M.T.T.K. [D.R Congo] v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Kevin Cross
• Judgment Date: 20 April 2012
• Neutral Citation: [2012] IEHC 155
• Court: High Court
• Date: 20 April 2012

[2012] IEHC 155

THE HIGH COURT

[No. 1337 J.R./2008]

K (MTT) [Democratic Republic of Congo] v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

BETWEEN

M.T.T.K. (DEMOCRATIC REPUBLIC OF CONGO)

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S17(1)(B)

A (B) & D (M) v SECRETARY OF STATE FOR THE HOME DEPT UNREP 21.7.2005 2005 UK IAT 118

MUIA v REFUGEE APPEALS TRIBUNAL UNREP CLARKE 11.11.2005 2005/40/8300 2005 1 IEHC 363

SALIM v REFUGEE APPEALS TRIBUNAL UNREP BIRMINGHAM 15.9.2010 (EX TEMPORE)

V (F) v REFUGEE APPEALS TRIBUNAL UNREP IRVINE 28.5.2009 2009/56/14311 2009 IEHC 268

TALBOT v BORD PLEANALA 2009 1 IR 375

I (S) v MIN FOR JUSTICE UNREP FINLAY-GEOGHEGAN 11.5.2007 2007/29/5959 2007 IEHC 165

OKITO v REFUGEE APPEALS TRIBUNAL UNREP 16.7.2010 (EX TEMPORE)

MUTOMBO v REFUGEE APPEALS TRIBUNAL UNREP MCARTHY 2009 (TRANSCRIPT NOT AVAILABLE)

L (Y) v REFUGEE APPEALS TRIBUNAL UNREP CLARK 7.10.2009 2009/32/7955 2009 IEHC 433

IMMIGRATION LAW

Asylum

Fear of persecution - Ethnicity - Whether respondent considered ethnicity as a separate and distinct point - Whether finding of lack of credibility amounted to sufficient consideration of ethnicity point - Failed asylum seeker - Whether respondent should have considered situation for failed asylum seekers in Democratic Republic of Congo - Whether respondent had jurisdiction to consider situation for failed asylum seekers - County of origin information - Whether cogent, objective and authoritative evidence of persecution of failed asylum seekers - Whether court confined to examining existence of cogent information without engaging with merits - Whether respondent made error of jurisdiction - Whether respondent unreasonable in deciding applicant could have applied for protection in South Africa - Whether conclusions went beyond credibility findings - Whether errors rendered entire decision irrational - FV v Refugee Appeals Tribunal [2009] IEHC 268 (Unrep, Irvine J, 28/5/2009) approved - Muia v Refugee Appeals Tribunal [2005] IEHC 363 (Unrep, Clark J, 11/11/2005) and Talbot v An Bord Pleanála [2008] IESC 46, [2009] 1 IR 375 distinguished - Decision quashed, rehearing ordered (2008/1337JR - Cross J - 20/4/2012) [2012] IEHC 155

K (MTT) v Refugee Appeals Tribunal

Facts The applicant had applied for and was refused refugee status by the Refugee Appeals Tribunal (RAT). The applicant had based his claim on a fear of persecution arising from reasons of race, imputed political opinion and being a member of a particular social group. An order of certiorari to quash the RAT decision and a further order directing that his claim be remitted for rehearing. It was contended that the RAT had misunderstood its own jurisdiction and consequently failed to adjudicate upon the risk to the applicant if he was returned to the Democratic Republic of Congo (DRC) as a failed asylum seeker. It was submitted that the Tribunal had failed to make clear whether or not it was rejecting the claim. On behalf of the respondents it was submitted that even if the Tribunal Member had erred in not considering whether the applicant would face a risk of persecution due to his status as a failed asylum seeker, the matter was an irrelevance as the evidence that had been put before the RAT was implausible.

Held by Cross J in quashing the order in question and remitting the matter back for consideration: At no point in the decision did the Tribunal Member weigh the merits of the claim. The matter of the applicant”s ethnicity was one which ought to have been considered by the RAT. While it could not categorically be stated that all failed asylum seekers were at risk upon return to DRC, a category of them by virtue of their ethnicity were potentially at risk according to the UNHCR and the RAT had failed to consider these risks. This error was of such a nature of itself to warrant setting aside the decision. The Tribunal Member also went far beyond the question of the credibility of the applicant when he made a number of assumptions about South African immigration law.

