M (A A) v Refugee Appeals Tribunal and Others

JurisdictionIreland
JudgeMs. Justice Mary Irvine
Judgment Date02 July 2009
Neutral Citation[2009] IEHC 302
CourtHigh Court
Date02 July 2009

[2009] IEHC 302

THE HIGH COURT

[No. 67 J.R./2008]
M (A A) v Refugee Appeals Tribunal & Ors
JUDICIAL REVIEW

BETWEEN

A.A.M.
APPLICANT

AND

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

AND

HUMAN RIGHTS COMMISSION
NOTICE PARTY

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11B

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 196

K (N) v REFUGEE APPEALS TRIBUNAL & ORS 2005 4 IR 321 2004 2 ILRM 550 2004/26/6170 2004 IEHC 240

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

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

MUIA v REFUGEE APPEALS TRIBUNAL (O'GORMAN) UNREP CLARKE 11.11.2005 2005/40/8300 2005 IEHC 362

IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416

ABDULKARIM v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP BIRMINGHAM 23.1.2009 (EX TEMPORE)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

MCNAMARA (KILL RESIDENTS GROUP) v BORD PLEANALA (NO 1) 1995 2 ILRM 125

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992

IMAFU v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (O'BRIEN) UNREP CLARKE 27.5.2005 2005/31/6380 2005 IEHC 182

REFUGEE ACT 1996 S11

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

IMMIGRATION

Asylum

Appeal - Leave for judicial review - Claim based on persecution - Whether substantial grounds for review - Assessment of credibility - Failure to refer to documentation submitted - Whether selective use of country of origin information - Weight of evidence - Whether error of fact material - McNamara v An Bord Pleanála (No. 1) [1995] 2 ILRM 125 - K (N) v Refugee Appeals Tribunal [2004] 4 IR 321, Sango v RAT [2005] IEHC 395 (Unrep, Peart J, 24/11/2005), Carciu v Minister for Justice, Equality and Law Reform (Unrep, Finlay Geoghegan J, 4/7/2003), Muia v RAT [2005] IEHC 363 (Unrep, Clarke J, 11/11/2005), Imafu v Minister for Justice, Equality and Law Reform [2005] IEHC 416 (Unrep, Peart J, 9/12/2005), A (A) v Minister for Justice, Equality and Law Reform (Unrep, Cooke J, 23/1/2009), Imafu v Minister for Justice, Equality and Law Reform [2005] IEHC 182 (Unrep, Clarke J, 27/5/2005), Traore v RAT (Unrep, Finlay Geoghegan J, 15/5/2004), Da Silveira v RAT (Unrep, Peart J, 9/7/2004), and Zhuchova v Minister for Justice, Equality and Law Reform (Unrep, Clarke J, 26/11/2004) considered - Leave refused (2006/67JR - Irvine J - 2/7/2009) [2009] IEHC 302

M (AA) v Refugee Appeals Tribunal

Facts: The applicant sought leave to apply for judicial review to seek an order of certiorari to quash the decision of the first named respondent. The applicant alleged that fair procedures had not been provided, that adverse findings as to credibility had been made that had failed to take into account significant elements of the evidence of the applicant, that the Tribunal had erred as to material facts with respect to credibility and that the Tribunal had selective regard for certain country of origin information. The applicant was a member of a tribe in Darfur, Sudan and alleged that significant positive evidence had been provided that he had been a member of a Tribe.

Held by Irvine J. That the Tribunal was entitled to come to the conclusion that was reached and was entitled to weigh the evidence as available. The Tribunal did not err outside of jurisdiction. Even if an irrational consideration had been reached, it would not have affected the overall outcome of the proceedings. The errors made were peripheral. Substantial grounds had not been shown by the applicant and the reliefs sought would be refused.

Reporter: E.F.

1

JUDGMENT of Ms. Justice Mary Irvine delivered on the 2nd day of July, 2009.

2

1. By notice of motion dated 24 th January 2008, the Applicant seeks leave to apply for judicial review and in particular an order of certiorari to quash the decision of the first named respondent made on 28 th November, 2007 whereby the Tribunal member affirmed the recommendation of the Refugee Applications Commissioner that the applicant be refused refugee status.

3

2. The grounds upon which the relief is sought are manifold and were somewhat telescoped in the course of the application before this Court. They may be summarised as follows:-

4

(i) that the Applicant was not afforded fair procedures by the manner in which the first named respondent reached her decision.

