S (M) v Refugee Appeals Tribunal & Min for Justice
| Jurisdiction | Ireland |
| Judge | Ms. Justice Irvine |
| Judgment Date | 15 July 2009 |
| Neutral Citation | [2009] IEHC 327 |
| Court | High Court |
| Date | 15 July 2009 |
[2009] IEHC 327
THE HIGH COURT
BETWEEN
AND
REFUGEE ACT 1996 S13
K (G) & ORS v MIN FOR JUSTICE & APPEALS AUTHORITY & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557
S (AW) v REFUGEE APPEALS TRIBUNAL (ZAIDAN) UNREP DUNNE 12.6.2007 2007/54/11567 2007 IEHC 276
IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416
MEMISHI v REFUGEE APPEALS TRIBUNAL & ORS UNREP PEART 25.6.2003 2003/35/8424
CANADA (AG) v WARD 1993 103 DLR (4TH) 1 1993 2 SCR 689
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5
MCNAMARA (KILL RESIDENTS GROUP) v BORD PLEANALA 1995 2 ILRM 125
UNCHR GUIDELINES ON INTERNATIONAL PROTECTION 2006 PARA 38
ISLAM v SECRETARY OF STATE FOR THE HOME DEPT 1999 2 AC 629 1999 2 WLR 1015 1999 2 AER 545
ROSTAS v REFUGEE APPEALS TRIBUNAL (HAYES) & MIN FOR JUSTICE UNREP GILLIGAN 31.7.2003 2003/46/11163
MSENGI v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP MACMENAMIN 25.6.2006 2006/41/8759 2006 IEHC 241
UNCHR GUIDELINES ON INTERNATIONAL PROTECTION 2006 PARA 29
IMMIGRATION
Asylum
Credibility - Country of origin information - Irrelevant considerations - Age of applicant - Whether failure to adequately consider evidence submitted by guardian ad litem - Whether error in relying on country of origin information - Fear of persecution based on involvement of father with communist group - Fear of human trafficking - Negative credibility findings - Whether substantial ground for review - Claim of entitlement to refugee status as member of particular social group namely young men vulnerable to trafficking - Necessity for social group to exist independently of fear of persecution - Absence of consideration of whether social group existed as matter of law - G(K) v Minister for Justice, Equality and Law Reform [2002]2 IR 418; Banzuzi v Minister for Justice, Equality and Law Reform [2007] IEHC 2 (Unrep, Feeney J, 18/1/2007); S (A W) v Refugee Appeals Tribunal [2007] IEHC 276 (Unrep, Dunne J, 12/6/2007); Imafu v Refugee Appeals Tribunal [2005] IEHC 416 (Unrep, Peart J, 9/12/2005); Memishi v Refugee Appeals Tribunal (Unrep, Peart J, 5/6/2003); AG of Canada v Ward [1993] 2 SCR 689; McNamara v An Bord Pleanala (No 1) [1995] 2 ILRM 125; R v Immigration Appeals Tribunal ex parte Shah v Secretary of State [1999] 2 AC 629; 9/11/2005); Rostas v Refugee Appeals Tribunal (Unrep, Gilligan J, 31/7/2003) and Msengi v Minister for Justice [2006] IEHC 241 (Unrep, MacMenamin J, 26/5/2006) considered - Refugee Act 1996 (No 17), s 13 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Leave to seek judicial review granted (2008/2JR - Irvine J - 15/7/2009) [2009] IEHC 327
S (M) v Refugee Appeals Tribunal
Ms. Justice Irvine delivered on the 15th day of July, 2009
1. The applicant is an Afghan national, who was born on 15 th August, 1989. He applied for asylum to the Refugee Applications Commissioner on 5 th January, 2005. That application was rejected and an appeal was subsequently lodged to the first named respondent. That appeal was unsuccessful and it is that decision on the part of the first named respondent which is the subject matter of the present application.
2. By notice of motion dated 2 nd January, 2008, the applicant seeks leave to apply for an order of certiorari quashing the decision of the first named respondent made on 8 th November, 2007.