1 JUDGMENT of Mr. Justice Kevin Cross delivered the 20th day of April, 2012

2 1. This is an application for judicial review of the decision of the Refugee Appeals Tribunal (RAT) dated 29 ^th October, 2008, which affirmed the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicant should not be granted a declaration of refugee status. Leave was granted by Hogan J. on 17 ^th November, 2011, on a number of grounds that centred on the following three issues:-

3 (a) the risk arising to the applicant due to his alleged ethnicity, Tutsi and/or perceived connections to Rwanda;

4 (b) the risk arising to the applicant by virtue of his position as a failed asylum seeker; and

5 (c) any benefit that the applicant is derived from the South African immigration system by virtue of his marriage to a citizen of that country.

6 2. The applicant is seeking an order of certiorari to take up and quash the RAT decision and a further order directing that his claim be remitted for rehearing and for an injunction restraining the second named respondent from taking any steps pursuant to s. 17(1)(b) of the Refugee Act 1996 (as amended) to affirm the recommendation of the first named respondent to deny the applicant refugee status and/or to deport the applicant.

Background

7 3. The applicant claims to be a national of the Democratic Republic of Congo (DRC) who applied for asylum in this State on 15 ^th February, 2006.

8 4. The applicant based his application on a fear of persecution arising from reasons of race, imputed political opinion and members of a particular social group. He alleged that he is of mixed ethnicity as his father was Congolese and Lulua ethnicity and his mother is a Rwandan of mixed Tutsi ethnicity. In the DRC, some would view the applicant as Tutsi or as having Rwandan connections.

9 5. The applicant claimed that in 2004 that he was arrested by the authorities in the DRC and accused of being a supporter of the Rwandan government/militia and spent two months in jail during which time he was tortured. He then alleged that he escaped when the Rwandan militia attacked the place of detention.

10 6. The applicant claims that he went to Rwanda but was arrested there as he had no I.D. documents. He claims he was detained in that country until January 2006, until his uncle made arrangements with a police officer to have him released. Thereafter, he travelled to Ireland via a number of countries.

11 7. The ORAC made a recommendation on 17 ^th October, 2006, which was communicated to the applicant on 28 ^th December, 2006, that he should not be declared to be a refugee and thereafter, the applicant appealed to the RAT. The RAT rejected the appeal as it did not believe the applicant's narrative.

The Applicant's Submissions

12 8. It was argued by Mr. David Leonard, of counsel, on behalf of the applicant that the applicant had made a distinct and separate claim to entitlement to refugee status based upon his status as a person perceived to be Tutsi or connected with Rwanda which was not considered by the RAT. He argued that the objective information before the RAT highlighted that such persons are exposed to risk of persecution in the DRC (see A.B. and D.M. (Risk Categories Review - Tutsi added) DRC - CG [2005] UK IAT 00118).

13 9. The applicant submitted that if someone established that they are from the DRC and that they would perceived to be a Tutsi or affiliated with Rwanda that they are likely to be entitled to refugee status based upon that point alone. Such an entitlement would not be lost merely because the decision maker was not satisfied as to the truth of their story.

14 10. The applicant then argued that where there was no finding by the RAT, the court should in accordance with the principles set out in Muia v. Refugee Appeals Tribunal [2005] 1 IEHC 363, proceed on the basis that the applicant was accepted by the RAT as being such a person. In the alternative, the applicant submitted that the decision is vitiated by the failure of the Tribunal to make clear whether or not he was rejecting the claim. See Salim v. Refugee Appeals Tribunal (Unreported, High Court, Birmingham J., 15 ^th September, 2010).

15 11. The applicant submitted that the RAT misunderstood its own jurisdiction and consequently failed to adjudicate upon the risk to the applicant if he returned to the DRC as a failed asylum seeker; the court having already ruled that this was within the remit of the RAT. See F.V. v. Refugee Appeals Tribunal [2009] IEHC 268. The applicant further reasoned that the determination of the eligibility for refugee status entails a forward looking test which involves considering what would happen to the applicant if returned to the DRC.

16 12. The applicant submitted that should the court find that a jurisdictional error has occurred, it must return the matter to the RAT without further investigation, as well as the material was implausible or is not a matter for the court to decide. He submitted that the court should depart from the discretionary approach adopted in F.V. and instead followed the logic of the Supreme Court in Talbot v. An Bord Pleanála [2008] IESC 46, [2009] 1 I.R. 375, which, in the opinion of the applicant made it clear that the High Court may not presume for itself how a statutory decision maker would assess an application where the application remitted to the statutory body following a successful judicial review.

17 13. It was argued by the applicant that having made a distinct claim that he feared persecution on the basis of his status as a failed asylum seeker, he was entitled to have that claim assessed by the RAT. Reliance was...