N (A) v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 10 June 2008
• Neutral Citation: [2008] IEHC 171
• Court: High Court
• Date: 10 June 2008

[2008] IEHC 171

THE HIGH COURT

[865 JR/2006]

N (A) v Refugee Appeals Tribunal & Ors

BETWEEN

A. N.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE ATTORNEY-GENERAL AND IRELAND

RESPONDENTS

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

KRAMARENKO v REFUGEE APPEALS TRIBUNAL 2004 2 ILRM 550

R v IMMIGRATION APPEALS TRIBUNAL EX PARTE AHMED 1999 INLR 473

KIKUMBI v REFUGEE APPLICATIONS COMMISSIONER & MIN JUSTICE UNREP HERBERT 7.2.2007 2007 IEHC 11

IMMIGRATION

Asylum

Judicial review - Leave - Certiorari quashing decision of RAT -- Certiorari quashing decision of Minister - Afghanistan - Political involvement - Claims of torture - Submission of documentation - Medical reports - Request to await arrival of identity documentation prior to decision - Refusal of asylum status - Application for extension of time - Breach of fair procedures - Absence of credibility findings - Tribunal member in best position to assess credibility - Whether obligation to expressly reject or accept credibility of each fact asserted - Treatment of medical reports - Treatment of country of origin information - Consideration of identity documents and membership card - Whether party membership card considered as valid identity document - Reference to absence of identity information - Absence of reference to membership card - Whether substantial grounds for review - Imafu v Minister for Justice [2005] IEHC 416 (Unrep, Peart J, 9/12/2005), NK v Refugee Appeals Tribunal [2004] IEHC 240 [2005] 4 IR 321, R v Immigration Appeals Tribunal, ex parte Sardar Ahmed [1999] INLR 473, Kikumbi v Refugee Applications Commissioner [2007] IEHC 11 (Unrep, Herbert J, 7/2/2007) and P(F) v Minister for Justice [2002] 1 IR 164 considered - Leave granted (2006/865JR - Birmingham J - 10/6/2008) [2008] IEHC 171

N(A) v Refugee Appeals Tribunal

Facts: The applicant from Afghanistan sought an order of certiorari quashing a decision of the respondent refusing him refugee status. The applicant contended inter alia that the respondent had failed to make findings as to the credibility of the applicant, that the medical reports submitted had not been adequately considered and that a request had been made to defer a decision until appropriate identity documents could be obtained.

Held by Birmingham J. that the respondent had discretion to consider credibility as they saw fit. The medical reports had been adequately considered. However, it was arguable that the applicant was entitled to specific consideration of the membership card and leave would be granted on this ground.

Reporter: E.F.

1 This is an application for leave to seek judicial review of a decision of the Refugee Appeals Tribunal ("RAT") given on May 29 2006, in which the first named respondent determined that the applicant is not entitled to a declaration of refugee status and that the recommendation of the Refugee Applications Commissioner ("RAC") to that effect, dated September 15 2006, should be upheld.

Factual Background

2 The applicant claims to be a national of Afghanistan, having been born in Kabul on March 1 1973. He is therefore 35 years of age. He says that his family were all members of Gulbuddin Hekmatyar's faction of the Hezb-i-Islami, the "Islamic Party", in Afghanistan. He says that he joined the Hezb-i-Islami in 1993 and remained a member until he left Afghanistan. His political involvement was linked to that of his brother, who was a commander of 200 people. His brother gave the applicant some limited responsibility as a security person. This did not involve military activity as such, and the applicant did not carry a gun; his duties were primarily as a guide or lookout, and as a courier of leaflets.

3 The applicant claims that at one point, his brother gave him leaflets criticising the Government to hand to another man named Khalid, whose responsibility it was to distribute the leaflets. Khalid was arrested on November 30 2004, and named the applicant as being involved in Hezb-i-Islami. The applicant says that early the following morning, he too was arrested by Government forces, and detained for 38 days at an unknown location. The applicant claims that he was tortured while detained, beaten with sticks and kicked and punched all over his body, including his testicles.

4 The applicant says that he was released in Kabul after his brother arranged for a bribe to be paid to the authorities. He says that he was unable to walk and spent a month at a relative's house, recuperating from his injuries. He claims that during this time, the authorities visited his own house on many occasions looking for him.

5 He states that in February 2005, he travelled with his brother, his cousin and two other people towards Herat, in western Afghanistan. His cousin was driving. The car was stopped at a check-point in Pul-e-Sokhta, a district of Kabul, and the authorities sought to arrest them. His cousin accelerated through the check point, and the police shot at the car. The applicant says that his brother and cousin were killed in the shooting. The applicant claims that he escaped from the car uninjured and travelled 600 kilometres to his aunt's house in Herat, by taxi.

6 He further claims that his aunt's husband went to Kabul for the applicant's brother's funeral and, upon return to Herat with the applicant's mother, informed him that the authorities were blaming him and his (now deceased) brother for the explosion of a taxi in Pul-e-Sokhta some months earlier, which had resulted in the death of a number of people. The applicant's position is that he knew nothing of this explosion. It was then arranged that he would leave Afghanistan, via Pakistan, with the help of a family friend. It appears that he arrived in the State on March 14 2005.

Procedural Background

7 The applicant applied for asylum in the ordinary way, claiming that if returned to Afghanistan, he would be persecuted on the basis of his political opinion. His application was rejected by the Office of the Refugee Applications Commissioner (ORAC). By notice of appeal dated October 14 2005, the applicant exercised his right of appeal to the RAT. The RAT oral hearing took place on November 24 2005.

8 Of particular importance in the context of the present challenge is the correspondence that took place between the Refugee Legal Service ("RLS") and the Tribunal member, and documentation thereby submitted in support of the applicant's appeal. The first series of correspondence saw two medical reports submitted by the RLS to the Tribunal member, the first from the applicant's GP and the second from an examining physician with the SPIRASI Centre for the Care of Survivors of Torture. The GP's report, dated October 21 2005, was submitted by letter dated November 2 ^nd2005. This was, therefore, available at the oral hearing on November 24 2005. The SPIRASI medico-legal report, dated April 30 2006, was forwarded by letter dated May 15 2006, receipt being acknowledged on May 16 2006.

9 A second series of correspondence between the RLS and RAT began by RLS letter dated December 7 2005, asking the Tribunal member to await the arrival of identity documentation from Afghanistan before arriving at a decision in the matter. The RLS supplied the Tribunal member with what was stated to be the applicant's un-translated Hezb-i-Islami membership card and the envelope in which it was received, by letter dated January 26 2006. The RLS sent a translation of the membership card to the Tribunal member on February 7 2006. Receipt of these letters and the attached documentation was acknowledged by letters dated December 8 2005, January 30 and February 9 2006. It is noteworthy that the applicant claims also to have been waiting for the arrival by post of an identity card, but this did not materialise.

10 The Tribunal member rejected the applicant's appeal in a reasoned decision dated May 29 2006, which was notified to the applicant by letter dated June 20 2006. The Minister for Justice, Equality and Law Reform ("the Minister") refused the applicant asylum status and proposed to make a deportation order relating to the applicant. The Minister's decision was notified to the applicant by letter dated July 4 2006.

11 By notice of motion dated October 2 2006, the applicant applied for leave to seek judicial review. The applicant is seeking the following reliefs:

i i. An Order of Certiorari quashing the Tribunal member's decision to affirm the earlier RAC officer's decision;

ii ii. An Order of Certiorari quashing the Minister's decision refusing the applicant asylum status and proposing to make a...