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

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 20 October 2009
• Neutral Citation: [2009] IEHC 483
• Judgment citation (vLex): [2009] 10 JIC 2001
• Court: High Court
• Date: 20 October 2009

[2009] IEHC 483

THE HIGH COURT

Record No. 426JR/2009

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

JUDICIAL REVIEW

BETWEEN/

M.L.

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S13(5)

REFUGEE ACT 1996 S13(6)(D)

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S11B

REFUGEE ACT 1996 S11B(C)

REFUGEE ACT 1996 S11B(B)

HORVATH v SECRETARY OF STATE FOR THE HOME DEPT 2001 1 AC 4892000 3 WLR 379 2000 3 AER 577

ZGNAT'EV v MIN FOR JUSTICE UNREP FINNEGAN 29.3.2001 2002/29/7601

B (GO) v MIN FOR JUSTICE UNREP BIRMINGHAM 3.6.2008 2008/2/390 2008 IEHC 229

CANADA (AG) v WARD 1993 2 SCR 689 1993 103 DLR (4TH) 1

O (H) v REFUGEE APPEALS TRIBUNAL & MIN FOR FINANCE UNREP HEDIGAN 19.7.2007 2007/45/9473 2007 IEHC 299

A (OA) v MIN FOR JUSTICE UNREP FEENEY 9.2.2007 2007/4/605 2007 IEHC 169

FASAKIN v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP O'LEARY 21.12.2005 2005/25/5110 2005 IEHC 423

ATANASOV & ORS v REFUGEE APPEALS TRIBUNAL & ORS 2007 1 ILRM 288 2006/3/519 2006 IESC 53

ATANASOV & ORS v REFUGEE APPEALS TRIBUNAL & ORS UNREP MACMENAMIN 7.7.2005 2005/50/10529 2005 IEHC 237

REFUGEE ACT 1996 S13(6)

REFUGEE ACT 1996 S16(2)

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009 IEHC 353

KEAGNENE v MIN FOR JUSTICE UNREP HERBERT 31.1.2007 2007/31/6465 2007 IEHC 17

BISONG v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (GARVEY) UNREP O'LEARY 25.4.2005 2005/4/814 2005 IEHC 157

CARCIU v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP FINLAY-GEOGHEGAN 4.7.2003 2003/8/1638

KOCI v SECRETARY OF STATE FOR THE HOME DEPT 2003 EWCA CIV 1507

K (G) & ORS v MIN FOR JUSTICE & ORS 2002 2 IR 4182002 1 ILRM 401 2001/13/3557

IMMIGRATION LAW

Asylum

Fear of persecution - Well founded fear of persecution - Blood fued - Credibility - State protection - Whether error of fact vitiated entire credibility assessment performed by tribunal - Country of origin information - Individual circumstances of applicant - Whether tribunal failed to have proper regard to all country of origin information - Absence of effective State protection - Failure to have regard to previous decisions - Horvath v Secretary of State for the Home Department [2001] 1 AC 489, [2000] WLR 379, [2000] 3 All ER 577; Zgnatev v Minister for Justice (Unrep, HC, Finnegan J, 29/3/2001); B(GO) v Minister for Justice [2008] IEHC 229, (Unrep, HC, Birmingham J, 3/6/2008); Canada (AG) v Ward [1993] 2 SCR 689; O (H) v Refugee Appeals Tribunal [2007] IEHC 299, (Unrep, HC, Hedigan J, 19/7/2007) ; OAA v Minister for Justice [2007] IEHC 169, (Unrep, HC, Feeney J, 9/2/2007); Fasakin v Refugee Appeals Tribunal [2005] IEHC 423, (Unrep, HC, O'Leary J, 21/12/2005); Atanasov v Refugee Appeals Tribunal [2006] IESC 53, [2007] 1 ILRM 288; Minister for Justice [2009] IEHC 353, (Unrep, HC, Cooke J, 24/7/2009); Keagnene v Minister for Justice [2007] IEHC 17, (Unrep, HC, Herbert J, 31/7/2007); Bisong v Refugee Appeals Tribunal [2005] IEHC 157, (Unrep, HC, O'Leary J, 25/4/2005) ; KOCI v Home Secretary [2003] EWCA Civ 1507 considered - Carciu v Refugee Appeals Tribunal (Unrep, HC, Finlay Geoghegan J, 4/7/2003) and GK v Minister for Justice [2002] 2 IR 418, [2002] 1 ILRM 401 applied - Refugee Act 1996 (No 17), ss 13, 16 and 17 - Partial leave to apply for judicial review granted (2009/426JR - Edwards J - 20/10/2009) [2009] IEHC 483

L (M) v Refugee Appeals Tribunal

1 EX TEMPORE JUDGMENT of Mr. Justice John Edwards delivered on 20th day of October, 2009.

Introduction

2 This is an application for leave to apply for an order of certiorari and other reliefs by way of judicial review, primarily for the purpose of quashing a decision of the Refugee Appeals Tribunal rendered on 2 ^nd March, 2009 and in which the Tribunal Member affirmed the earlier recommendation of the Refugee Applications Commissioner made in accordance with s. 13 of the Refugee Act 1996, that the applicant should not be declared a refugee. The applicant was represented by Mr. Michael Lynn, B.L., instructed by Brophy, Solicitors. The respondents were represented by Mr. Daniel Donnelly B.L., instructed by the Chief State Solicitor. The bearing took place before me today in King's Inns Court No 4.

