E (P I) v Refugee Appeals Tribunal (McCabe)

• Jurisdiction: Ireland
• Judge: MR. JUSTICE HEDIGAN
• Judgment Date: 30 October 2008
• Neutral Citation: [2008] IEHC 339
• Court: High Court
• Date: 30 October 2008

[2008] IEHC 339

THE HIGH COURT

[1277 JR/2006]

E (P I) v Refugee Appeals Tribunal (McCabe)

BETWEEN

P. I. E.

APPLICANT

AND

RORY MCCABE, ACTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTIES

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PAR 196

REFUGEE ACT 1996 S11A

IMMIGRATION ACT 2003 S7(f)

REFUGEE ACT 1996 S16(16A)

IMMIGRATION ACT 2003 S7(i)(viii)

REFUGEE ACT S11

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL UNREP PEART 9.7.2004 (EX TEMPORE) 2004 IEHC 436

ZHUCHKOVA v MIN FOR JUSTICE & ORS UNREP CLARKE 26.11.2004 2004/51/11705 2004 IEHC 414

S(DVT) v MIN FOR JUSTICE & ORS UNREP EDWARDS 4.7.2007 2007/54/11621 2007 IEHC 305

KRAMERENKO v REFUGEE APPEALS TRIBUNAL & ORS UNREP FINLAY-GEOGHEGAN 2.4.2004 2004/26 /6170 2004 IEHC 101

HORVATH v SECRETARY OF STATE FOR THE HOME DEPARTMENT 1999 INLR 7

B(F) v MINISTER FOR JUSTICE & ORS UNREP PEART 2.5.2008 2008 IEHC 126

Z v MIN FOR JUSTICE EQUALITY & ORS 2002 2 IR 135 2002 2 ILRM 215

K.O.O. v MIN FOR JUSTICE, & ORS UNREP HEDIGAN 15.10.2008 2008 IEHC 311

1 MR. JUSTICE HEDIGAN, delivered on the 30th day of October, 2008

2 1. The applicant is seeking leave to apply for judicial review of the decision of the Refugee Appeals Tribunal (RAT) to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that he should not be declared a refugee.

Factual Background

3 2. The applicant is a national of the Democratic Republic of the Congo (DRC). In October, 2001, he was attending University when his brother, a student leader, took part in a protest march, Thereafter, the applicant's brother fled to England, where he was granted refugee status. Government forces came to the family home to arrest the applicant's brother but when they found that he had fled, they arrested the applicant and members of his family. They were detained in very poor conditions, beaten and interrogated, and soldiers threatened to kill them if they did not disclose the whereabouts of the applicant's brother. They were released in April, 2002, on condition they did not join a political party or leave the country, and that they report periodically to the police. The applicant was thereafter treated in hospital for a week.

4 3. In 2003, following the signing of a peace agreement between rival factions in the DRC and the installation of a transitional government, the applicant joined the Movement for the Liberation of the Congo (MLC), a political party that had joined the government in December, 2002. He was chosen to join the Secret Service (SSMLC) and, after receiving military training, he was given the task of gathering information. A few months later, the SSMLC started to send him on missions to commit crimes, including murder. In January, 2004, two of his SSMLC colleagues who were unsuccessful in their task to kill an opposition politician were killed by the MLC.

5 4. Fearing that their lives could also be in danger, the applicant and a colleague wrote a letter of resignation on 29 ^th March, 2004. That night, while the applicant was at his church, his mother, brother, fiancée and son were arrested and detained. The colleague who had resigned with the applicant was also arrested. The applicant went to stay with his uncle in Bandal and on 3 ^rd April, 2004, he travelled to England, where he stayed for over a year. He has since heard that the MLC has confiscated his house.

Procedural Background

6 5. The applicant made an unsuccessful application for asylum in England; he says that his lawyer in England failed to lodge his appeal on time and his claim was 'withdrawn'. Fearing deportation, he travelled to Ireland and on 29 ^th September, 2005 again applied for asylum, using an assumed name. He did not disclose the fact that he had already applied for asylum in the U.K. but the matter soon came to the attention of the authorities. He attended for two interviews with an authorised ORAC officer.

7 6. In the ORAC section 13 report, dated 24 ^th March, 2006, negative credibility findings were drawn. In addition, the ORAC officer found that the applicant's alleged fears had no Convention nexus. From that decision the applicant appealed to the RAT. An oral hearing was held at which the applicant was represented by counsel and assisted by an interpreter. A report compiled by SPIRASI (a humanitarian organisation that works with asylum seekers and refugees, with special concern for survivors of torture) thereafter became available and was submitted to the RAT.

The RA T Decision

8 7. The decision to reject the applicant's appeal, dated 28 ^th August, 2006, was primarily based on internal inconsistencies that the Tribunal Member identified in the applicant's account of events, relating to the following (among others):-

9 a a. The number of siblings (if any) who are in the U.K.;

10 b b. His state of knowledge as to the implications of SSMLC membership;

11 c c. The scenario leading to his decision to leave the DRC;

12 d d. That he considered the MLC to be an opposition party; and

13 e e. The implications of his resignation from the MLC for his family.

14 8. The Tribunal Member found these inconsistencies to be "both material and significant to his application" and he drew negative credibility findings from them.

Extension of Time

15 9. Although it is not clear when the RAT decision was communicated to the applicant, it is accepted that the applicant commenced the within proceedings outside the 14-day period allowed by section 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000 for the making of a leave application.

16 10. The applicant seeks to explain the delay on the basis that he was, at first, represented by the RLS. The RLS notified him that they would not be pursing an application for leave to seek judicial review of the RAT decision. He then sought private representation and consulted his present solicitor on 13 ^th October, 2006. In my view, the applicant's solicitor acted with all due expedition thereafter and in the circumstances, I am satisfied that good and sufficient reason exists for extending time.

THE APPLICANT'S SUBMISSIONS

17 11. The primary complaints advanced by the applicant in respect of the Tribunal Member's decision are as follows:-

18 a a. Error of law as to the burden of proof;

19 b b. Flawed treatment of credibility; and

20 c c. Error of fact as to country of origin information.

(a) The Burden of Proof

21 12. In the section of his decision entitled "The Law", the Tribunal Member states:-

"In accordance with general legal principles, the burden of proof lies on the person who makes the assertion. An applicant for refugee status must establish the truth of the assertions made and the accuracy of the facts on which the application is based. This burden will be discharged if the applicant renders a truthful account of facts relating to the claim. This burden, because of the peculiarities of a refugee's situation, is shared with the determining authority, which must ascertain and evaluate all of the relevant facts."

22 13. He goes on to state that the standard of proof is less stringent than the civil 'balance of probabilities' test. The applicant complains that there is no reference in the decision to paragraph 196 of the UNHCR Handbook on Procedures...