A (M A M) v Refugee Appeals Tribunal and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Cooke
Judgment Date08 April 2011
Neutral Citation[2011] IEHC 147
Date08 April 2011
Docket Number[2008 No. 648 JR]

[2011] IEHC 147

THE HIGH COURT

[No. 648 J.R./2008]
A (M A M) v Refugee Appeals Tribunal & Ors
JUDICIAL REVIEW
MR JUSTICE COOKE
APPROVED TEXT

BETWEEN

M. A. M. A.
APPLICANT

AND

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

AND

THE HUMAN RIGHTS COMMISSION
NOTICE PARTY

REFUGEE ACT 1996 S13

SECRETARY OF STATE FOR THE HOME DEPT v H (A)(SUDAN) & ORS 2007 3 WLR 832

KARANAKARAN v SECRETARY OF STATE FOR THE HOME DEPT 2000 3 AER 449

REFUGEE ACT 1996 S5

KAJA v SECRETARY OF STATE FOR THE HOME DEPT 1995 IMM AR 1

HORVATH v SECRETARY OF STATE FOR THE HOME DEPARTMENT 1999 INLR 7

MIN FOR IMMIGRATION & MULTICULTURAL AFFAIRS v RAJALINGAM 1999 FCA 719

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

REFUGEE ACT 1996 S2

GENEVA CONVENTION ART 1A

REFUGEE ACT 1996 S11

I (US) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (NOLAN) UNREP COOKE 7.4.2011 2011 IEHC 144

RSC O84 R26(4)

REFUGEE ACT 1996 S16(6)

CRIMINAL LAW

Asylum

Credibility - Prospective Risk - Rejection of past facts and events - Prospective persecution - Obligations of administrative decision maker - Whether decision maker must assess prospective risk of persecution where application for refugee status has been rejected for lacking credibility - Whether decision must be remitted for full rehearing - Karanakaran v Home Secretary [2000] 3 All ER 449, Da Silveira v Refugee Appeals Tribunal [2004] IEHC 436, (Unrep, Peart J, 9/7/2004) and USI v Minister for Justice [2011] IEHC 144, (Unrep, Cooke J, 7/4/2011) followed - Decision quashed, remitted for reconsideration (2008/648JR - Cooke J - 8/4/2011) [2011] IEHC 147

A(MAM) v Refugee Appeals Tribunal

Facts: The applicant was a national of Sudan and a member of a Tribe from Northern Darfur. His failure to provide documentary evidence had resulted in his claim for asylum status being rejected on credibility grounds. The Court had to consider in an application for judicial review whether the respondent Tribunal member had erred in failing to assess any future risk to the applicant if returned to Sudan.

Held by Cooke J. that the Court would order that the matter be remitted to the Tribunal and considered by the same member if possible. There was an obligation to consider the possible risk of future persecution on repatriation and whether there was any basis in current country of origin information relating to conditions in that country for considering whether there was a real chance of future persecution if repatriated to Khartoum.

Reporter: E.F.

1

JUDGMENT of Mr. Justice Cookedelivered the 8th day of April, 2011

2

1. The ground for which leave was granted in this case raises an issue which can be put in the form of a question as follows:

"Where past facts and events which form the basis of an application for refugee status have been rejected in whole or in part as lacking credibility, in what circumstances and on what basis is it still incumbent upon the administrative decision-maker to ask 'what if I am wrong?' and to assess whether there is nevertheless a prospective risk of persecution of the applicant if returned to the country of origin?"

3

2. The leave ground as defined in the order of the Court of the 19 th March, 2010, (Clark J.) was this:-

"Having found that the applicant's account of past persecution was not credible the Tribunal member erred in law in failing to assess any future risk to the applicant if returned to Sudan."

4

3. The applicant arrived in the State in March 2006 and claimed to be a national of Sudan and a member of the Berti tribe from northern Darfur. His claim for asylum was based on his being a Muslim and of Berti tribal ethnicity who had faced persecution at the hands of the Janjaweed militia in Darfur and attacks from the Sudanese army. He described how in February 2004, his village had been attacked, his house had been destroyed and two brothers killed. His parents, however, managed to escape. The family later went to Gula where the applicant got work driving a lorry. On the 14 th December, 2005, his lorry was attacked by men in "land cruisers". He and three others were arrested by the Sudanese army; he was tied and blindfolded and imprisoned for several weeks during which he was interrogated. He then described how in early February 2006 he was taken with others to be executed but the truck in which they were travelling got stuck in sand, an argument broke out amongst his captors and the applicant managed to escape although handcuffed. He met a man who helped him out of the hand-cuffs and he then managed to make contact with an uncle who came to his assistance and later arranged for him to leave Sudan and come by ship to Ireland.