5

(ii) That in reaching her adverse finding as to the Applicant's credibility, the Tribunal member failed to take into account allegedly significant elements of the Applicant's evidence.

6

(iii) That in reaching an adverse finding as to the Applicant's credibility, the Tribunal member erred in law in the manner in which she dealt with the Applicant's lack of documentation.

7

(iv) The Tribunal member erred in respect of her findings on a number of material facts which were weighed into the balance as to the Applicant's credibility thus undermining the validity of her decision on that issue.

8

(v) The Tribunal member had selective regard to country of origin information before it and failed to indicate the circumstances in which she discounted a UNHCR position paper of February 2006 which supported the Applicant's claim regarding the issue of internal relocation.

Background facts
9

3. The Applicant claimed he is a member of the Berti tribe who had lived his entire life in the town of Serba in Darfur, Sudan. He left Darfur allegedly due to a stated fear of persecution by reason of his membership of this tribe. He asserted that he had working for three weeks at a grain store in Serba, where the employer hid weapons for opposition groups. He claimed to have feared government troops who had been outside his place of employment. This caused the Applicant to hide out in an agricultural dwelling, called a "zaribe" in Arabic, owned by a friend. However, Serba was attacked on 11 th November 2006, causing the Applicant to travel to another town, Silea, by truck. From there he went to another town called Kulbus before his uncle arranged for him to leave Sudan by ship on 28 th November, 2006.

10

4. The Applicant applied for asylum in this State on 28 th December 2006. He completed the standard questionnaire supporting his asylum application in Arabic on 31 st December 2006. Question 7a of the questionnaire asked the Applicant's current nationality/citizenship to which he replied "Arab." His questionnaire was translated from Arabic into English and he attended for interview on 4 th May 2007.

11

5. By decision dated 16 th July, 2007, the Refugee Applications Commissioner recommended that the Applicant should not be declared a refugee. In reaching that conclusion, the Commissioner made adverse findings as to the applicant's credibility. One of the issues in relation to credibility concerned the Applicant's statement on his questionnaire that he was of Arab nationality. The Commissioner stated:

"Asked to confirm that he was an Arab, the applicant replied "I'm African." Asked why he had put on his questionnaire that his nationality was Arab, he replied "Maybe I didn't understand the question." Since the applicant stated that he was satisfied that the information on his questionnaire was true and correct it is somewhat implausible for him to claim that he may not have understood a question relating to his nationality on this questionnaire. Furthermore, since he claims to have suffered persecution on account of his African ethnicity it would seem implausible for him to make an error about a matter of such importance."

12

A further adverse credibility finding was reached in circumstances where the applicant had contended that the Janjaweed had attacked government buildings in Serba in May 2006 which the Commissioner felt was unlikely due to the fact that the Janjaweed militia was allied to the Sudanese government and such an attack would have made no sense. The Applicant's apparent ignorance of the military allegiance of the Janjaweed to the government called into question his claim to be from the Darfur region.

13

6. A Notice of Appeal was filed by the applicant's solicitors. Included in this Notice of Appeal was a paragraph stating that there had been an error in the section 13 report where "Zaribe" was stated to be a village but was in fact the Arabic word for an agricultural dwelling in which the applicant was hiding on the outskirts of Serba. The Notice of Appeal also addressed the incorrect answer given by the applicant regarding his nationality in the questionnaire, stating that he had understood that the question related to his language.

14

7. The oral hearing before the Tribunal took place on 10 th August, 2007. The decision of the Tribunal member is dated 28 th November, 2007. The Applicant was notified of the decision of the Tribunal member on 7 th January, 2008, which was to the effect that the recommendation of the Refugee Applications Commissioner should be confirmed.

The Decision of the Refugee Appeal's Tribunal.
15

8. At section 3 of the Tribunal member's report, she sets out the facts supporting the Applicant's claim for refugee status. Within that paragraph, she states that the Applicant hid in the home of a friend in the village of Zorbe.

16

9. The Tribunal member went on at section 5.3 of her report to set out how she would assess the credibility of the Applicant as required under s.11B of the 1996 Act which includes a consideration as to whether the Applicant possesses identity documents and if not, whether he had provided a reasonable explanation for the absence of such documents.

17

10. At section 6 of the decision, the Tribunal member set out her analysis of the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT