S. J. v Refugee Applications Commissioner and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Malley
• Judgment Date: 13 January 2014
• Neutral Citation: [2014] IEHC 64
• Court: High Court
• Docket Number: Record No. 2010/168JR
• Date: 13 January 2014

Between/

M.A.B.

Applicant

and

THE REFUGEE APPLICATIONS COMMISSIONER, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL.

Respondents

[2014] IEHC 64

Record No. 2010/168JR

THE HIGH COURT JUDICIAL REVIEW

Judicial Review – Asylum - Refugee Applications Commissioner - Negative credibility findings - Well-founded fear of persecution - Delay in application - Medical evidence - Humanitarian protection - Incorrect test applied - Fundamental error - Forward-looking test - Refugee Act 1996

Facts: The applicant was a native of Sudan who arrived in Ireland in June 2007. It was his contention that he was at risk of serious harm from the Sudanese government forces and/or the Janjaweed militia if returned to his native country because of his membership of the Zaghawa tribe. In this regard, he argued that his home village was attacked by the Janjaweed in March 2004, during which his father, uncle and grandmother were killed. In June 2005, the applicant escaped to Malta and was granted temporary humanitarian protection. In June 2007, he travelled to Ireland but did not apply for asylum until October 2007, a delay which he attributed to sickness.

The asylum application was rejected by the first named respondent. It was said that as a result of negative credibility findings, the applicant had failed to establish a well-founded fear of persecution under any of the grounds under the European Convention on Human Rights. It was said that because the applicant had left Malta despite having humanitarian protection there, it appeared that he did not have a genuine fear of being persecuted in Sudan because it was possible his exit from Malta could have led to him being returned there. It was also noted that the applicant had given a contradictory accounts of his personal history, no medical evidence was given to support his contention that he delayed making an asylum application because of sickness, it appeared the application was only made when his presence in the country had been detected by the Gardaí, and he had not provided a credible reason why he would be a target for persecution by anyone in Sudan if he was to return there.

The applicant brought an application for leave to apply for judicial review. A telescoped hearing to deal with the leave application and the substantive application concurrently was set. The applicant argued that it was appropriate for him to seek judicial review instead of appealing the decision of the first named respondent because certain errors committed by the later were of so fundamental a nature as to deprive him of jurisdiction. In this regard, it was said that the first named respondent had applied the wrong test by requiring the applicant to show that he, as an individual, would be a target for persecution. It was also said that there had been no finding as to whether or not the applicant was a member of the Zaghawa tribe and no assessment of the question of future risk.

Held by O”Malley J. that pursuant to the case of A.D. v MJELR [2009] IEHC 77, leave to apply for judicial review in order to quash a determination of the Refugee Applications Commissioner should only be granted in exceptional cases, such as where there is "some fundamental flaw or illegality in the Commissioner's report such that a hearing upon appeal before the Tribunal will be inadequate to remedy it."

It was further held the issue on whether or not the applicant was a member of the Zaghawa tribe was a core issue in the case and, therefore, required decision. However, a reading of the report of the first named respondent revealed that no such determination had been made. The first named respondent had argued that even if such a determination had not been made, the applicant could simply appeal the decision to the Refugee Appeals Tribunal. It was determined, however, that an appeal would not provide a satisfactory resolution because a hearing before the Tribunal would not be bound by the first named respondent”s findings as there would be a de novo hearing. Leave to apply for judicial review in these circumstances was, therefore, appropriate. It was also held that the first named respondent had failed to apply the correct test by requiring the applicant to show that he, as an individual, would be a target for persecution; the correct test was whether the applicant would be a target for persecution because of his membership of certain group. Finally, it was held that the committal of both of these errors meant a forward-looking assessment of future risk was not properly made.

The decision of the first named respondent was, therefore, quashed. The asylum application was remitted for reconsideration.

