Memishi v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 25 June 2003
• Neutral Citation: [2003] IEHC 65
• Court: High Court
• Date: 25 June 2003

[2003] IEHC 65

THE HIGH COURT

Record Number: No. 596 JR/2002

MEMISHI v. REFUGEE APPEALS TRIBUNAL & ORS

Between;

Skender Memishi

Applicant

And

The Refugee Appeals Tribunal, Rory McCabe, The Minister for Justice, Equality and Law Reform, The Attorney-General, and Ireland

Respondents

1 25th day of June 2003 Mr Justice Michael Peart

2 By Order of this Court made the 13th November 2002, the applicant was granted leave to the following reliefs by way of Judicial Review:

3 (a) An order of Certiorari quashing the decision of the first and second-named respondents to refuse to recommend that the applicant be declared to be a refugee pursuant to the Refugee Act, 1996, Section 16;

4 (b) A Declaration that the second-named respondent, acting on behalf of the first-named respondent, erred in law and/or in fact in his conduct and determination of the applicant's appeal hearing of the 9th July 2002;

5 (c) Such further and other order as to this Court shall seem meet;

6 (d) Costs

7 The applicant had also sought injunctive relief, but the third-named respondent has given an undertaking to the court on the 13th November 2002, not to take further steps in the deportation process pending the decision of the Court.

8 The application is grounded upon an affidavit of Anthony Conleth Pendred sworn the 24th September 2002 and its exhibit, an affidavit of the applicant sworn on the 22nd October 2002 and its five exhibits, and the Statement of Grounds dated 24th September 2002.

9 The Respondents have filed a replying affidavit of John English sworn on behalf of the Refugee Appeals Tribunal on the 1st November 2002 to which there are two exhibits, and a Statement of Opposition dated 14th February 2003.

Background Facts:

The Questionnaire:

10 The applicant was born on the 14th June 1977, and is now aged 25 years of age. He is an Albanian Kosovan. He has no brothers or sisters. He is a single man and is of the Muslim faith. According to his Application for Refugee Status Questionnaire, completed on the 3rd March 1999, he left school at the age of fifteen years, and did not work in Kosovo thereafter. He says that he did not complete his military service, and consequently does not have any passport. He was also, according to the questionnaire, refused an Identity Card. This document says that on the 15th December 1998 he departed from Kosovo to Albania on foot, and later by truck. He paid 3000 DM to a person for assistance with his departure. The questionnaire states that he did not stop in any other country before coming to Ireland, and therefore he has not claimed asylum in any other country. He says that he has never lived in any other country, apart from his country of origin. In the section of the questionnaire which seeks full details of his reason for seeking asylum in this State, he says as follows:

"I am looking for asylum for fear of continuing to live in Kosovo. I don't know the reasons why, but all I know is that in the past year, after many other villages, my village was grenaded also. Everyone that was there left the village, and we never went back as the whole village was totally revaged. We stayed wherever we could, but mainly in the mountains.

I suffered a lot until, with the help of some people whom I didn't even know. I was able to cross into Albania. There I fell into the hands of some people that got me out, and today I find myself in Ireland.

I thank you for understanding and I greet you hoping that here I will manage to get back to a normal life."

The Interview:

11 In the interview which took place on 19th June 2001 (some 27 months after the questionnaire was completed on his arrival here) with an authorized officer of the Refugee Appeals Commissioner, and in the presence of an interpreter, further information is added to that which was included in the application form. It appears that his parents were alive in Macedonia about two months prior to the interview, but that since then he has lost contact with them. He does not have any address for them in Macedonia.

12 He says that he was only in Albania for two or three weeks after escaping into there. When asked at interview why he did not stay in Albania since he claims ethnicity with Albanians, he replied that it was dangerous there also, and that people were killing each other everyday.

