N. -v- MJELR & Anor, [2008] IEHC 140 (2008)

Docket Number:2005 626 JR
Party Name:N., MJELR & Anor
Judge:Herbert J.




OLIVE BRENNAN, REFUGEE APPEALS TRIBUNAL RESPONDENTSJUDGMENT delivered by Mr. Justice Herbert delivered the 8th day of May 2008

This is an application for leave to seek an Order for certiorari and a declaration by way of judicial review. The applicant's country of origin is Burundi. He claimed asylum in this State in March 2004, pursuant to the provisions of s. 8 of the Refugee Act, 1996 (as amended). This State accepted responsibility for examining his asylum application under Council Regulation (EC) No. 343/2003, as adopted into the domestic law of the State by SI 423 of 2003.

The applicant claims to have a well-founded fear of being persecuted in Burundi for reasons of race, (mixed ethnic origin: father Hutu, mother Tutsi), and political opinion (his father, his two brothers and himself were all involved in the Hutu political group Frodebu and, his father, two brothers and seven members of his father's family were killed by Tutsi extremists). He also claims to be unwilling to return to Burundi because of this fear. I am satisfied that if established, these alleged grounds would bring the applicant within the definition of "refugee" contained in s. 2 of the Refugee Act 1996, (as amended).

The applicant himself, without legal assistance completed the Application Questionnaire on 22nd March, 2004, and indicated that he was satisfied that all the information given was true and accurate. The applicant was interviewed on the 28th October, 2004, by Pauline O'Dwyer, an Authorised Officer on behalf of the Refugee Applications Commissioner. The Report and Recommendation of the Refugee Applications Commissioner made in October, 2004, pursuant to the provisions of s. 13(1) of the Refugee Act 1996, (as amended), concluded that the applicant had failed to establish a well founded fear of persecution as defined by s. 2 of the Act of 1996 and, that he should not be declared a refugee. On the 1st December, 2004, the applicant, through his Solicitors, Daly Lynch Crowe and Morris, appealed to the Refugee Appeals Tribunal from this decision of the Refugee Applications Commissioner.

This appeal came on for an oral hearing before Olive Brennan, a Member of the Refugee Appeals Tribunal on the 18th January, 2005. The applicant was represented at the hearing by Mr. Michael Crowe, Solicitor and the Presenting Officer was Mr. Max Factor. In her Decision dated 11th May, 2005, which was notified to the applicant by letter dated 20th May, 2005, the Member of the Refugee Appeals Tribunal held that:-"The applicant had not given a truthful account in relation to his case and the Tribunal was therefore satisfied that he had not established a well founded fear of persecution on any s. 2 ground and, was not a refugee.

Given the situation which then existed in Burundi there was no reasonable likelihood that the applicant's fears would be realised were he to be returned to that country." The applicant now seeks leave of this Court to apply by way of judicial review for an order of certiorari quashing this Decision of the Refugee Appeals Tribunal and for a declaration that it was ultra vires, void and of no force or effect. The statement of grounds is dated the 13th June, 2005, and is supported by an affidavit of the applicant dated 13th June, 2005.

This application falls within the provisions of s. 5(1)(j) of the Illegal Immigrants (Trafficking) Act 2000. Subsection 2(b) of that section provides that leave shall not be granted to apply for judicial review unless this Court is satisfied that there are substantial grounds for contending that the decision of the Refugee Appeals Tribunal is invalid or ought to be quashed.

In giving the decision of the Supreme Court in matter of the reference to it by the President of Ireland of s. 5 and s. 10 of the Illegal Immigrants (Trafficking) Bill 1999, [2000] 2 I.R. 360 at 394/5, Keane C.J. held, following the decision of Carroll J., in McNamara v. An Bord Pleanála (No. 1) [1995] 2 I.L.R.M. 125, that, "substantial grounds" meant reasonable arguable and weighty grounds and, not grounds that were trivial or tenuous.

The applicant claims that the process by which the Member of the Refugee Appeals Tribunal assessed his credibility was deficient and, that the process by which she concluded that his fear of persecution would not be realised if he should be returned to Burundi was also deficient so that he was deprived of due process and of fair procedures, (Bujari v. Minister for Justice, Equality and Law Reform and Others (Unreported, High Court, 7th May, 2003, Finlay Geoghegan J.)).

The grounds advanced by the applicant in support of his application may be summarised as follows:-1. The Member of the Refugee Appeals Tribunal wrongfully failed to attach any probative value to Death Certificates of David and Marc Kana, who he claims were his siblings and, which he asserts are evidence supporting his claim that his family suffered persecution because of their political opinions and mixed ethnicity.

  1. The Member of the Refugee Appeals Tribunal relied on part of a United Nations Report which stated that people of Hutu-Tutsi mixed marriages experienced no problems in Burundi for the previous two years and no such problems had been reported by any human rights organisations since May 1999, while disregarding another section of the same text which stated that children of mixed marriages and their parents could have problems with Tutsi or Hutu extremists and that these families risked being harassed and in some cases beaten or killed.

  2. The finding by the Member of the Refugee Appeals Tribunal that the applicant's assertion that members of his family had been killed by members of the Sans Defaite, (Tutsi extremist militia), does not accord with the country of origin information as to the situation in Burundi in the period 2000 to 2004 and is erroneous and indicates a disregard of or a misinterpretation of the evidence.

  3. The finding by the Member of the Refugee Appeals Tribunal that even though the genocidal killings in Burundi were very well documented, no reference was found to the alleged killing of the members of the applicant's immediate and extended family was sufficient to undermine the credibility of his story, was irrational and unreasonable, given the country of origin information regarding the scale of the killings in Burundi and, to the lack of international newsworthiness of the death of David Kana.

  4. The findings by the Member of the Refugee Appeals Tribunal that the Tribunal was unable to unearth any evidence of the custom, which the applicant asserted existed in Burundi, where some children are given the surname of their father while others are each given a different and separate surname chosen by their mother and that the applicant's evidence in this regard was highly suspect, was in breach of the provisions of s. 16(8) of the Refugee Act 1996 (as amended), because the Member of the Refugee Appeals Tribunal did not disclose to the solicitors for the applicant details of the searches that had been made or of the documents (if any) on...

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