N. T. M. O. [Sudan] v Minister for Justice, Equality and Law Reform and Another

• Jurisdiction: Ireland
• Judge: MS JUSTICE M. H. CLARK,
• Judgment Date: 10 December 2013
• Neutral Citation: [2013] IEHC 563
• Court: High Court
• Date: 10 December 2013

[2013] IEHC 563

THE HIGH COURT

Record No. 1256 J.R./2007

O (NTM) [Sudan] v Min for Justice & Refugee Appeals Tribunal (Brennan)

JUDICIAL REVIEW

Between:

N. T. M. O. [SUDAN]

APPLICANT

-AND-

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND OLIVE BRENNAN, SITTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

REFUGEE ACT 1996 S13

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PARA 195

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)(B)

IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416

IMMIGRATION

Asylum

Refugee - Refugee Appeals Tribunal - Judicial review - Adverse credibility findings - Substantial grounds - County of origin information - Whether tribunal permitted to take account of common knowledge in assessment of credibility - Whether failure to consider relevant documentation and country of origin information - Whether need to carry out artificial assessment of country of origin information where core claim disbelieved - Whether substantial grounds demonstrated to impugn validity of decision - Imafu v Minister for Justice [2005] IEHC 416, (Unrep, Peart J, 9/12/2005) considered - UNHCR Handbook on Procedures and Criteria for Determining Refugee Status 1992 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 5 - Refugee Act 1996 (No 17), s 13 - Leave refused (2007/1256JR - Clark J - 10/12/2013) [2013] IEHC 563

O(NTM)(Sudan) v Minister for Justice, Equality and Law Reform

Facts: The applicant claimed to be a national of Sudan and had unsuccessfully applied for asylum on the basis that his account was found to be seriously lacking in credibility. The Court had found ex tempore that the applicant had not established substantial grounds and that leave would be refused. It was alleged that the Tribunal had engaged in a flawed assessment of credibility as the decision lacked valid reasons for rejecting the claim and that the Tribunal had relied on gut instinct and speculation in findings reached as to cattle transportation. It was further alleged that the Tribunal had failed to apply a forward-looking test.

Held by M.H. Clark J., that substantial grounds had not been established and leave was refused. It was unnecessary to consider whether an extension of time was warranted. The core findings that the account as seriously lacking in credibility was difficult to criticize in the circumstances. This was one of a very small number of cases where a forward-looking test was not possible.

1 The applicant seeks leave to apply for an order of certiorari quashing the decision of the respondent Tribunal dated the 26 ^th July, 2007, affirming the recommendation made by the Refugee Applications Commissioner that the applicant should not be granted refugee status. The leave application was heard on the 8 ^th May, 2009. At the close of the hearing, the Court indicated ex tempore that the applicant had not established substantial grounds and that leave would be refused. The matter was mentioned before the Court again in July, 2013 as it appears that no order was ever made up. For the purpose of clarity, the Court now formally delivers its reasons for the ex tempore decision handed down in May, 2009.

Background

2 When an applicant's core claim is rejected for sound credibility reasons, it is highly unlikely that judicial review will succeed. This was such a case where neither the arguments made nor the documents provided could sustain a challenge to the validity of the decision of the Tribunal.

3 The applicant claimed to be a national of Sudan. He and his wife applied for asylum on the 2 ^nd May, 2006. The wife's claim was not before the Court. He told the Commissioner that he was born in 1975 and belonged to the Zaghawa tribe and lived in the village of Marla in the province of Southern Darfur. The nearest city was Nyala, 47km away. After completing secondary education in 1996, he worked as a livestock and crop dealer. He and his wife married in 2003. Their difficulties began on the morning of the 8 ^th December, 2004, when their village was targeted by the Janjaweed and government forces who attacked from the air and with ground troops. A lot of people were killed including his uncles, and the applicant and his parents and siblings were dispersed. The applicant collected his herd of cattle and fled to the forests south of Maria, where he spent about fifteen months living with his herd and with shepherds moving from one forest to another, ending in Ladoob forest. They lived under the trees and were unable to leave the forest to go to Nyala because the military had surrounded the area. The forest was regularly attacked to steal livestock and to kill people. Meanwhile, his wife was living with her family in Nyala (almost 50 kilometres away) and was unaware of his whereabouts. It was not stated whether she went to Nyala after the attack on Maria, whether she lived there after their marriage or whether she simply happened to be there at her parents's home at the time of the attack nor was it stated whether she knew of her husband's fate after the aerial bombardment of Maria. The claim was that they met by chance when the applicant brought his cattle to a waterhole in the forest and found his wife there. Three days later they decided to leave Sudan as it was unsafe to relocate anywhere in Sudan. The Arabs in the area informed the Janjaweed of the presence of the villagers who had escaped to the forest. They then sold all the livestock and used the money to pay a smuggler to travel first to Libya and then by ship to Ireland. The applicant had no ID of any kind as his birth certificate and identity card were burned and he said that he never had a passport. He submitted a letter from Darfur Solidarity Ireland (DSI) which states that he is a member of that organisation and is well known and is from Darfur and a member of the Zaghawa tribe. That was the extent of his very general claim.

4 The Commissioner appeared to accept that the applicant was Sudanese and Zaghawa but rejected the credibility of his claim to have been exempted from military service or to have survived with his herd in the forests around Maria, because COI showed that the area was under the control of the Sudanese Liberation Army (SLA)...