M.S.A. v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M. H. CLARK
• Judgment Date: 13 October 2009
• Neutral Citation: [2009] IEHC 435
• Court: High Court
• Date: 13 October 2009

[2009] IEHC 435

THE HIGH COURT

[No. 881 J.R./2007]

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

JUDICIAL REVIEW

BETWEEN

M. S. A.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (PAUL McGARRY) AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11B(F)

REFUGEE ACT 1996 S11B

REFUGEE ACT 1996 S11C

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)

MUIA v REFUGEE APPEALS TRIBUNAL (O'GORMAN) & ORS UNREP CLARKE 11.11.2005 2005/40/8300 2005 IEHC 363

MUANZA v REFUGEE APPEALS TRIBUNAL UNREP BIRMINGHAM 8.2.2008 (EX TEMPORE)

CANADA (AG) v WARD 1993 2 SCR 689 1993 103 DLR (4TH) 1

K (D) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2006 3 IR 368 2006/33/6983 2006 IEHC 132

NOUNE v SECRETARY OF STATE FOR THE HOME DEPT 2001 INLR 526 2000 AER (D) 2163 2000 EWCA CIV 306

SINGH v ILCHERT, INS 63 F3D 1501

EL MERHABI v MIN FOR IMMIGRATION 2000 FCA 42

HAI v MIN FOR IMMIGRATION 2000 INLR 455 2000 HCA 19 1999-2000 201 CLR 293 170 ALR 553 2000 4 LRC 336

SEPET & ANOR v SECRETARY OF STATE FOR THE HOME DEPT 2003 1 WLR 856 2003 3 AER 304

R (SIVAKUMAR) v SECRETARY OF STATE FOR THE HOME DEPT 2003 1 WLR 840 2003 2 AER 1097

REFUGEE ACT 1996 S2

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 9(3)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 9(1)

IMMIGRATION

Asylum

Judicial review - Credibility - Fear of persecution - State protection - Convention nexus - Deliberate choice of state in which asylum application made - Whether indicative of economic migration - Obligations of asylum seekers - Muia v Refugee Appeals Tribunal [2005] IEHC 363, (Unrep, Clarke J, 11/11/2005) and Muanza v Refugee Appeals Tribunal (Ex Temp, Birmingham J, 8/2/2008) applied - Failure to consider country of origin information - Whether assessment of credibility flawed because tribunal member failed to consider country of origin information furnished - Rejection of personal credibility - Whether country of origin information could have affected fair evaluation of applicant's credibility - State protection - Whether tribunal erred in failing to consider whether state protection forthcoming - Canada (AG) v Ward [1993] 2 SCR 689 and DK v Refugee Appeals Tribunal [2006] IEHC 32, [2006] 3 IR 368 considered - Fear of persecution - Convention reason - Whether tribunal member applied incorrect causative test - Whether acts of persecution had nexus with Convention reason - Noune v Secretary of State for the Home Department [2001] INLR 526, Singh v Ilchert (1995) 63 F 3d 1501, El Merhabi v Minister for Immigration [2000] FCA 42, Chen Shi Hai v Minister for Immigration [2000] INLR 455, Sepet v Secretary of State for the Home Department [2003] 1 WLR 856 and Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 considered - R (Sivakumar) v Secretary of State for the Home Department [2003] 1 WLR 840 approved - Refugee Act 1996 (No 17), ss 2 and 11C - European Communities (Eligibility for Protection) Regulations 2006 (SI 51/2006), reg 5(3) and 9(3) - Application refused (2007/881 JR - Clark J - 13/10/2009) [2009] IEHC 435

A (MS) v Refugee Appeals Tribunal

1 This is a substantive application for judicial review of the decision of the Refugee Appeals Tribunal (RAT), dated the 15 ^th May, 2007, to affirm the earlier recommendation of the Refugee Applications Commissioner that the applicant should not be granted a declaration of refugee status. Leave was granted by Cooke J. on the 20 ^th March, 2009 and the substantive hearing took place at the Kings Inns, Court No. 1, on the 22 ^nd June, 2009. Mr. David Leonard B.L. appeared for the applicant and Mr. Daniel Donnelly B.L. appeared for the respondents.