5

4. In the s. 13 report, the Commissioner rejected this story in its entirety for lack of credibility. In a detailed analysis of the account given the Authorised Officer made the following points:-

6

· - The applicant had no identification documents, no passport and no evidence in relation to his travel to Ireland;

7

· - Country of origin information confirmed the attack on the town on the 27 th February, 2004, but it was not credible that the applicant's parents were not killed in the bombing raid when the two sons nearby were killed;

8

· - He gave conflicting accounts of this attack saying that the land cruisers came first and burned the market, but later that the planes came first;

9

· - In spite of finding himself in three life threatening situations in Darfur he was able to escape unharmed on each occasion;

10

· - In the description of the attack on the lorry convoy it was not credible that the Sudanese army would shoot some of the convoy but take the rest prisoners;

11

· - Neither was it credible that they would blindfold him while driving him to prison, an allegation which relieved him of the need to describe where he was imprisoned;

12

· - The description of being driven to execution and of the 30 minute argument between the captors when they got bogged down was implausible as was the claim that he got out of the truck and ran away when he heard shooting.

13

· - The applicant was clearly evasive and vague in his account of his journey to Ireland and could not identify either of the ships on which he travelled.

14

5. In Part 6 of the appeal decision, the "Analysis of the Applicant's Claim", the Tribunal member too finds many of theses aspects of the claim to be incredible. The analysis records further questions on these issues put to the applicant during the oralhearing and finds that the responses remained unsatisfactory and implausible. In particular, the Tribunal member notes:-

"The applicant's account of his imprisonment, in particular his claim of being kept in isolation for all of his imprisonment, is not in accord with the known facts of the prison situation that exists in Sudan. Prisons and detention centres are overcrowded, are unsanitary and the applicant's account of his alleged period in detention runs contrary to the known facts of the prisons that exist in Sudan. The applicant's account of his imprisonment and the conditions surrounding the same is seriously suspect."

15

6. The Tribunal member thus fully rejects as incredible the facts and events given by the applicant as the basis of his claim to have suffered past persecution before having to flee Sudan and the Darfur area from which he claimed to come. That, it is argued, is the full extent of the analysis made by the Tribunal member and the basis upon which the conclusion is reached that the s. 13 report and its negative recommendation should be affirmed. It is on that basis that the ground for which leave has been granted is directed at the argument that there was an obligation on the Tribunal member in those circumstances to go further and inquire as to whether, nevertheless, the applicant had a prospective risk of such persecution should he be returned to Sudan. It is argued that this is an essential step in the proper examination of an asylum claim and that even where past persecution has not been established, the decision maker must be satisfied that there is no well-founded basis for a fear of future persecution upon repatriation before the claim is rejected.

16

7. Counsel for the applicant points out that while the Tribunal member may have wholly discounted the story of a past persecution, there is no finding in the decision nor in the s. 13 Report that the applicant is not of the Berti tribe and not from Darfurand Sudan. The Tribunal member acknowledges at the very outset of the analysis that "the situation in Sudan is indeed dire" and that "the ongoing situation in and around Darfur is a cause of great concern in the international community" because "government forces have been complicit with Janjaweed militia in carrying out a war of attrition on native Africans". This, it is argued, made it imperative that the appeal decision should address the issue as to a forward looking risk of persecution should the applicant be returned to Sudan even if it is to Khartoum rather than Darfur.

17

8. On behalf of the respondents, on the other hand, it is submitted that the decision is not devoid of consideration of that issue. Counsel points to the concluding paragraph of the analysis where reference is made to the English case of Secretary of State for the Home Department v A.H. (Sudan) and Others [2007] U.K.H.L. 49. The Tribunal member notes that the House of Lords in that case ruled that it was permissible to deport Darfuri asylum seekers to Khartoum thereby overturning an earlier judgment in the Court of Appeal to the effect that as rural dwellers, Darfuris would face unduly harsh conditions in refugee camps in the capital. The House of Lords held that the Court of Appeal had not applied the correct...

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