13 He says that he remained in Albania until the 9th/10th January 1999, when he was put into a truck by some people whom he did not know. He says that his father paid these people, and that he was in Pristina at that time. When asked why his father paid for him to get out but not himself and his mother, the applicant said that they had wanted the applicant to get out, being their only son, as the Serbs picked up and killed young Kosovan males. Any who were picked up never returned. It was then put to him that he had said that he was in Albania at this time, and not in Kosovo; and in reply he said that from the time he left home in 1998 he spent a lot of time in Pristina because it was safer, and that his father organised for him to get away, but that he had to go to Albania first in order to get away. He said everything was organised from Pristina. He was asked why he had not left from Pristina, and he explained that that was how the journey was organised. He has no idea who his father paid the money to, except that they were Albanians.

14 He was also asked whether he was persecuted in Kosovo, and he replied that he was beaten by Serbian police two or three times about four or five years previously, which would be when he was 17 or 18 years of age. He said that the only reason he was beaten was that he was Albanian. He said there were no witnesses to the beatings. He said that they took place near his house at about 2pm or 3pm, and once in the morning when he was going to school he was kicked and slapped a couple of times.

15 He was asked why he did not return to Pristina after the war ended, but he said that there was nothing to return to, that his house was destroyed and that his family were not there. The reason he gave for not returning to rejoin his parents was that, at the time, the Serbs had driven everyone out of Pristina, around the time, he says, that the U.N. had started bombing Serbia and Kosovo. He was also asked why he would not go back to Macedonia where his parents were, and he said that there was war there also and that he did not know where his parents were.

16 When asked what he intended doing now, he said he wanted to rebuild his life, try and forget the past, and get some education so that he could contribute to Irish life. He did not know how to answer when it was put to him that he was an economic migrant.

17 It was explained to him that in fact thousands of Kosovans had now left Ireland and returned to Kosovo, but he said he believed many of them would like to come back again.

18 The applicant then said that before his village was shelled by the Serbs, he was approached by the Kosovan Liberation Army and was asked to join them and fight. He says that his mother said she would commit suicide if he joined, because she lived only for him. He now says that he has heard that people who refused to join are being killed, and that nobody has answered for these killings.

19 He was then asked to give the dates, times and full details of his journey to Ireland. In answer he said that he left Kosovo around the 15th December 1998. He says they went to Albania (Tirana) where he was taken to a house. This would be just before New year. Most of the journey was at night and lasted about three or four days. He says he stayed at that house until about the 9th or 10th of January 1999, and that there were about five or six of them, including one female. He says they were then picked up by some people in cars and he was then put in a truck. They were given some food and water to last a week. He was apparently put in a box and told to be quiet and not make any noise. He says there were many boxes but it was not closed very tight. He says he was let out of the box after about one and a half days, and was put in a truck carrying tractors and he was on his own. When he arrived here he just got out and heard people speaking a different language.

20 He was asked why after two and a half years he has not found work, and he said that he wanted to get some education first, but he was not allowed to do that. He says that he has been in touch with other Kosovons in Tralee, but that they have to leave there also. He has also met others in Kildare and Dublin.

21 At the conclusion of the interview, the applicant put it to the interviewer that if he thought somebody was going to come after him with an automatic weapon, he too would try and get away as far as possible.

22 Following this interview, the authorized officer prepared a Report pursuant to Section 13(1) of the Refugee Act, 1996(as amended) in which he concluded that the applicant's claims of persecution are of a general nature and that there were no witnesses to same, and that the nature of same would not be termed of a serious nature. It went on to state that the applicant had nothing to produce as evidence for any of his allegations and that his stay in Albania would not put him in the area of fighting when it occurred, as he left Albania in 1998 and was in Ireland on 14th January 1999. If concluded that the addition of the allegation of attempts to conscript him into the KLA was unconvincing, as he had not mentioned these in his original application for asylum which he made shortly after his arrival in this country. The report also refers to the fact that in a number of respects his account of his movements prior to coming here do not tally. It goes on to refer to the fact that the applicant did not stay in Macedonia with his parents, which he could have done. Furthermore, it states that "fear of the Serbs in Kosovo...