrived, namely, Belgium.

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6. A Notice of Appeal was lodged on behalf of both applicants by the Refugee Legal Service and they were both heard on the 25 th October, 2005. The Refugee Appeals Tribunal ("RAT"), refused the application for asylum by decision dated the 14 th March, 2006.

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7. The tribunal member has set out in extensive detail an introduction to the applicants' application and the background to the claim. In particular, the tribunal member refers to the fact that the first named applicant confirmed that the message of his sermon was misinterpreted and that this was the root cause of his problem. Having referred to the law, the tribunal member sets out the basis of his decision, having considered all of the papers submitted to him for the purpose of the appeal and all the matters required to be considered under s. 16(16) of the Refugee Act 1996, as amended. The tribunal member states that he has considerable hesitation in believing the whole story of both applicants for the reasons as set out. He states that he is satisfied from the facts before him that the lack of credibility in this case fundamentally infects the subjective element of a well founded fear of persecution. He refers to the fact that, in assessing credibility, he has had the opportunity of seeing and hearing both applicants and observing the manner in which their evidence was given and the demeanour of the applicants generally. Furthermore, in assessing credibility, the Tribunal did have regard to the provisions of s. 11B and the subs. provided therein in the Refugee Act 1996, (as inserted) by the Immigration Act 2003, s. 7(f).

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8. The tribunal member came to the view from the facts before him that the applicants did not provide a reasonable explanation for the absence of reliable identity documentation. An original DRC driving license produced in respect of the first named applicant is a counterfeit. In relation to the work ID cards submitted by the second named applicant, the tribunal member does not accept her reason as to why the card looked brand new even though it is supposed to be six years old. In this regard the tribunal member states that he arrived at his conclusion in respect of the documentation based on the answers provided by the second named applicant at the hearing before him.

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9. The tribunal member did not accept that the applicants had provided him with a full and true explanation as to how they arrived in Ireland.

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10. The tribunal member sets out that he is satisfied that Ireland was not the first safe country in which they arrived since departing from their country of origin.

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11. The tribunal member refers to a SPIRASI report submitted post hearing, dated the 29 th December, 2005, and that the content thereof was noted and considered in the light of the provisions of the Istanbul Protocol.

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12. The tribunal member refers to the fact that a search of reputable Country of Origin sources fails to provide any evidence to substantiate the first named applicant's alleged arrest and escape from state detention.

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13. Insofar as the second named applicant claims to have been a deserter from the police force, the tribunal member refers to the second named applicant's answer at question 29 of the original questionnaire wherein she stated "my return to the country would be same as handing myself over to slaughter at the hands of soulless leaders who have no respect for human rights or freedom of expression (my death)". This aspect is not being pursued in the application before this Court.

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14. The tribunal member states that he considered all relevant documentation and came to the conclusion that the applicants are not refugees within the meaning of s. 2 of the Refugee Act 1996, as amended, and, accordingly, he affirmed the recommendation of the Refugee Applications Commissioner and dismissed the appeal.

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15. Leave to apply for judicial review was granted by the High Court (McKechnie J.) on the 21 st February, 2008. The 14 day time limit for leave to apply for judicial review under s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000, was extended.

Grounds Upon Which the Relief is Sought
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16. The applicants contend that the first named respondent, its servants or agents, acted without jurisdiction or alternatively in excess of jurisdiction and/or otherwise than in accordance with law and/or otherwise than in accordance with fair procedures in that it:

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(i) Failed to give proper consideration to the core issue of risk of persecution.

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(ii) Improperly made adverse credibility findings against the applicants, or each of them, on matters peripheral to the core issue of risk of persecution, insufficient to justify an overall adverse finding.

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(iii) Made findings adverse to the applicants, or each of them, in reliance upon erroneous matters. In particular, improperly made an adverse finding on the basis that the English versions of internet reports...

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