S.S.F. and Another v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 21 August 2014
• Neutral Citation: [2014] IEHC 474
• Date: 21 August 2014
• Court: High Court

[2014] IEHC 474

THE HIGH COURT

[No. 395 J.R./2011]

[No. 1100 J.R./2009]

F (SS) & A (HH) v Refugee Appeals Tribunal (Christopher) & Min for Justice

JUDICIAL REVIEW

BETWEEN

S.S.F. AND H.H.A.

APPLICANTS

AND

PAUL CHRISTOPHER SITTING AS THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

Q.S.S. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND S.S.F.)

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND MICHELLE O'GORMAN SITTING AS THE REFUGEE APPEALS TRIBUNAL

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(1)

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 12 ELR 33 2001/6/1371

K (G) & ORS v MIN FOR JUSTICE & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

REFUGEE ACT 1996 S11B(B)

REFUGEE ACT 1996 S11B(C)

A (PP) v REFUGEE APPEALS TRIBUNAL (EAMES) & MIN FOR JUSTICE 2007 4 IR 94 2007 1 ILRM 288 2006/3/519 2006 IESC 53

D (K) [NIGERIA] v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP CLARK 1.11.2013 2013/12/3517 2013 IEHC 481

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 7

Judicial Review – Asylum – Refugee Appeals Tribunal – Fear of persecution upon return – Iraqi Family – Immigration – Medical conditions - Relocation

The facts of this case involved the seeking of a judicial review of a decision made by the refugee appeals tribunal not to declare the applicants as refugees. The applicants in question were an Iraqi family of three who sought to have determinations made against them by the Refugee Appeals Tribunal quashed and remitted for rehearing. The applicants, parents and child, were separately represented, but both claimed a fear of persecution upon return to Iraq. Previously the Refugee appeal tribunal decided that the applicants had each failed to establish a well-founded fear of persecution. The issue came before McDermott J. in the High Court.

McDermott J. considered the complaints of the applicants and the overall procedure administered by the Tribunal. The applicant parents contended that the family was under siege for five days and the neighbours were calling them traitors for helping the Americans. She believed that the people who were threatening her and sent the letters were Sunnis or former Ba”athists, Additionally they submitted that the health care available in Iraq is insufficient to meet their needs when compared to Ireland as they each suffer from documented medical conditions. Separately the applicant son of the family contended that he was the target of life threatening events and hazards. He suffered discrimination at school where he was bullied inside and outside the school and generally suffered continued harassment. The applicant parents challenged the decision of the tribunal, claiming that the tribunal didn”t take into account important factors e.g., their son worked for the US Military, the serious situation of religious tension and violence where the applicants reside. McDermott J concluded that the tribunal did actually consider the relevant information during the initial hearing. McDermott J did not consider that the applicants had established substantial grounds to challenge the decisions of the Tribunal in their respective cases and therefore, declined to extend the time for the bringing of their applications or to grant leave to apply for judicial review in regards to the parents. As of the parent applicants” medical conditions it was decided that the medical conditions are not of such a nature as to give rise to a convention based ground for a claim for refugee status. After considering the son”s application and how the tribunal dealt with his grievances about discrimination and bullying in school McDermott J. similarly decided that the tribunal had not erred in law and that there was no need for an application of judicial review. McDermott J. refused the applications to quash the decisions of the Refugee Appeals Tribunal.

1 1. These cases involve three members of an Iraqi family who seek to have determinations made against them by the Refugee Appeals Tribunal quashed and remitted for rehearing. The first set of proceedings (Record No. 2011/395JR) concern the parents of the family S.S.F., a former medic in the Iraqi army and H.H.A., his wife. The second (Record No. 2009/1100JR) concern their son, Q.S.S., who was a minor at the time the proceedings were initiated: the parents and child were separately represented. The parents married in 1967 and lived in Baghdad for 35 years. They are Shia Muslims and had a family of six children, consisting of 5 sons and 1 daughter. Their daughter is now a Swedish citizen and resides there with her husband and four children. They do not know the whereabouts of three of their sons, H., A. and K. Two other sons, J. and Q. came to Ireland with them.