The Asylum Application

2 The facts of the applicant's asylum history are important and are recited in detail. The applicant applied for asylum at the offices of the Refugee Applications Commissioner on the 16 ^th January, 2006 saying on his ASY-1 form that he was a national of Afghanistan from a village in the Ghazni province. He claimed that he left his wife and two children in Afghanistan and was without any identifying documentation. He claimed to have left Afghanistan on the 11 ^th November, 2005 and to have travelled to Ireland by sea and road, arriving on the 13 ^th January, 2006. He claimed not to know his place of arrival or the countries he had travelled through or how much his wife's family had paid an agent to arrange his journey.

3 The ASY-1 form records that during his preliminary s. 8 interview the applicant gave the following information:-

" Applicant states that he had never applied for asylum before, in this or any other country. Applicant states that he went to search houses in Gharbagh village (Ghazni) with Taliban members, 4 months ago, they found guns in people's houses (the people who work with the current government). He states these people (whose house they searched) are now trying to kill him."

4 It was also recorded that the applicant later wished to clarify that "they searched house from members of the Wahdat group (who are against the Taliban)."

The Questionnaire

5 The applicant completed an ORAC questionnaire on the 27 ^th January, 2006 in which he again said he lived in Afghanistan until he came to Ireland and that he worked for twenty years as a farmer. He said that he had no identity card as his father had kept it and it had been lost with him when he was "martyred" by the Taliban. He claimed to be illiterate and had no education and that his questionnaire was filled in by a Kurdish man in the hostel where he was staying. He claimed to fear persecution by reason of his nationality and his political opinion. When asked why he left Afghanistan he said that originally his family had been persecuted by the Taliban as they were supporters of the Wahdat party. The Taliban killed his father and imprisoned the applicant for six months after which he was forced to work for the Taliban. When the Taliban were removed and the new government was established the Wahdat party supported the government. A person by the name of Q.A. sent " strange people" to the house of the applicant's brother to kidnap them. The applicant went to the local police station and clearly explained his problems but he received no assistance from the police so he went to a friend's house for two months and then left Afghanistan. He entered Ireland "illegally by a smuggler". He travelled by foot and by lorry and his father-in-law paid the money to the smuggler. Again he said he did not know what countries he had travelled through and said that he had not applied for asylum in any other country.

The s. 11 Interview

6 The applicant attended for his s. 11 interview on the 26 ^th June, 2006. He submitted no documentation. He repeated the claim that he had left Afghanistan by truck two months before he arrived to Ireland (that would have been roughly mid-November, 2005) and that immediately before that he lived in his family home in Qharabagh, Ghazni province where he had lived all of his life. He didn't give any dates and said "I don't know any of the years in Afghanistan". He clarified that his imprisonment by the Taliban for a period of six months was six years before he came to Ireland (i.e. 1999 / 2000). He was tortured while in prison and lost the sight in one eye and sustained several scars. He did not fear the Taliban at the time he left Afghanistan; his only fear was of the Karzai government because of his past activities for the Taliban.

7 The applicant described how after his release by the Taliban he had been forced to accompany members of the Taliban in searching the houses of people in his own and surrounding villages. This occurred about five years before he left for Ireland. The people in the houses saw him doing this work. During one of these searches, the Taliban killed A.A., the brother of Q.A. who is now a member of the Karzai government and for the previous year had been responsible for security of the applicant's province. For that reason the applicant now feared that Q.A. and his followers would kill him if they found him. His problems with Q.A. started two months before he left for Ireland (according to his account that would have been roughly September, 2005), when Q.A. sent people to the applicant's house and to his brother's house. The applicant had no documentation to support that claim. He said his mother had been beaten in the family home. She asked why he was being searched for and told him he should change his behaviour. His in-laws arranged for his travel to Ireland.

8 The applicant was asked in several different ways if he was sure he had never been outside of Afghanistan before travelling to Ireland and on each occasion he said he had not been outside of Afghanistan before. He was then told that there was a positive fingerprint confirmation that he was in another E.U. Member State before coming to Ireland and said "No I was never outside of Afghanistan before my journey to Ireland" and "No, it is not me."

The s. 13 Report

9 The s. 13 report prepared following his interview contained a negative recommendation. The authorised ORAC officer noted that the applicant claimed to have been targeted in late 2005 even though the Taliban collapsed in late 2001 and even though he said his family had remained at the home location. He noted that the applicant had nothing to support his claim that he was targeted by a man named Q.A. He also noted that the applicant had denied being outside of Afghanistan and said he remained at the family home until November, 2005 but that a Eurodac "hit" and a letter from the Greek authorities indicated that he had been in Greece on the 27 ^th November, 2004. The ORAC officer...