Facts

3 The applicant in this case is an Albanian citizen. He claims to have fled Albania following an assault on him in consequence of a blood feud between his family and another family. He arrived in Ireland in early 2006 and sought asylum here. His claim for asylum is based upon an alleged fear that if he returns to Albania he will be persecuted on account of being a member of a particular social group, namely a family that is involved in a blood feud.

4 The background to the matter is that the applicant was born in Albania on 3 ^rd February, 1982. He recounted in the course of his interviews, and indeed in his answers to the ASY1 questionnaire, that he attended school from 1990 to 1996, and that he worked as a painter. He encountered difficulties from 1997 onwards after his brother while drunk shot three members of a neighbouring family, the K.T. family, in a dispute relating to land and turkeys. Thereafter, fearing revenge, he went to his sister's home for two days and then went to live with an aunt for four and a half years. After that he went to live with another aunt and eventually moved to a place called Elbasan.

5 His brother was subsequently charged with murder, attempted murder and with possession of a weapon without a permit. However, it seems that before his trial came on he somehow absconded and went into hiding. Accordingly, he was not present for his trial and he was tried in absentia. He was convicted and sentenced to life imprisonment. He was later picked up at sometime in 2000/2001 and he was committed to prison to serve the life sentence that had been imposed upon him at his trial.

6 The applicant himself left Albania after his brother's arrest. He went to Belgium and was arrested while in Belgium because he was in possession of false documents. He then applied for asylum there on the 24 ^th June, 2003. His asylum claim was processed in the normal way and it was ultimately rejected. This had implications for him in terms of the process that he has gone through in this jurisdiction, in that it brought into play the provisions of ss. 13(5) and 13(6)(d) of the Refugee Act 1996, as amended. By virtue of these statutory provisions, and because he had lodged a prior asylum application in another convention state, the appellant was not entitled to an oral hearing in the course of his appeal to the Refugee Appeals Tribunal against the recommendation of the Refugee Applications Commissioner.

7 Returning to the central story, after the Belgian authorities refused to grant asylum to the applicant he then went to live with one of his sisters in Italy. He remained in Italy for about a year and was eventually deported back to Albania by the Italian authorities as he did not have appropriate documentation. On his return to Albania he lived with his girlfriend in a town or city called Lushnje, which is apparently some 30 to 45 miles away from his family home. He suffered a violent attack while he was living with his girlfriend in Lushnje. Apparently he went out one night to purchase some cigarettes and some coffee and while on his way to the coffee shop he was hit over the head with an iron bar. This attack was perpetrated by a nephew of the K.T. family and, of course, this was the family whose members had been attacked by the applicant's brother. After this assault, the applicant returned to live with his parents for four months. A friend of the applicant's father then assisted him to leave Albania. He travelled through Italy and France. He travelled to Ireland on a ship and, having landed here, applied at the office of Refugee Applications Commissioner on 31 ^st January, 2006 for asylum in this country.

The s. 13 report of the Refugee Applications Commissioner.

8 The Refugee Applications Commissioner rejected his claim to be a refugee because he was satisfied that the applicant had not established a well founded fear of persecution as defined in s. 2 of the Refugee Act 1996 (as amended).

9 Various internal and external inconsistencies in the applicant's story were highlighted in paragraphs 4.5, 4.6, 4.7, 4.8 and 4.9 of the Commissioner's report, and doubts were expressed about his credibility on account of these.

10 At paragraph, 4.10 of the s. 13 report the Commissioner says:-

"The applicant's account of how he travelled to Ireland is not credible. He stated that he had no passport for his travel and further claims that he managed to walk from the ship at an unknown port when he arrived in Ireland and he encountered no problems passing through immigration."

11 Further, he stated at para. 4.11 thereof that:-

"I am of the opinion that the applicant's claim lacks credibility. On consideration of the facts of this case, taken with available country of origin information and the applicant's testimony, I conclude that the applicant does not have a well-founded fear of persecution in Albania."

12 Finally, the Commissioner, as he was obliged by law to do had regard to s. 11B of the Refugee Act 1996 (as amended) and found that s. 11B(c) was particularly relevant in the circumstances of the case.

13 Accordingly, the primary reason why the Refugee Applications Commissioner rejected the applicant's claim was that he considered that it lacked credibility.

The Appeal to the Refugee Appeals Tribunal

14 The applicant duly appealed to the Refugee Appeals Tribunal against the s. 13 report, and the recommendation contained therein, and, as I have already said, this was an appeal based on documents only. There was no oral hearing.

15 ...