3. The grounds upon which the applicant claims relief are manifold but may be summarised as follows:-
That in reaching the impugned decision, the first named respondent:-
(i) failed to act in accordance with the requirements of natural and constitutional justice;
(ii) had regard to irrelevant considerations and/or failed to have regard to relevant considerations;
(iii) failed to adequately or properly consider the fact that the applicant was a minor and the implications of that fact in assessing his claim;
(iv) failed to adequately consider evidence submitted by the guardian ad litem;
(v) relied, in error, upon country of origin information relating to members of the Hizb-I-Islami in assessing the applicant's fear of persecution on return to Afghanistan;
(vi) had regard to irrelevant considerations in assessing the future risk to the applicant of being trafficked on his return to Afghanistan;
(vii) engaged in supposition and conjecture and acted irrationally and unreasonably.
4. The applicant applied for asylum to the Refugee Applications Commissioner on 5 th January, 2005. In the course of completing the standard questionnaire the applicant set out the reasons why he left his country of origin. Briefly stated, the applicant alleged that enemies of his father were trying to kill his family. He stated his father was a communist and a member of the Hizb-I-Islam, a communist group then trying to overthrow the government. His family had to move to a different village. There the situation got worse. His father, who had in fact been working for the government, went with them. His father subsequently fled from the new family home due to fears of being found to be a member of the Hizb-I-Islam. American soldiers came to the applicant's new house looking for his father. They took him away and questioned him about his father. He did not answer any questions and the soldiers brought him home. On another occasion a group of political activists led by a local anti-communist commander attended at the applicant's home, searched it for his father and threatened his mother that if her husband did not surrender that she and her children would, as communists, be killed. Subsequently, the family were briefly reunited. A decision was then made that they could no longer live in Afghanistan. The applicant was separated from the rest of his family when exiting Afghanistan. He was put in a car with other strangers and he has not seen his family since.
5. The applicant was interviewed by the Refugee Applications Commissioner on 20 th July, 2005. The interview notes record that he gave much the same reasons for leaving Afghanistan as had been given in the questionnaire earlier completed by him. He stated that he was afraid to return because of his father's involvement with the Hizb-I-Islami. He stated that the local commander who had been involved in threatening his mother also knew him. The applicant further stated that he was afraid he would be sold to Arabs or sent to jail if he returned to Afghanistan. His mother had told him that there was a drug problem and also a human trafficking problem and he was afraid of these matters, in the absence of his parents.
6. The Refugee Applications Commissioner recommended that the applicant should not be declared a refugee. The s. 13 report was forwarded to the applicant on 10 th October, 2005. In that report the Commissioner stated that country of origin documentation relating to ex Hizb-I-Islami members suggested that they were not at significant risk and that the government included amongst its number many of its former members. The Commissioner accordingly concluded that it was not credible that the applicant would be targeted given that he himself had no actual involvement with that opposition group and was not even a member of the party. In this regard it was noted that the applicant in his questionnaire had stated that he was a student and was not a party member.
7. The Commissioner, whilst agreeing that a problem in respect of human trafficking existed in Afghanistan, relied upon the fact that a programme had been set up to in Afghanistan to establish a national action plan to eradicate human trafficking. The Commissioner concluded that this being so and having regard to the fact that the applicant had not been a victim of trafficking when he lived in Afghanistan that he was not in any more danger of being trafficked than any other child if he were to be returned to Afghanistan.
8. An appeal was subsequently lodged against the decision of the Refugee Applications Commissioner. By the time the appeal was lodged, the applicant had been made a Ward of Court. This happened as a result of his attendance at a protest at St. Patrick's Cathedral in Dublin where a significant number of Afghan Nationals demonstrated against being returned to Afghanistan. Having been admitted to wardship, Ms. Freda McKitterick was appointed as the applicant's guardian ad litem.
9. For the purposes of his appeal against the decision of the RAT the applicant submitted, in addition to the documentation which had been considered by the Refugee Applications Commissioner and the s. 13 Report:- (a) a detailed letter from Ms. Freda McKitterick and (b) supplemental written legal submissions.
10. Ms. Freda McKitterick is a qualified social worker with many years experience in that role. She has worked with Barnardos since the year 2000. In her letter sent to the first named respondent on the applicant's behalf, she referred ( inter alia) to the fact that in her opinion the applicant was intelligent, articulate and vulnerable. She asserted that the applicant was distressed by reason of his separation from his family and that he was lonely. She stated that she found the applicant tended to become disproportionately upset regarding his situation and that this was likely to manifest itself at interview. She believed that he was a credible historian and had accepted his account that his family had been targeted because of his father's activities. In addition, she stated that it had been noted in the course of his initial interview that he was nervous and spoke so fast that all of his answers...
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