M.G.U. v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Clark
• Judgment Date: 22 January 2009
• Neutral Citation: [2009] IEHC 36
• Court: High Court
• Date: 22 January 2009

[2009] IEHC 36

THE HIGH COURT

[No. 642 J.R./2006]

U (M G) v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

BETWEEN

M.G.U.

APPLICANT

AND

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

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

REFUGEE ACT 1986 S134

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PARA 56

REFUGEE ACT 1996 S13(6)

REFUGEE ACT 1996 S11(B)

REFUGEE ACT 1996 S17

REFUGEE ACT 1996 S8

REFUGEE ACT 1996 S3(3)(a)

REFUGEE ACT 1996 S11(C)

REFUGEE ACT 1996 S9(4)(a)

REFUGEE ACT 1996 S9(5)

REFUGEE ACT 1996 S16

MOYOSOLA v THE REFUGEE APPLICATIONS CMSR & ORS UNREP CLARKE 23.6.2005 2005/40/8261 2005 IEHC 218

IDIAKHEUA v MIN FOR JUSTICE & ORS UNREP CLARKE 10.5.2005 2005/31/6357 2005 IEHC 150

KHAZADI v MIN FOR JUSTICE & ORS UNREP GILLIGAN 19.4.2007 (EX TEMPORE)

KIKUMBI v REFUGEE APPLICATIONS CMSR UNREP HERBERT 7.2.2007 2007 IEHC 11

IMMIGRATION

Asylum

Judicial review - Leave -Documentary appeal - Fear of persecution based on membership of political party - Alleged corrupt prosecution for murder - Failure to provide evidence of unjust nature of trial - Whether applicant fleeing prosecution rather than persecution - Adverse inferences - Failure to seek asylum on arrival - Negative credibility findings - Factors aiding assessment of credibility - Alleged breach of fair procedures - Flawed treatment of country of origin information - Alleged failure to consider medical evidence - Alleged error of fact - Alleged failure to take account of past maltreatment - Whether doubts regarding authenticity of letter should have been put to applicant - Assessment founded on examination of applicant's own documents - Absence of reliance on new or undisclosed document -Whether substantial grounds for review of deportation orders - Moyosola v Refugee Applications Commissioner [2005] IEHC 218 (Unrep, Clarke J, 23/6/2005) and Idiakheua v Minister for Justice [2005] IEHC 150 (Unrep, Clarke J, 16/5/2005) distinguished; Kikumbi v Refugee Applications Commissioner [2007] IEHC 11 (Unrep, Herbert J, 7/2/2007) considered - Refugee Act 1996 (No 17), ss 11 and 13 - Leave refused (2006/642JR - Clarke J - 22/01/2009) [2009] IEHC 36

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

Factual Background

1 The applicant's refugee application questionnaire indicates that he claims to be from Bangladesh and he speaks Bengali. He says that he arrived in the State on the 25 ^th September, 2003 at Dublin Airport but he did not apply for asylum as he was unaware of the asylum system. Later, when he met other Bangladeshi nationals, he was told that no Bangladeshi asylum seekers are ever successful in applications for refugee status and that if he were to try for asylum and fail, he would be returned to Bangladesh. He therefore did not apply.

2 He was arrested by Garda in Kilkenny on the 4 ^th April, 2004, for an undisclosed offence and while in custody he obtained access to legal advice and then applied to ORAC for asylum on the 24 ^th April, 2004.

3 He asserts that he comes from a family tradition of politics and claims that he fears persecution because of his membership of the Bangladesh Awami League which is the main opposition party in the country. He says he was the financial secretary of the Lakshimpur District Unit of the Awami Juba League, the youth wing of the party.

4 He claims that his problems arose in December, 2001 because his family is financially comfortable causing it to be targeted for a corrupt prosecution for murder as his father had refused to pay a "ransom" to Government supporters when building a multi-storey building in his town. The result of this refusal was that his father and his near relatives, including himself, were prosecuted for the murder of the brother of a Government party representative. The victim of the murder was involved in a property dispute with members of the applicant's family and a case is pending in the Civil Courts arising out of that dispute. He described the death of the murder victim as having occurred during a looting incident when three people were shot. One man died from his injuries and one of the survivors who he named as Bahai Munshi was persuaded by ruling party terrorists to make a complaint against the applicant, his father, his elder brother and his cousin who were accused of conspiracy to rob and murder. His father was arrested two days later and when he became aware of the charges against him he and his brother and cousins fled the town and he remained in hiding in Dacca since then, moving every couple of days.

