N (A.Z) v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M. H. CLARK
• Judgment Date: 07 October 2009
• Neutral Citation: [2009] IEHC 432
• Court: High Court
• Date: 07 October 2009

[2009] IEHC 432

THE HIGH COURT

[No. 1231 J.R./2006]

N (A Z) v Refugee Appeals Tribunal (Garvey) & Min for Justice

JUDICIAL REVIEW

BETWEEN

A. Z. N.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (BEN GARVEY) AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S13

CARCIU v MIN FOR JUSTICE UNREP FINLAY GEOGHEGAN 4.7.2003 2003/8/1638 2003 IEHC 31

MCEVOY & SMITH v MEATH CO COUNCIL UNREP QUIRKE 24.1.2003 2003/8/9678 2003 IEHC 31

TRAORE v REFUGEE APPEALS TRIBUNAL 2004 2 IR 607

OLATUNJI v REFUGEE APPEALS TRIBUNAL UNREP FINLAY-GEOGHEGAN 7.4.2006 2006/46/9904 2006 IEHC 113

R (J B) v REFUGEE APPEALS TRIBUNAL UNREP PEART 31.7.2007 2007/52/11193 2007 IEHC 288

H (D) v REFUGEE APPLICATIONS COMMISSONER HERBERT 27.5.2004 2004/20/4592 2004 IEHC 95

S(FO) v REFUGEE APPLICATIONS COMMISSIONER 11.7.2008 2008/57/11874 2008 IEHC 238

KIKUMBI v REFUGEE APPLICATIONS COMMISSION UNREP HERBERT 7.2.2007 2007 IEHC 11

NDINDA v REFUGEE APPEALS TRIBUNAL UNREP HERBERT 16.11.2006 2006/46/9603 2006 IEHC 368

POK SUN SHUM v IRL 1986 ILRM 593

O (O)(A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP HEDIGAN 9.10.2008 2008/47/10244 2008 IEHC 307

IMMIGRATION

Asylum

Judicial review - Leave - Conduct and content of appeal hearing - Decision - Fair procedures - Natural and constitutional justice - Credibility - Applicant denying that certain questions referred to in decision put to him - Translation - Alleged translation error - Attendance note - Discrepancy in evidence - Failure to reflect evidence and information of the applicant - Whether any clear and significant error of fact - Determination of credibility - Whether any error of law or lack of procedural fairness - Decision as whole - Minor discrepancies - Carciu v Minister for Justice, (Unrep, Finlay Geoghegan J, 4/7/2003), Traore v Refugee Appeals Tribunal [2004] IEHC 606, [2004] 2 IR 607, Olatunji v Refugee Appeals Tribunal [2006] IEHC 113, (Unrep, Finlay Geoghegan J, 7/4/2006), JBR v Refugee Appeals Tribunal [2007] IEHC 288, (Unrep, Peart J, 31/7/2007), DH v Refugee Applications Commissioner [2004] IEHC 95, (Unrep, Herbert J, 27/5/2004), FOS v Refugee Applications Commissioner [2008] IEHC 238, (Unrep, McMahon J, 11/7/2008), Ndinda v Refugee Appeals Tribunal [2006] IEHC 368, (Unrep, Herbert J, 16/11/2006) and OO v Minister for Justice [2008] IEHC 307, (Unrep, Hedigan J, 9/10/2008) considered; FP v Minister for Justice [2001] 1 IR 164 and Pok Sun Shum_v Ireland [1986] ILRM 593 applied; Kikumbi v Refugee Applications Commission [2007] IEHC 11, (Unrep, Herbert J, 7/2/2007) approved - Refugee Act (Appeals) Regulations 2003 (SI 424/2003) - Refugee Act 1996 (No 17) ss 13 - Relief refused (2006/1231JR - Clark J - 7/10/2009) [2009] IEHC 432

N (A Z) v Refugee Appeals Tribunal

Facts the applicant obtained leave to seek judicial review of the decision of the respondent refusing his appeal against the recommendation of the Refugee Applications Commissioner that he not be recognised as a refugee on the ground that the decision of the respondent did not accurately reflect the conduct and content of the appeal hearing and the evidence and information provided by the applicant in the course of his appeal and contained factual inaccuracies of a material nature and that the respondent had acted in breach of the applicant's right to fair procedures and natural and constitutional justice and had acted ultra vires the Refugee Act (Appeals) Regulations 2003 S.I. 424. The applicant's challenge to the decision centred on asserted discrepancies between what the applicant averred to in his affidavit of what occurred at his appeal hearing and the findings made in the respondent's decision.

