S.T. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 26 January 2016
• Neutral Citation: [2016] IEHC 250
• Docket Number: [2011 No. 1172 J.R.]
• Court: High Court
• Date: 26 January 2016

[2016] IEHC 250

THE HIGH COURT

Faherty J.

[2011 No. 1172 J.R.]

BETWEEN

S. T.

APPLICANT

AND

CONOR GALLAGHER ACTING AS THE REFUGEE APPEALS TRIBUNAL

THE MINISTER FOR JUSTICE AND LAW REFORM IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Asylum, Immigration & Nationality – S. 11 (B) of the Refugee Act, 1999 – Religious persecution – Adverse credibility findings – Adoption of findings of Office of the Refugee Applications Commissioner (ORAC) – Non-verification of documents – Treatment of country of origin information – Certiorari

Facts: In the present telescoped hearing, the applicant sought leave and an order of certiorari for quashing the decision of the first named respondent affirming the recommendation of the ORAC that the applicant not be declared a refugee. The applicant contended that the first named respondent had failed to give adequate weight to the factum of persecution undergone by him on religious grounds and non-availability of state protection in the country of origin. The applicant argued that the first named respondent had not given appropriate consideration to the documents submitted in aid of his claim. The first named respondent argued that since ORAC had found the documents in question to be unauthentic, the applicant must have put that finding in appeal.

Ms. Justice Faherty granted leave and an order of certiorari and hence quashed the decision of the first named respondent and remitted the matter to it for a de novo hearing before another member of the first named respondent. The Court held that the first named respondent should have done a detailed analysis of the country of origin information in light of the complaint of the applicant regarding failure of the state to protect him from non-state agents. The Court noted that adoption of the findings of the ORAC on the veracity of documentation to reject the credibility of the applicant by the first named respondent without an independent analysis was sufficient to vitiate credibility findings. The Court found that the first named respondent had not clearly set out its basis for rejection of credibility and offered no reason for relying on the findings of the ORAC in relation to the authentication of documentation.

JUDGMENT of Ms. Justice Faherty delivered on the 26th day of January, 2016

1 This is a telescoped hearing in which the applicant seeks leave for judicial review and an order of certiorari quashing the decision of the first named respondent which affirmed the recommendation of the RAC not to declare him a refugee.

Background

2 The applicant's claim is that he is a national of Bangladesh and a Buddhist and that his date of birth is 29th June, 1992. He spent the first seventeen years of his life in a named village in Bangladesh until October 2009. He claims that his problems began on 8th May, 2008 when a dispute arose between his Buddhist community and a Muslim Madrasha (school) located on the south side of the applicant's village. The applicant's father was general secretary of the local Buddhist crematorium development committee and on 8th May, 2008 he tried to build a boundary fence on the south side of the crematorium. However, the principal of the Madrasha (AJ) and his assistant (AS) obstructed the construction process and threatened the applicant's father and members of the committee. A month later on 10th June, 2008 the crematorium committee again tried to build the boundary fence and on this occasion AJ and AS (the latter described by the applicant as a local criminal and terrorist) came to the crematorium with a group of ten to twelve armed persons all of whom the applicant claimed were fundamentalist Muslim. Upon hearing about the confrontation, the applicant and some friends went to the crematorium and found his father and other members of the committee under attack. As a result of trying to resist, he, his father and several others were injured, including one of the attackers. Because of his injuries the applicant claimed he spent some thirteen days in hospital. The incident was reported to the police who said ‘they would look into it’ but the applicant ‘got no result’ and no action was taken.

3 The applicant's father was elected as the general secretary of Bangladesh Buddhist Youth Counsel. The applicant himself became involved in an ‘anti-terrorism programme’ and presented the activities of the group to various anti-terrorism organisations. The applicant was involved in forming rallies and protests. As a result there was an occasion when he and his sister were subjected to verbal abuse and while he reported this harassment to the police no action was taken and the applicant believed that this was because he was ‘a minority’.