5 He claimed that in January the following year he was taken by government supporters to their office where he was tortured for several hours and thrown into the street in an unconscious condition. People in the street sent him to hospital where he was treated. Following the trial, which he describes as a farce, his elderly father was sentenced to imprisonment for five years; the applicant was sentenced to fourteen years; his elder brother seven years and his two cousins five years each. The applicant claimed that before the trial he lived in many different addresses, mainly in Dacca, before he arrived in Ireland at Dublin Airport on the 25 ^th September, 2003, having first travelled through India and Russia.

6 He claimed that he had a visa to travel to Ireland but did not know from where this visa was obtained. He had a passport which he used to enter the State but this passport was stolen or mislaid shortly after he arrived. He did not know the airline on which he travelled or the town in Russia where the plane landed. He thought the flight from Russia to Dublin took eleven or twelve hours. He described the death of the victim of the trumped up murder charges as having occurred during a looting incident when three people were shot. One man died from his injuries and one of the survivors who he named as Bahai Munshi made a complaint against the applicant, his father, his elder brother and his cousin who were accused of conspiracy to rob and murder. His father was arrested a few days later. When he fled the country to Ireland he was in fear for his life and only arrived here by spending a lot of money and with the help of agents. In Bangladesh he faces the threat from the ruling party and the sentence of fourteen years imprisonment on his head as a result of conspiracy. On that basis he sought political asylum to save him from "persecution and torture".

ORAC Interviews

7 The applicant was interviewed by ORAC on three separate occasions spread over a four month period as he required time to obtain documents from Bangladesh. His first interview was held on the 30 ^th August, 2004 when he was assisted by a translator as he claimed to only speak Bengali. The applicant claimed that he was educated to third level and that he attended the National University at Gazipur for two years studying to become a Batchelor of Commerce. He failed his degree exam in 1996 and since then was financially supported by his father while he worked with the Awami League. At the first interview the only documents which he had were his birth certificate and a letter from the Awami League which he said were procured for him by a friend in Bangladesh. He informed the interviewer that he hoped to be in a position to furnish further documents within the next few weeks.

8 He said that he had supported himself since he arrived as he had a thousand dollars and a thousand pounds Sterling with him when he arrived. Before he came, the agent told him that he was sending him to Ireland and he came to be safe and to save his life. His uncle knew the agent who organised everything. The agent provided the passport with a name similar to his own and also supplied him with a false Royal College of Physicians card with his own photograph naming him as Dr. Gias Uddin Ahmed. With that card and the passport he said that had no difficulty getting through Immigration.

9 The second interview was held on the 27 ^th October, 2004. On this occasion he brought a number of documents including photographs of the building owned by his father and uncles which had been sent by a friend in Bangladesh. He also furnished photocopy original secondary school certificates, a higher secondary examination certificate and exam documents from the National University of Gazipur which were translated into English.

10 In his second interview he described the incident as a robbery occurring in December 2001 in a house in the village nearby and someone was shot at and got injured. That person was brought to hospital and died that night. The next day the victim's brother, C.H., went to the police and reported the applicant and his father, elder brother, two cousins and other people. The reason they were reported was because the applicant was "secretary" for the Awami League in that area and also because his family already had problems with the Rial family and "perhaps because they were told by the BNP to report us to start a scandal because the family had refused to give them money before."

12 He said his father was the only accused present for the trial and that he is presently in prison in Lakshmipur. The victim's family are in the ruling Bangladesh Nationalist Party (BNP) while the applicant was in the opposition. The applicant believed that he would not be given a fair trial because the victim's family were powerful and had connections. In describing his political activities he said that he was the accounts secretary of the Awami League of the Lakshmipur District and was responsible for accountancy and budgeting. He joined the Party when he was a student around 1993-1994. When he was in college he joined the Juba League part of the Awami League. After he joined the Juba League he joined the main Awami...