N (M) v Refugee Appeals Tribunal (McHugh) and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Cooke
• Judgment Date: 01 July 2009
• Neutral Citation: [2009] IEHC 301
• Docket Number: [No. 1151 J.R./2006]
• Court: High Court
• Date: 01 July 2009

[2009] IEHC 301

THE HIGH COURT

[No. 1151 J.R./2006]

N (M) v Refugee Appeals Tribunal (McHugh) & Ors

BETWEEN/

M.N.

APPLICANT

AND

DAVID McHUGH (ACTING AS THE REFUGEE APPEALS TRIBUNAL), MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

REFUGEE ACT 1996 S16(8)

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S13(10)

A (RL) v MIN FOR JUSTICE UNREP COOKE 30.4.2009 2009 IEHC 216

S (P) (A MINOR) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 18.6.2009 2009 IEHC 298

MONGENDA v MIN FOR JUSTICE UNREP CLARK 29.11.2007 (EX TEMPORE)

IMMIGRATION

Asylum

Appeal - Claim based on persecution - Whether tribunal erred in law in relying on documentation not revealed or disclosed to appellant - Country of origin information - Whether selective use of country of origin information - Whether tribunal required to disclose documents not already given to the appellant at the earlier state before the final decision is adopted - Whether non compliance of a technical nature - Error of fact - Whether error material - Whether error constituted breach of fair procedure or constitutional justice - Assessment of credibility - Mongenda v Minister for Justice, Equality and Law Reform (Unrep, Clarke J, 29/11/2007) considered - Refugee Act 1996 (No. 16), s. 16 - Relief refused (2006/1151JR - Cooke J - 1/7/2009) [2009] IEHC 301

N (M) v Refugee Appeals Tribunal

Mr Justice Cooke

1 By order of 2^nd July, 2008 Birmingham J. granted leave to the applicant to bring the present application for an order of certiorari quashing the decision of the first named respondent dated 19^th July, 2006, (the "Contested Decision") which rejected an appeal against a report of the Refugee Applications Commissioner dated 30^th November, 2005 recommending that the applicant's application for asylum be refused and that he should not be declared to be a refugee.

2 Leave was granted to apply for judicial review of the Contested Decision on the basis of a single ground as follows:

"The respondent. "[that is the Refugee Appeals Tribunal,] "made a basic and fundamental error of fact in applying dated and irrelevant country of origin information in the form of a lecture given by Mohammed Dayri to the applicant's claim while ignoring up-to-date and relevant country of origin information annexed to the Section 13 report as well as the acknowledgment of such persecution at paragraph 5.2 of the report in stating that "the UPDS members were no longer targeted and persecuted after August 2003 in breach of natural and constitutional justice requirements in failing to make a copy of that lecture of Mr. Dayri available to the applicant and his legal representative".

3 The applicant is from the Democratic Republic of the Congo and he claims to have fled that country in 2005 in fear of persecution for his political activities as a member of the Union for Democracy and Social Progress, (the UDPS). He applied for asylum here on 30^th September, 2005.

4 He claims to have been a member of the UDPS since 1991 but it was not until April 2005 that his membership caused him problems. He claims that in April 2005 while discussing with others the organisation of a political march he was arrested and interrogated. He was then released when he denied being a member of the UDPS. Some days later soldiers came for him at his house at night but after warning him to stop the propaganda against the authorities or he would be killed, they left when some neighbours began making noise to drive them away. On 17^th and 18^th May, 2005 complaints at the lack of electricity for over two weeks led to protests and to the burning of offices of government political parties. Soldiers were then sent, he says, to burn down the UDPS offices and one person was killed. He was amongst those arrested but he was released the following day with a warning after he had been photographed and had his identity card confiscated.

5 When further confrontations with soldiers took place on 21^st June he was again arrested and beaten and taken to prison. He escaped with the aid of a guard whom he knew and, after staying with his sister in hiding, he escaped through Zambia and South Africa to Ireland. He says that if returned to the Democratic Republic of Congo he would be tortured and even killed.

6 The report of the Refugee Applications Commissioner rejected the applicant's claim as lacking credibility and paid particular attention to apparent discrepancies between his account of the events in May 2005, (the burning of the party officesetc.), and reports of such disturbances and demonstrations as found in the country of origin information. The report found that while some points of his assertions were consistent with some country of origin reports, the authorised officer had doubts as to whether he had actually been present.

7 The Contested Decision also rejects the applicant's claim on grounds of credibility. Specific aspects of his story were considered to be implausible such as, for example, his being released at first arrest upon denial of UDPS membership although he said the authorities knew who he was; and his description of his escape with the help of an old school friend.

8 There is no doubt, however, that one factor appears to have influenced the conclusion of the Tribunal member both as something which went to the credibility of his description of the events in May 2005, and as a possible factor in the continuing well-foundedness of the risk to UDPS members. This was the information the Tribunal member appears to have gleaned from a lecture given in Dublin on 14^th to 16^th June, 2004 by Mohammed Dayri who was a UNHCR protection officer in Kinshasa. Mr. Dayri is recorded as having said that while UDPS members were being targeted and persecuted until August of 2003 this was no longer the case thereafter following the return of the party leader Etienne Tshisekedi.

9 Understandably, this information appears to have been considered important by the Tribunal member not only because it ran counter to the applicant's account of the attacks on the party members in 2005 but because the information, unlike much country of origin information downloaded from a variety of sources on the internet, was given personally in Dublin by a UNHCR official...