2 2. The family arrived in Ireland on 8 ^th September, 2006, having travelled through Turkey and France using a trafficker for a fee of $15,000.00.

3 3. The parents made an application for asylum on 14 ^th November, 2006. A separate application was made on behalf of Q.S.S. on 20 ^th September. All three applicants claim asylum in this jurisdiction on the grounds that if returned to Iraq they will suffer persecution from Sunni Muslims as a result of their Shia Muslim faith. They also claim that their lives wall be in severe danger arising from the fact that their son K. worked as an interpreter with the United States Army. The parents claim that the health care available in Iraq is insufficient to meet their needs when compared to Ireland. They each suffer from documented medical conditions.

4 4. The relevant questionnaires were completed in the course of the applications for asylum and s. 11 interviews were carried out with the parents on 18 ^th October, 2006, and with Q.S.S. on 3 ^rd March, 2007. All three gave an account of threatening letters received by the family from the "Mujahideen Brigade" ordering them to leave the area in which they lived or they would be killed. One of their neighbours also received such a threat and having reported it to the police in Baghdad, was subsequently killed. Two letters were received, the first on 15 ^th August, 2006 and the second on 22 ^nd August. The father, S.S.F., reported the first letter to the police who, he alleged, advised him to go home and protect himself as the police were having difficulty enough protecting themselves. The second letter was also reported to the Baghdad police and a Magistrate, but no action was taken and as a result, fearing for their own and their children's lives, they left Iraq.

5 5. There was no reference in the two threatening letters to K., and his work as an interpreter for the American Army. However, S.S.F. stated in his s. 11 interview that he told the police that his son was working with the Americans following which they received the second threatening letter. He was satisfied that the letters and the threats were linked to his son's work. He stated that locals had informed his son, H., to tell his brother, K., to stop working with the Americans. On one occasion having left the American camp K. was stopped and searched by men looking for a translator's job card. K. was aware of the risk of carrying his card, and not finding one the two men threatened that if they found him in the area again he would be killed.

6 6. H.H.A. in her s. 11 interview described how her family was under siege for five days and the neighbours were calling them traitors for helping the Americans. She believed that the people who were threatening her and sent the letters were Sunnis or former Ba'athists. She described how a threatening letter had been thrown from a car which drove past the house. They were told to leave their home or they would be killed. She added "they threw a grenade into the front garden of our house and the windows were broken". S.S.F. in evidence to the Tribunal stated that the family home had not been targeted in a grenade attack, rather a grenade had exploded some distance down their street in a random attack. In evidence. H.H.A. stated that the grenade was thrown into their rear garden but when it was put to her that this contradicted her account at interview, she stated that they had no back garden at the family home. This was identified in the Tribunal decision as a contradiction which undermined the credibility of their story.

7 7. The parents stated that three of their sons H., A. and K. left the family home in Baghdad approximately two days before their own departure, as an immediate consequence of the threatening letters, but in particular, the threat to K.'s life. Two of the sons were married and living in the family home. The father said that he had no discussion with his three sons, who are adults, as to where they might go. The father presumed that they intended to travel to Syria or Jordan, but did not ask about their plans or arrange a means of staying in contact with them. He now believes that they were killed en route to wherever they were going.

8 8. Q.S.S. who was born on 4 ^th February, 1992, and was fourteen at the time of his application for asylum, is the youngest child of the family. His claim was based on the same facts as those set out by his parents. However, he gave further details about the nature of the persecution which he said he suffered in the course of his secondary education. He claimed that he was the target of life threatening events and hazards. He suffered discrimination at school where he was bullied and verbally abused, tormented physically and mentally by other pupils and gangs within the school who hated him because he was a Shia. He was assaulted inside and outside the school. The school administration...