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

• Jurisdiction: Ireland
• Judge: MS. JUSTICE CLARK,
• Judgment Date: 12 May 2009
• Neutral Citation: [2009] IEHC 217
• Judgment citation (vLex): [2009] 5 JIC 1201
• Court: High Court
• Date: 12 May 2009

[2009] IEHC 217

THE HIGH COURT

[No. 681 J.R./2006]

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

JUDICIAL REVIEW

BETWEEN

M.M.A.

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11B(A)

REFUGEE ACT 1996 S11B(B)

REFUGEE ACT 1996 S11B(C)

REFUGEE ACT 1996 S11B(F)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)

N (N) v REFUGEE APPEALS TRIBUNAL (O'BRIEN) & ORS 2008 1 IR 501 2007/43/9122 2007 IEHC 230

REFUGEE ACT 1996 S11B

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

MUANZA v MIN FOR JUSTICE UNREP BIRMINGHAM 8.2.2008 (EX TEMPORE)

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

GILINGIL v REFUGEE APPEALS TRIBUNAL & ORS UNREP FEENEY 1.6.2006 2006/26/5646 2006 IEHC 302

EVUARHERHE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 26.1.2006 2006/23/4726 2006 IEHC 23

KIKUMBI & ANOR v REFUGEE APPLICATIONS CMSN & ANOR UNREP HERBERT 7.2.2007 2007 IEHC 11

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

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

IMMIGRATION

Asylum

Leave - Credibility - Country of origin information - Internal relocation - Medical report dismissed by respondent because of failure to conform with terms of Istanbul Protocol - Extension of time - Applicant asserting difficulty in obtaining translator - Whether good and sufficient reason for extending time - Whether purported errors severable from decision - Whether decision internally incoherent - Whether substantial grounds - N v RAT [2007] IEHC 230 [2008] 1 IR 501, S v Minister for Justice [2005] IEHC 395 (Unrep, Peart J, 24/11/2005), G v RAT [2006] IEHC 302 (Unrep, Feeney J, 01/06/2006), E v Minister for Justice [2006] IEHC 23 (Unrep, Clarke J, 26/01/2006), K v Minister for Justice [2007] IEHC 11 (Unrep, Herbert J, 07/02/2007) and I v Minister for Justice [2005] IEHC 182 (Unrep, Clarke J, 27/05/2005) considered - Refugee Act 1996 (No 17), s 11B - Illegal Immigrants (Trafficking) Act 2000 (No 20), s 5 - Leave granted (2006/681JR - Clark J - 12/5/2009) [2009] IEHC 217

A (MM) v Minister for Justice, Equality and Law Reform

Facts: The applicant, who was a national of Sudan, sought leave to apply for judicial review of the decision of the second named respondent affirming the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicant should not be declared a refugee. The applicant claimed persecution due to his race and gave evidence of an attack, which resulted in injuries to his knee. The ORAC officer made several negative credibility findings against the applicant and in particular found the applicant to be in fundamental error regarding certain matters, including the existence of a village named Jenjanat and the relative locations of towns and villages in his native area. The ORAC officer also found that county of origin information (COI) did not support key elements of the applicant’s claim insofar as there was no record whatsoever of Jenjenat or Sharotyah at the locations indicated by the applicant. The applicant attached documentation to his appeal form, namely a medical report from his G.P. and a newsletter compiled by the Sudan Organisation Against Torture (SOAT) from November - December 2004, which made reference to the village of Jenjenat. The second named respondent stated that he considered the medical report in light of the provisions of the Istanbul Protocol. The respondent also made several negative credibility findings in relation to the applicant. The applicant submitted that the second named respondent breached fair procedures by failing to address the issues supporting the recommendation of ORAC and instead dealing with the appeal on other bases. The applicant also submitted that there was a flawed assessment of credibility, a flawed assessment of the availability of internal relocation and a failure by the respondent to address the core elements of the applicant’s claim.

Held by Clark J. granting the applicant leave: That it was a matter of concern that the medical report submitted by the applicant was dismissed by the respondent simply because the wording used did not conform to the terms of the Istanbul Protocol. The contents of the medical report were capable of supporting the attack as described by the applicant. It was a further matter for concern that the SOAT report, which contained details of an attack on the villages described by the applicant was rejected without discussion. It seemed that there was no substantive basis set out in the decision for rejecting the applicant’s core description of the reasons for his flight from Sudan. Instead there was a concentration on other issues. At the very least the medical report and SOAT report ought to have been considered by the respondent.

