R.F.H -v- The Minister for Justice and Equality

JudgeMr. Justice Barr
Judgment Date15 January 2021
Neutral Citation[2021] IEHC 26
Docket Number[Record No. 2019/919 JR]
CourtHigh Court
Date15 January 2021

[2021] IEHC 26


[Record No. 2019/919 JR]


JUDGMENT of Mr. Justice Barr delivered electronically on the 15th day of January, 2021

The applicant seeks to set aside the decision of the second respondent made on 18th November, 2019 declaring that the applicant should not be given refugee status; nor that he was entitled to subsidiary protection under the International Protection Act 2015, which was based on the finding made by the second respondent that there was no reasonable risk that if the applicant were to be returned to Iraq he would face a well-founded fear of persecution or serious harm.


In summary, the applicant seeks to set aside the decision of the second respondent on the grounds that it failed to take into account country of origin information (hereinafter referred to as “ COI”) which had been submitted on behalf of the applicant; or alternatively that if they had taken such material into account, they had failed to give any, or any adequate reasons as to why they had rejected that COI in reaching the findings that it had done and in the further alternative, it was submitted that the findings made by the second respondent were not based on the evidence and were accordingly irrational.


On behalf of the respondents it was submitted that the second respondent had taken account of all the relevant documentary and other evidence that was before it and in particular, had had regard to the fact that, while the applicant had been interrogated by the security forces in the Kurdistan region of Iraq in 2014, due to posts that he had made on his Facebook page, he had not had any further difficulties with the authorities in the four years between 2014 and 2018, when he came to Ireland. It was submitted that in these circumstances the findings of the second respondent had been entirely rational; had been based on the evidence before it and the reasons why it had reached its decision were entirely clear from the decision itself. Accordingly, it was submitted that there was no basis on which to either set aside the decision of the second respondent, or remit the matter to them for further reasons.


The basic elements of the applicant's story were not greatly in dispute and indeed, were largely accepted by the second respondent at the hearing of the appeal from the recommendation of the International Protection Officer.


The applicant is 31 years of age, having been born on 1st March, 1989. He is an Iraqi national and resided in the Kurdistan region of Iraq. He arrived in Ireland, via Dublin Airport, on 3rd June, 2018. He stated that he was from the town of Arbat in Kurdistan. Before he left for Ireland, he had worked for a telecoms company and as a receptionist in an organisation for economic development. He had also worked as a taxi driver.


In or about 2012/2013, he had opened his first public Facebook account; on which he had placed a number of postings which were critical of the government in Kurdistan. As a result of these postings, he came to the attention of the authorities. He was taken in by the security services, known as the Asayish, in 2014. He was interrogated for some time about the content of his postings. He was released when he agreed to shut down his Facebook account, which he did while in custody.


The applicant stated that he did not place any postings on Facebook for a number of months after his release. However, he then opened a private Facebook account, to which only approximately 100 “ friends” were given access. However, the applicant continued to have some public aspect to his opposition to the government, in particular, he would “ like” and “ share” postings critical of the government made by others on their own social media accounts.


The applicant stated that he also had a number of public arguments with supporters of the government and some members of his own family who supported the government, when he was out on the street.


The applicant accepted that he had not received any adverse attention from the authorities, or the security services, in the period after his release in 2014, until he left the country for Ireland in 2018.


That is the background against which the second respondent made its decision on 18th November, 2019.

The Decision of the Second Respondent

Broadly speaking, the second respondent refused protection to the applicant because it found that, while there was undoubtedly COI to support the proposition that journalists, media outlets generally and opposition activists, who were critical of the government, suffered adverse consequences at the hands of the authorities, and their agents; there was no evidence that individuals, who posted material on the internet critical of the government, were necessarily targeted by the authorities or their agents. In addition, the Tribunal found that as the applicant had engaged in both public and more private criticism of the government on the internet and in the street after his release in 2014, but had not been the subject of any attention from the authorities in the four years prior to leaving for Ireland in 2018, taking all these matters into account, there was not a reasonable chance that if he were to be returned to Iraq he would face a well-founded fear of persecution.

Submissions on Behalf of the Applicant

It was submitted on behalf of the applicant that it was significant that the Tribunal had accepted as credible a very large portion of the account given by him. In particular, they had accepted that he had been interrogated by the security forces in Kurdistan in 2014; that he had closed his public Facebook account as a result of that interrogation and that he had had public arguments with supporters of the government party in the period after his release and prior to his departure for Ireland.


The tribunal had noted that the European Court of Human Rights case law underlined that “ real risk” was lower than the threshold of “ more likely than not” in relation to a threat of persecution or serious harm.


The Tribunal had also had regard to COI submitted on behalf of the applicant in the form of a U.S. Department of State report dated 2017 on human rights practices in Iraq, which had noted in the section dealing with freedom of expression that individuals were able to criticise the government publicly or privately but not without fear of reprisal. However, notwithstanding these considerations, the Tribunal had found that the applicant, in the circumstances of his case, did not have a reasonable fear of persecution or serious harm if he were repatriated to Iraq.


It was submitted that having regard to the accepted account given by the applicant, and having regard to the relevant COI put forward on his behalf, the second respondent had failed to give any or any adequate reasons as to why it had reached the conclusion that it had in this case. In relation to the duty to give reasons generally, counsel referred to the decision in Connolly v. An Bord Pleanála [2018] IESC 31. It was further submitted that where the decision maker was going to reject evidence or COI put forward on behalf of an applicant, or where he or she was going to prefer one piece of conflicting of COI to another, it was incumbent on the decision maker to provide clear reasons for his or her decision: see D.V.T.S. v. Minister for Justice Equality and Law Reform [2008] 3 I.R. 476 at p. 496.


It was submitted that while the court cannot substitute its own view on the facts for that of the decision maker, it had been held in R.A. v. Refugee Appeals Tribunal [2017] IECA 297 that the requirement that there be an effective remedy meant that the court could subject the reasons given by the deciding authority to a “ thorough review”. In addition, the Tribunal was required to have regard to all of the documentary evidence placed before it.


A second ground of submission put forward on behalf of the applicant was to the effect that in his notice of appeal to the Tribunal, the applicant had specifically put before the second respondent two additional pieces of COI which supported the proposition that ordinary individuals, not just media outlets, journalists or political activists, were subject to adverse attention from the authorities, if they engaged in any criticism of the government in Kurdistan. It was submitted that once relevant material had been placed before the decision maker, it was incumbent on him/her to address that material and, if he/she was going to reject that material, to set out clearly the reasons why they were so doing. It was submitted that in this case, the Tribunal had not addressed the two articles which had been submitted to it, which showed that individuals were targeted in this way, which articles had been exhibited at RFH-O to the applicant's affidavit.


It was submitted that the Tribunal had failed to address these articles, or to give any adequate reasons why they had not accepted the assertions made therein and had come to the conclusion that, as the applicant was not a journalist or a political activist on behalf of an opposition party, he would be unlikely to face persecution if repatriated.


The applicant further submitted that at section 8 of his notice of appeal to the Tribunal, he had raised the fact that while his second Facebook account had been private, he had nevertheless engaged in some public discourse critical of the government when he had posted comments as “ likes” and “ shares” in relation to comments made by other people on their social media platforms. It was submitted that in circumstances where the government monitored social media activity, it was reasonable to assume that the applicant's conduct in this regard had not gone...

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