L.L.M. v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice McMahon
• Judgment Date: 09 December 2008
• Neutral Citation: [2008] IEHC 390
• Date: 09 December 2008
• Court: High Court
• Docket Number: [No. 902 J.R./2006]

[2008] IEHC 390

THE HIGH COURT

[No. 902 J.R./2006]

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

BETWEEN

L.L.M.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

REFUGEE APPEALS TRIBUNAL

RESPONDENTS

IMAFU v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (O'BRIEN) UNREP CLARKE 27.5.2005 2005/31/6380

KRAMARENKO v REFUGEE APPEALS TRIBUNAL 2004 2 ILRM 550

TRAORE v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2004 2 IR 607

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT, EX PARTE ADAN (HASSAN HUSSEIN) 1998 2 AER 453

OLATUNJI v REFUGEE APPEALS TRIBUNAL (TAIT) & MIN FOR JUSTICE UNREP FINLAY-GEOGHEGAN 7.4.2006 2006/46/9904

AYAYA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL 2003 2 IR 93

VIDRASHKU v MIN FOR JUSTICE UNREP FINLAY-GEOGHEGAN 17.10.2002 2002/27/7127

KEAGNENE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (NICHOLSON) UNREP HERBERT 31.1.2007 2007/31/6465

IMOH & OKORO v REFUGEE APPEALS TRIBUNAL (BRENNAN) & MIN FOR JUSTICE UNREP CLARKE 24.6.2005 2005/31/6393

IMMIGRATION

Asylum

Judicial review - Leave - Credibility - Error of fact in country of origin information relied upon by respondent - Imafu v Minister for Justice [2005] IEHC 416 (Unrep, Peart J, 9/12/2005), Olatunji v Refugee Appeals Tribunal [2006] IEHC 113 (Unrep, Finlay Geoghegan J, 7/4/2006), Ayaya v Minister for Justice (Unrep, Finlay Geoghegan J, 2/5/2003), Vidrashku v Minister for Justice (Unrep, Finlay Geoghegan J, 17/10/2002), Imoh v Refugee Appeals Tribunal [2005] IEHC 220 (Unrep, Clarke J, 24/6/2005) and Keagnene v Refugge Appeals Tribunal [2007] IEHC 17 (Unrep, Herbert J, 31/1/2007) applied; NK v Refugee Appeals Tribunal [2004] IEHC 240, [2005] 4 IR 321, AMT v Refugee Appeals Tribunal [2004] IEHC 219, [2004] 2 IR 607, R v Secretary of State, Ex Parte Adan [1998] 2 All ER 453 considered - Leave granted (2006/902JR - McMahon J - 9/12/2008) [2008] IEHC 390

M (LL) v Minister for Justice, Equality and Law Reform

Facts: The applicant sought to judicial review of a decision to refuse his application for refugee status. The application was from the Democratic Republic of Congo (DRC) and clamed to have been a school teacher and member of a trade union. The RAT rejected the appeal of the applicant on grounds of credibility. The applicant alleged that a serious error of fact had been made with respondent to the interpretation of the country of origin information as to the occurrence of a strike. The applicant alleged that a similarity between himself and a family member, bearing the same name and profession existed, who had been arrested for trade union activities subsequent to the flight of the applicant from the DRC.

Held by McMahon J., in granting leave, that there was a possibility of a mistake as to identity should have been more closely examined. In failing to address these matters and where the Tribunal member had serious doubts about the applicants account of the mistaken identity issue, more opportunity should have been give to the applicant to allow him to convince the member. This and the errors of fact entailed that the decision of the Tribunal was unsafe.

Reporter: E.F.

Mr. Justice McMahon

Introduction

1 The applicant is from Democratic Republic of Congo. He arrived in the State on 6^th September, 2005 and applied for asylum. His application for refugee status was refused by the Refugee Applications Commissioner (hereafter the "RAC") on 30^th December, 2005. A notice of appeal dated 9^th January, 2006 was lodged and an appeal hearing took place on 8^th March, 2006. The appeal from the negative findings of the RAC was rejected by the Refugee Appeals Tribunal (hereafter the "RAT") by decision dated 30^th June, 2006. The applicant has brought judicial review proceedings to quash this decision of the RAT on three grounds:- a fundamental error of fact, a lack of credibility finding, and delay.

2 The delay issue was not pressed by counsel for the applicant at the hearing before this court in light of the fact that an affidavit explaining the reasons for the delay was filed shortly before the hearing in this court. The other two grounds will be addressed hereunder.

3 The relevant background is set out in the respondent's outline of legal submissions and it is adopted here as a general statement of the applicant's history before he came to this country, although some of the matters are disputed and these will become apparent later in this judgment.

"The applicant claims to be a school teacher. He is married with three children but they are still in Democratic Republic of Congo ("DRC"). He is a member of a teacher's trade union and participated in a school strike in February, 2005. He is also a member and active in organisations associated with the Catholic Church. On 30^th June, 2005 he took part in a public demonstration in the capital Kinshasa organised by the political opposition (UDPS) though he is not a member of that or any other political party. The Government sent troops to the demonstration and the applicant fled but says that the military spotted him going home. The following day, while he was away, two men in civilian clothes, but who he thinks were associated with the military, came to his house inquiring about him. He fled Kinshasa for Bas Congo where he stayed for ten days. During this period his uncle, who had the same name and profession as him was arrested by the authorities and held for two days. He was accused of being in the union and supporting the opposition but when he pointed out that they had the wrong man they let him go. This convinced the applicant that he must leave DRC. Some priests arranged his flight to Ireland (including providing him with a false passport) via Congo Brazzaville and France and one of them accompanied him to Dublin Airport where he retrieved the false passport"

4 The RAT rejected the applicant's appeal on the grounds of a negative credibility finding. I set out hereunder the operative part of the decision with which the applicant takes issue:-

"I have carefully considered all the matters required to be considered for the purposes of this appeal. After carefully considering these matters I am satisfied the applicant is not a refugee within the meaning of s. 2 of the Refugee Act1996."

5 In the first instance the Tribunal put to the applicant that country of origin information showed the Teacher's Union strike in the DRC had been settled and that the senior figures who had been arrested were released within a number of days. In this regard I do not consider it in any way plausible that the applicant would be targeted over and above other members of his union especially when the strike was settled and the senior figures involved had been released. This to my mind undermines the applicant's credibility with regard to his claim.

6 It was put to the applicant by the presenting officer that if he was so well known by the security forces, why was his uncle, who had the same name and qualifications, arrested instead. The applicant stated maybe they were not well informed. The applicant was then asked that if he had such a high profile why did they make this mistake and the applicant stated that they had made the mistake. Having considered the matter I do not consider it plausible that if the applicant was known to the security forces and was targeted by them, they would have arrested the wrong person. This further undermines the applicant's credibility with regard to his claim.

7 I have heard the applicant's evidence with...