Ms. Justice O'Malley

Judgment of Ms. Justice Iseult O'Malley delivered the 13th January, 2014

1 This telescoped hearing concerned the findings and negative recommendation of the first named respondent in respect of the applicant's claim for refugee status. The claim is based on the applicant's membership of the Zaghawa tribe from Sudan. It is accepted that this tribe has been subjected to human rights abuses in Sudan and targeted by government-backed militia forces there.

2 The applicant contends for the right to seek judicial review, in preference to pursuing in first instance his right to appeal to the third named respondent, on the grounds that certain errors committed by the first named respondent were of so fundamental a nature as to deprive him of jurisdiction. In particular, he alleges that that respondent applied the wrong test by requiring the applicant to show that he, as an individual, would be a target for persecution; failed to make a finding on the key question as to whether the applicant was indeed a member of the Zaghawa tribe; erred in law in finding that " where an applicant's claim lacks credibility, the UNHCR [at paragraph 37 of the Handbook} advises us that it can be inferred that a well-founded fear of persecution has not been established by the applicant"; was unreasonable in finding that an attack on the applicant's village in which members of his family were killed was " due to the general unrest within Darfur" and therefore not relevant to the question of future risk of persecution and failed to address the question of "future risk".

3 The respondents plead that the correct test was applied; that a finding was in fact made that the applicant had not established membership of the tribe and that the respondent was entitled to make the findings he did on credibility. It is further contended that all of the applicant's complaints are in fact matters more appropriately dealt with in an appeal.

4 An issue was also raised in written submissions (although not pleaded as such in the Statement of Opposition) as to the required extension of time within which to seek leave in circumstances where the decision of the first named respondent was communicated to the applicant by letter dated the 14th January, 2010 but the Notice of Motion was not filed until the 17th February, 2010. The applicant and his solicitor have averred that the former contacted the latter on the 18th January, that it was not possible by reason of the workload of the solicitor's office to have a consultation until the 28th January and that an appeal to the third named respondent was lodged on the 4th February. On the Friday 12th February Counsel's opinion was obtained to the effect that there were grounds for review. The applicant's instructions were given on Monday the 15th and, pleadings having been drafted, the proceedings were filed on the 17th.

5 On behalf of the respondents Ms. Sinead McGrath BL submits that this situation may not come within the grounds set out in the Act but, rightly in my view, does not press the point. There does not appear to have been any delay attributable to the applicant personally and his solicitor is a practitioner of experience in these matters, who cannot be said to have delayed unduly in taking the appropriate steps.

Background facts

6 It is accepted that the applicant is from Sudan and his date of birth is given as the 6th June, 1980 in Darfur. He says that he is a member of the Zaghawa tribe. He claims to have left Sudan because he feared persecution at the hands of the Sudanese government forces and/or the Janjaweed militia. He avers that in March 2004 his home village was attacked by the Janjaweed and his father, uncle and grandmother were killed. He relocated within Sudan for some time but left via Libya in May 2005 because of constant attacks on Zaghawa people.

7 It appears that the applicant sought asylum in Malta in June of2005 and was granted temporary humanitarian protection. The court has been told by counsel for the respondents that this is a discretionary status arising purely under domestic Maltese law. Documentation indicates that the latest extension of that status was to expire in May 2008. However, in 2007 the applicant travelled to the Netherlands and applied for asylum there. His application was refused and he was returned to Malta.

8 It further appears that the applicant came to Ireland from Malta in June, 2007, using a travel document issued to him by the Maltese authorities. An application for refugee status was not however made in this State until the 9th October, 2007. The applicant's explanation for the delay was that he was sick and needed medical treatment. He claimed to have been in Beaumont Hospital for the period in question but no medical evidence was submitted by him to either the respondents or to the court. It is noted that, accordinto the respondents, the applicant was questioned by a Garda on the 8th October, 2007 and told to report to the Garda National Immigration Bureau on the 12th of that month. The applicant denies this and said that he went to the Office of the Refugee...