4 On 10th October, 2009 during a meeting of the Bangladesh youth club in the applicant's village, the police conducted a search operation and recovered weapons and ammunition. On that occasion two people were arrested by the police and the applicant was also implicated. According to the applicant, the weapons and ammunition were planted by AJ and AS, two of the instigators of the previous attack, to frame the applicant. Some two to three days after the incident in the club house, the police came to the applicant's home to arrest him. As they could not find him, they arrested his father. As a result of the said incidents, the applicant moved to Rang Amati to his aunt where he remained for seven months until he was recognised by people associated with AJ. Realising that it was no longer safe for him to remain in Rang Amati as he believed AJ and AS were looking for him, the applicant moved to Katai where he remained for two months. He became aware that there was a warrant for his arrest. He then moved to Dhaka to stay with his uncle for three months. His uncle told him that it was no longer safe and accordingly he left Bangladesh with an agent on 19th December, 2010, arriving in Ireland a day later. His uncle paid for his journey to Ireland. The applicant claims asylum on the grounds of religious persecution and claims that he cannot return to Bangladesh as AS is looking to kill him and state protection is not available to him as the police and AS are good friends and the applicant is from ‘a minority’.

Procedural history

5 The applicant applied for asylum on 20th December 2010. His ASY1 form was completed on 22nd December, 2010 and the questionnaire was returned to ORAC on 18th January, 2011. The applicant underwent a s.11interview on 17th February, 2011.

6 In the course of his application, the applicant submitted a number of documents in support of his case. They are said to comprise:

• A letter dated 17th January, 2011 from the ‘Hindu, Buddhist & Christian Unity Council’ attesting that the applicant's father was known to the council and was involved in various religious and social organisations in his area. Reference was made to the applicant's father being in jail and to the applicant being compelled to leave the country to save himself from the false firearms case.

• A letter from a Committee in the applicant's village certifying that the applicant was known to the president of the Committee and that his father played a significant role in the committee and that the applicant, his father and three people were implicated by AJ and AS in a false firearms case as a result of which the applicant's father was in jail and the applicant compelled to leave the country.

• A medical discharge document in respect of the applicant dated 22nd June, 2008.

• A medical discharge dated 16th June, 2008 in respect of the applicant's father.

• A letter dated 10th January, 2011 addressed to the applicant at his address in Bangladesh from a named lawyer advising the applicant of the status of the ‘current case’ against the applicant. Reference is made to warrants of arrest issued against the applicant on 11th October, 2009 and 5th August, 2010 and that the applicant's father was arrested in connection to the applicant's case and remained in jail not- withstanding efforts to secure his release on bail. The letter goes on to state ‘Your opponent party is very desperate to punish you and your father in this case. So, in this situation your life is very unsafe in Bangladesh. So, I am requesting you, please do not think to return Bangladesh in any way. Please stay abroad…..’

• A letter from Rangunia College dated 10th June, 2010 certifying that the applicant was enrolled as a business studies student in 2008/2009.

• A letter dated the 6th January, 2011 from the Central Buddhist Temple of Rangunia certifying the applicant's father's status as finance secretary of the ‘temple operations committee’. Reference was made to the applicant's father being in jail and the applicant having to go abroad to avoid arrest by the police and because of fear of the terrorist gang.

• A letter from Bangladesh Buddhist Youth Council in the applicant's village confirming the applicant's membership and that he had ‘initiated a program for the eradication of terrorism’. Reference was made to the applicant's father being in jail and the applicant having to go abroad.

• Various court papers referring, inter alia, to the arrest and charge of the applicant's father for weapons offences and to a complaint made by JA alleging the involvement of the applicant, his father and others in the storing of weapons in the Bangladesh Buddhist Youth Council in the applicant's village and to a warrant having issued for the applicant's arrest.

• The applicant's birth and nationality certificates.

7 In his report dated 11th March, 2011, the Refugee Applications Commissioner recommended that the applicant not be granted a declaration of refugee status and, inter alia, made the following findings:

• The documents submitted by the applicant could not be verified and country of origin information showed that false...