M. H. Z. v Refugee Appeals Tribunal and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Colm Mac Eochaidh |
| Judgment Date | 27 March 2014 |
| Neutral Citation | [2014] IEHC 156 |
| Court | High Court |
| Date | 27 March 2014 |
[2014] IEHC 156
THE HIGH COURT
BETWEEN
R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353
ISLAM v SECRETARY OF STATE FOR THE HOME DEPT 1999 2 AC 629 1999 2 WLR 1015 1999 2 AER 545
SARHAN & DISI v HOLDER 658 F3D 649 (7TH CIR 2011)
ACOSTA, IN RE 19 I & N DEC 211 (BIA 1985)
SKENDERAJ v SECRETARY OF STATE FOR THE HOME DEPT 2002 4 AER 555 2002 IMM AR 519 2002 INLR 323 2002 AER (D) 267 (APR) 2002 EWCA CIV 567
M (S) v REFUGEE APPEALS TRIBUNAL & ORS UNREP EDWARDS 15.10.2009 2009/37/9141 2009 IEHC 462
Immigration and asylum – Refugee status – Membership of a particular social group – Applicant seeking refugee status due to fear of wrongful conviction by Afghan authorities – Whether applicant”s subjective fear is objectively justified
Facts: The applicant is a citizen of Afghanistan. He sought asylum, claiming he had a well-founded fear of persecution on the basis of his sexual relationship with an unmarried woman who became pregnant as a result. He claims the woman was a niece of a local commander who is part of the ruling regime. It is alleged the commander killed his niece and sought to frame the applicant for her murder. The applicant claimed an arrest warrant issued in his name and that he was forced to flee Afghanistan to avoid wrongful prosecution. In this telescoped application the applicant sought leave to apply for judicial review from the decision of the respondent, the Refugee Appeals Tribunal, which recommended he not be declared a refugee. The Tribunal had concluded that the applicant”s fears were not objectively well founded. The applicant alleges that the Tribunal failed to have proper regard to the arrest warrant, relying upon I.R. v Minister for Justice, Equality and Law Reform [2009] IEHC 393, and failed to properly consider the country of origin information submitted which, it was argued, corroborated the applicant”s narrative. The applicant also submitted that there was a Convention nexus to his claim as he qualified as a member of a particular social group with a unifying characteristic, namely a person who had violated strict Islamic codes of behaviour, and that the Tribunal misunderstood the test for establishing a particular social group, citing Islam v. Secretary of State for the Home Department, Regina v Immigration Appeal Tribunal and Another, Ex parte Shah [1999] 2 A.C. 629.
Held by Mac Eochaidh J, having accepted the submissions of the respondent, that the Tribunal member had regard for the arrest warrant but did not consider it to provide objective evidence that a person framed for a murder that he could prove he did not commit would not be in a position to avail of the protections of the Afghan legal system. Mac Eochaidh J also accepted the respondent”s submission that when the country of origin information was read in its entirety, it showed that power is limited in terms of both its force and scope to relatively small areas such that there is no evidence that a local commander could subvert the legal system. Mac Eochaidh J accepted the respondent”s submissions that there was no factual basis in the information provided by the applicant to substantiate his claim of membership of a particular social group, reviewing Secretary of State for the Home Department v Skenderaj [2002] EWCA Civ 567. There was no evidence that the dispute between the applicant and the commander was anything other than a personal reprisal.
Mac Eochaidh J held that the applicant”s subjective fears are not objectively well founded and that there was no legal error in the Tribunal”s decision. The judge rejected the applicant”s case with respect to a failure to consider the arrest warrant and country of origin information. The High Court held that the Tribunal”s decision was a lawful conclusion on the question of membership of a social group and correctly decided that the applicant had not established a Convention nexus in relation to his feared persecution; the applicant failed to make out membership either factually or legally. Mac Eochaidh J declined to grant the applicant leave to seek judicial review.
Application refused.
1. This is a 'telescoped' application for leave to seek judicial review of a decision of the Refugee Appeals Tribunal dated 20 th September 2009 refusing the applicant a recommendation of refugee status. The applicant was granted temporary residence in the State on the basis of his marriage to an Irish citizen in 2010, but notwithstanding this, he is proceeding with his challenge to the legality of the Tribunal decision.
2. The applicant was born on 15 th October 1983 and is a citizen of Afghanistan. He states that he fled his home country on 6 th March 2007, arrived in the State on 2 nd April 2007 and claimed asylum here on the 10 th April 2007, The applicant claims he has a well founded fear of persecution in his home country on the basis of sexual relationship with an unmarried woman who became pregnant as a result. The applicant claims that the woman was the niece of a senior local commander who is part of the ruling regime within Afghanistan. On discovering the relationship, it is alleged that the commander killed his niece and sought to frame the applicant for her murder. The applicant claims an arrest warrant issued in his name and that he was forced to flee Afghanistan in order to avoid being wrongfully prosecuted of a crime he didn't commit.
3. The decision of the Tribunal Member in this case, unlike many others which the court has read, is not based on the adverse credibility of the applicant. On the contrary, the Tribunal states that "Since the applicant has provided a number of documents that purport to corroborate aspects of his claim, in that regard it may be said that his story with regard to the...
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