A. M. K. (A Minor) v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 25 July 2014
• Neutral Citation: [2014] IEHC 380
• Date: 25 July 2014
• Court: High Court

[2014] IEHC 380

THE HIGH COURT

[No. 121 J.R./2012]

K (AM) (a minor) v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

BETWEEN

A. M. K. (A MINOR)

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S11

GIOSHVILE v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY & IRELAND & AG UNREP FINLAY GEOGHEGAN 31.1.2003 2003/23/5461

T (AM) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2004 2 IR 607 2004/49/11175 2004 IEHC 219

KEAGNENE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (NICHOLSON) UNREP HERBERT 31.1.2007 2007/31/6465 2007 IEHC 17

A (A) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (BRENNAN) UNREP EDWARDS 3.2.2010 2010/1/14 2010 IEHC 143

Immigration and asylum – Country of origin information – Credibility – Applicant seeking asylum due to fear of Afghan authorities – Whether applicant”s failure to seek asylum earlier was not indicative of a genuine fear of persecution

Facts: The applicant is an Afghan national. His father and brother had been members of the local Taliban. In 2002, commanders that were part of the new government took them away and they are presumed dead. When the applicant reached adulthood, the same commanders sent letters to his uncle saying he should be handed over to them, the last of which threatened that if he was not, then the uncle, the uncle”s son and the applicant would be killed. The local police said they would not offer protection. The uncle and another paid for his travel with an agent by land and sea to Ireland, passing through Iran and Turkey. The applicant did not seek asylum in Iran or Turkey stating that there was no asylum in operation there. The Commissioner found that the applicant had not provided a reasonable explanation for not seeking asylum as soon as possible. The applicant appealed to the defendant, the Refugee Appeals Tribunal, in 2011, submitting country of origin information to the effect that in reality there was no reasonable asylum system in operation in Iran, and a very limited form for non-Europeans in Turkey. The Tribunal decided that the applicant”s account was not credible, finding that his failure to seek asylum was not generally indicative of a genuine fear of persecution. O”Keefe J granted the applicant leave to seek certiorari of the Tribunal decision before the High Court on the grounds that the Tribunal failed to have regard to the country of origin information before it made an unnatural error of fact and law. The applicant argued that a refugee applicant is not obliged to apply for asylum in the first safe country, referring to Gioshville v Minister for Justice, Equality and Law Reform & Ors (Unreported, 21st January, 2003).

Held by Barr J that, having considered the country information submitted by the applicant on Iran and Turkey including the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan (July 2009), the United States Committee for Refugees World Refugee Survey 2009, the UNHCR's Global Report of 2008, and Amnesty International's 2009 Report titled "Stranded-Refugees in Turkey Denied Protection", the Tribunal failed to have regard to the country information before it, because had it done so, it would not have reached the opinion that the UNHCR operated asylum systems in both countries. Alternatively, if it did have regard to the information available, it was in error when it determined that the UNHCR operated asylum systems in both countries. Barr J held that the applicant”s submission is well founded. Barr J held that the Tribunal made a material error in that it contributed directly to the rejection of the applicant's credibility. In rejecting the applicant's credibility on the basis of this error, Barr J held that the Tribunal erred in law, referring to Keangnane v Minister for Justice, Equality and Law Reform & Anor [2007] IEHC 17. Barr J held that in such circumstances where the impugned finding is one of a series of cumulative findings and where it is not known what weight was attached to each particular finding, it is necessary to quash the entire decision. Furthermore, given that there were reasons leading to a finding of lack of credibility, Barr J held that it is not possible to sever the impugned finding from the remainder, which may be possible had the impugned finding related to a discrete and severable issue, such as the question of internal relocation as a credible alternative.

Barr J held that the decision of the Refugee Appeals Tribunal be quashed and directed that the matter be referred back to the Tribunal for determination before a different Tribunal Member.

Application granted.