Held by Ms. Justice Clark in refusing the relief sought that, as the applicant had been made aware by the respondent that his wife's evidence differed from his on a material issue, and as the applicant sought on two occasions to use translation issues, which had not been identified in the appeal submissions to the respondent, to explain away significant inconsistencies, the ground that the decision did not accurately reflect the conduct and content of the appeal hearing had not been established.

That the applicant should establish that the appeal hearing had been conducted in breach of fair procedures because his evidence had not been reflected in the findings. The respondent had been best placed to assess the manner in which the applicant gave his evidence and was perfectly entitled to find it unusual that a person of the applicant's asserted education and background as an activist was unable to answer fairly straightforward questions about the size of a demonstration. A judicial review court was unable to determine any dispute involving a finding of hesitancy and had to leave such an assessment to the person who heard and saw the testimony being presented. The two main principles on the assessment of credibility were that where the Tribunal made a specific adverse finding as to the applicant's credibility, it had to be based upon reasons which bore a legitimate nexus to the adverse finding and that it was for the decider of fact to determine the weight (if any) to be given to any evidence. Accordingly, the respondent had not acted in breach of fair procedures and natural and constitutional justice in reaching the decision impugned.

Reporter: P.C.

1 This is an application for judicial review of the decision of the Refugee Appeals Tribunal (RAT), dated the 25 ^th August, 2006, to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicant should not be granted a declaration of refugee status.

2 Leave was granted by Birmingham J. on the 31 ^st July, 2008 on the following ground:-

"The decision of the First Named Respondent does not accurately reflect the conduct and content of the appeal hearing and the evidence and information provided by the Applicant in the course of his appeal and contains factual inaccuracies of a material nature. The Tribunal Member has acted in breach of the Applicant's right to fair procedures and natural and constitutional justice and has acted ultra vires the Refugee Act (Appeals) Regulations 2003 S.I. 424".

3 The substantive application was heard at the Kings Inns, Court No. 1, on the 3 ^rd and 4 ^th March, 2009. Mr. John R. Finlay S.C. and Ms. Sarah Walsh B.L. appeared for the applicant and Mr. Anthony Moore B.L. appeared for the respondents.

Factual Background

4 The applicant claimed to be a national of Sudan and a member of the minority Beni Amer who are a sub-division of the Beja tribe which occupies the area of Eastern Sudan in the Red Sea region. The applicant claimed that before coming to Ireland, he lived in a Beja village of about 30 houses called El Hassnab in Tokar province in eastern Sudan. He received all his education at El Hassnab apart from four years at the Red Sea University at Port Sudan where he studied Arabic and was also employed as port worker. His account of the events preceding his departure from Sudan is as follows: since the year 2000 when he was a student in Port Sudan he was a member of the Al Beja Congress which is an opposition political party. The Congress seeks vindication of the rights of the Beni Amer people and is made up of a militant wing called the Free Lionsand a non violent wing called National Movement of Eastern Sudan.The Free Lions are engaged in armed conflict with the Sudanese government while the National Movement aims to improve the employment opportunities of the Beja people by peaceful means. The applicant claims that he supported the National Movement because the Beja are not recognised as Sudanese, being considered Eritrean, and as such they are marginalised on the jobs market. They are offered unskilled jobs while all the other situations are filled by Sudanese. As an example, he described the situation at the port authority in Port Sudan where well qualified Beja are offered jobs as porters or loaders.

5 The applicant says that his problems initially arose from his presence in early 2005 at two demonstrations organised by the Al Beja Congress in Port Sudan. On the 26 ^th January, 2005, the Congress wrote a letter to the Governor of the Red Sea province of Sudan protesting the treatment of the Beni Amer people and seeking the resignation of the President of the Marine Harbour. The applicant and some students and other people were present the following day (the 27 ^th) at a peaceful demonstration when this letter was handed over. The letter gave the Governor 72 hours to respond. When no action was taken in response to the letter a second demonstration occurred on the 29 ^th January, 2005. The applicant said that he and his future wife were walking together with the other demonstrators from the market place heading towards the Port and Marine Administration Building when security forces and police attacked the demonstration resulting in the deaths of approximately 35 people.

6 Both the applicant and his betrothed were arrested. He himself was arrested by the police while his wife was arrested by the security forces. The applicant claims that he was detained for roughly three months in Port Sudan prison, during which time he was tortured, beaten and threatened with execution. He was released on 10 ^th April, 2005 after signing an undertaking that he would cease his activities with the Congress.

7 He says that on his release he returned home to El Hassnab where, despite having signed the undertaking, he and his wife (who he married on the 5 ^th May, 2005) continued their activities with the Congress because he " would not let the government get away with stealing their resources and mistreating their people."After he had returned home he went to visit his brother who was a member of the Free Lionsin Tasanay on the border of...