Reporter: L.O’S.

1 The applicant is seeking leave to apply for judicial review of the decision of the Refugee Appeals Tribunal ("RAT"), dated the 28 ^th March, 2006, to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner ("ORAC") that the applicant should not be declared a refugee. The hearing took place on 14 ^th March, 2008 and 1 ^st April, 2008. Mr. Mark de Blacam S.C. and Mr. John Stanley B.L. appeared for the applicant and Mr. Anthony Moore B.L. appeared for the respondents.

The asylum application

2 The applicant claims to be a national of Sudan, a Muslim and a member of the Masalite / Massaleit tribe of Darfur, which is a black African tribe as opposed to an Arabic tribe. He was born in Khartoum and Arabic rather than the Masalite dialect is his first language. He arrived in the State on 13 ^th January, 2005 and applied for asylum the following day claiming to fear persecution by reason of his race. He had no identity documentation, saying he left his nationality certificate in his father's lorry in Sudan. In his ORAC questionnaire he indicated that he was born in 1981 and grew up in the village of E1 Jenjenat in the North Darfur province of Sudan. He attended the local school between 1988 and 1996 and he then worked as a herder on his father's farm. He said he left Sudan because of the "war led by the terrorist government, along with its support for the Arab tribes (the Janjawid), and the ethnic cleansing that they engage in against us, killing and scattering and expropriating our precious animal and farming resources." He said millions of his tribes people had been expelled and thousands killed and that those who resist face death, hunger, thirst or sickness owing to "the siege mounted by the government, which prevents them from receiving assistance." When asked why he did not move to another town or village to avoid persecution, the applicant answered:

"We suffer from racism and ethnic cleansing throughout Sudan, even in our village. So how could I go to some place where I would be persecuted and where I would have no home to live in? As such I opted to remain in my village amongst my family and neighbours, in my home."

3 He feared that if he returned to Sudan "They would kill me immediately" because they were trying to wipe out his tribe. On the subject of his travel arrangements he said he escaped his village on foot and went to the neighbouring village of Sharnaya: "All the villagers were fleeing from the approaching Arabs". He had some money and paid some traffickers who brought him to Libya and on to Ireland. All his documents were translated as the applicant spoke no English.

The s. 11 Interview

4 The applicant attended for his s. 11 interview on 13 ^th October, 2005. He was assisted by an interpreter. The applicant was asked questions about his education, his father's farm and the events of 2004. He said his village of Jenjenat is located in the district of Tawila, governance of Al Fashir. At school he learned Arabic, Islamic education, maths, geography, history and some English. After school he worked with his father, shepherding sheep, goats, cows and camels. They sold the animals in Al Fashir, sometimes Kutum and Al Tawila markets.

5 He said his problems began around 17-20 ^th February, 2004 when he and his father were in his father's lorry, returning from the market at Tawila. His father left him with the lorry, which had merchandise aboard (sugar, tea, oil and soap). Three uniformed, armed persons surrounded the lorry and demanded to see his licence. He did not have it and asked them to wait for his father. One went inside the lorry looking for its papers. When the applicant asked him to get out they stabbed him in the knee with a bayonet, called him a "slave" and made off with the merchandise. Upon his return the applicant's father took him to the hospital in Korma where he spent one week and was operated on. Six weeks later he had his cast removed.

6 When asked what happened next he said there was a lot of stealing in the area around that time. On 28 ^th November, 2004, roughly 250 people came on horseback to the applicant's village and opened fire for no reason. He and the other villagers ran for their lives to a forested area nearby. They did not return to the village but instead walked by night to another village, Shagiyra, three or four hours away. The people in that village were also fleeing. The applicant and his fellow villagers walked with them to Shartoyah, where they arrived early the next morning. People were leaving in lorries. Some other villagers who had fled Jenjenat came through Shartoyah and the applicant learned that Jenjenat had been burned and everything had been stolen. The applicant stayed at the marketplace, hoping for a lorry. The...