1 JUDGMENT of Mr. Justice Barr delivered the 25th day of July, 2014

Background

2 1. The applicant lived with his father, mother and brother in Ghorband District, Afghanistan. His father and brother had been influential figures in the local Taliban organisation. His father and brother were blamed for killing innocent people and taking their lands and shops. When the Taliban was overthrown, the applicant's father and brother could not get jobs due to their previous misdeeds. The applicant stated that relatives of the victims of his father and brother reported their crimes to the new government. In December 2002, two commanders who were part of the new government and were members of the Afghan army came to the applicant's house and took his father and brother away. They never returned and are presumed dead.

3 2. After his father's death, the applicant lived for eight years with his mother at his maternal uncle's house in Alam Khel village. The applicant states that he did not go to school because the people who killed his father and brother could have harmed him. As he was growing up, he was bullied and assaulted in the village.

4 3. At his s. 11 interview in June 2010, he said that about a year and a half previously, he was caught by villagers who hit him. The next day villagers who had suffered at his father's hands pushed him off a high rocky mountain. He fell, hit his head, fainted and bled heavily. He injured his head and neck. His doctor prescribed medication and he was in hospital for a few days. His neck was in a cast and he could not move. After that he stayed at home doing nothing.

5 4. As he grew older, his life became more difficult and the local people informed the commanders when he reached adulthood. Fearing that the applicant would continue the crimes of his father and uncle, the commanders' relatives requested them to take revenge. Seven or eight months before his s. 11 interview, the two commanders who had killed his father and brother sent letters to the applicant's uncle saying the applicant should be handed over. There were four or five letters and the last letter threatened that if the applicant was not handed over, the uncle and his son, and the applicant, would be killed. His uncle went to the local police station and told them how he feared the applicant might be harmed, but they said that they could not offer protection. They said to go to Kabul, which was nearby, and ask a government agency for help. The applicant could not do that as it was people from the government who were sending the letters.

6 5. In March 2010, he went to Mazar-e-Sharif in Balkh province and spent one and a half to two weeks with his two married sisters and his uncle. During that time, people came to his uncle's home in Alam Khel looking to take him away and kill him. They destroyed his uncle's home. His mother sent word that he should not return as they were looking for him. His uncles in Mazar-e-Sharif said that they could no longer keep him as they would be in danger. An uncle entered negotiations with a trafficker. His uncle and mother paid $12,000 between them for his travel with an agent by sea and road through Iran, Turkey and other unknown countries. He arrived in Ireland by sea and took a train to Dublin.

7 6. The applicant states that he was brought on the journey in a truck, which stopped from time to time, but always in jungles or other deserted places where there were no people around. He says that he was not allowed to speak to the people who opened the container. He could not question them. When asked as to why he did not seek asylum in either Iran or Turkey, the applicant stated that he did not do so because there was no asylum system in operation in either country. The Commissioner found as follows in his report:-

"However, it is considered that the UNCHR operate in both Iran and Turkey and it is reasonable that he would have sought asylum in those or the other countries he travelled through. The applicant has not provided a reasonable explanation for not seeking asylum as soon as possible and this serves to undermine the well foundedness of his claim."

8 7. The applicant appealed this decision to the RAT. In advance of that hearing, the applicant submitted a large volume of country of origin information to the effect that in reality there was no recognisable asylum system in operation in Iran and that in Turkey there was a very limited form of asylum for non-Europeans. This will be referred to in greater detail later in this judgment.

9 8. The Tribunal reached the decision that the applicant's account was not credible. It gave a number of reasons as to why that decision was reached. In relation to the failure to seek asylum in either Iran or Turkey, the RAT stated as follows:-

"The Tribunal finds the applicant's failure to claim asylum in either Iran or Turkey to be not generally indicative of a genuine fear of persecution. His explanation for that failure to the effect that it was impossible to claim asylum in either of those countries was not reasonable or credible given that it is not in accordance with reality where the...