A.S. v Refugee Appeals Tribunal and Others

JurisdictionIreland
CourtHigh Court
JudgeMR. JUSTICE HEDIGAN,
Judgment Date20 January 2009
Neutral Citation[2009] IEHC 17
Date20 January 2009

[2009] IEHC 17

THE HIGH COURT

[50 J.R./2006]
S (A) v Refugee Appeals Tribunal (O'Gorman)

BETWEEN

A. S.
APPLICANT

AND

MICHELLE O'GORMAN, ACTING AS THE REFUGEE APPEALS TRIBUNAL
RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL
NOTICE PARTIES

REFUGEE ACT 1996 S11B

REFUGEE ACT 1996 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

BISONG v MIN FOR JUSTICE & ORS UNREP O'LEARY 25.4.2005 2005/4/814 2005 IEHC 157

A (T M A) v REFUGEE APPEALS TRIBUNAL & ORS 2005 2 IR 607

L (D) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP HEDIGAN 11.11.2008 2008 IEHC 351

S (DVT) v MIN FOR JUSTICE & ORS UNREP EDWARDS 4.7.2007 2007 2007/54/116 2007 IEHC 305

TRAORE v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP FINLAY-GEOGHEGAN 14.5.2004 2004/49/11175 2004 IEHC 606

CAMARA v MIN FOR JUSTICE & ORS UNREP KELLY 26.7.2000 2000/4/1247

IMAFU v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (O'BRIEN) UNREP CLARKE 27.5.2005 2005/31/6380 2005 IEHC 182

BANZUZI v REFUGEE APPEALS TRIBUNAL & ORS UNREP FEENEY 18.1.2007 2006/6/977 2007 IEHC 2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

O (H) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP HEDIGAN 19.7.2007 2007/45/9473 2007 IEHC 299

O (OL) (A MINOR) v MIN FOR JUSTICE UNREP HEDIGAN 9.10.2008 2008 IEHC 307

W (EA) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP HEDIGAN 4.11.2008 2008 IEHC 343

E (PI) v REFUGEE APPEALS TRIBUNAL (McCABE) UNREP HEDIGAN 30.10.2008 2008 IEHC 339

IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S1(1)

IMMIGRATION ACT 1999 S3(6)

REFUGEE ACT 1996 S5

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380

KOZHUKAROV & ORS v MIN FOR & ORS UNREP CLARKE 14.12.2005 2005/35/7380 2005 IEHC 424

H (N) v MIN FOR JUSTICE & ORS UNREP FEENEY 27.7.2007 2007/27/5589 2007 IEHC 277

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000

IMMIGRATION

Asylum

Fair procedures - Hearing in absence of applicant - Claim of persecution - Adverse credibility finding - Doubts about plausibility of account - Whether errors of fact that render decision ultra vires or in breach of fair procedures - Whether error so insignificant that immaterial to assessment of credibility - Whether treatment of credibility flawed - Applicable principles - Whether sufficient basis for credibility findings - Whether rational and appropriate basis for finding set out - Whether failure to have regard to evidence of attacks - Whether failure to assess credibility by reference to objective country of origin information - Whether failure to consider explanations for perceived discrepancies - Whether failure to consider risk to right to respect for private life under Convention - Test of anxious scrutiny - Obligation on organ of State to perform functions in manner compatible with obligations under Convention - Whether article 8 rights arise for consideration at tribunal stage - Bisong v Minister for Justice [2005] IEHC 157 (Unrep, O'Leary J, 25/4/2005), AMT v Refugee Appeals Tribunal [2005] IEHC 221, [2005] 2 IR 607, L(D) v Refugee Appeals Tribunal [2008] IEHC 351 (Unrep, Hedigan J, 11/11/2008), Simo v Minister for Justice [2007] IEHC 305 (Unrep, Edwards J, 4/7/2007), Traore v Refugee Appeals Tribunal [2004] IEHC 606 (Unrep, Finlay Geoghegan J, 14/5/2004), Camara v Minister for Justice (Unrep, Kelly J, 26/7/2000), Banzuzi v Refugee Appeals Tribunal [2007] IEHC 2 (Unrep, Feeney J, 18/1/2007), X & Y v Netherlands (1986) 8 EHRR 235, O(H) v Refugee Appeals Tribunal [2007] IEHC 299 (Unrep, Hedigan J, 19/7/2007), O(O)(L) v Minister for Justice [2008] IEHC 307 (Unrep, Hedigan, 9/10/2008), W(E)(A) v Refugee Appeals Tribunal [2008] IEHC 343 (Unrep, Hedigan J, 4/11/2008), E(P)(I) v Refugee Appeals Tribunal [2008] IEHC 339 (Unrep, Hedigan J, 30/10/2008), Imafu v Refugee Appeals Tribunal [2005] IEHC 416 (Unrep, Peart J, 9/12/2005), Kouaype v Minister for Justice [2005] IEHC 380 (Unrep, Clarke J, 9/11/2005), Kozhukarov v Minister for Justice [2005] IEHC 424 (Unrep, Clarke J, 14/12/2004) and H(N) v Minister for Justice [2007] IEHC 277 (Unrep, Feeney J, 27/7/2007) considered; Imafu v Refugee Appeals Tribunal [2005] IEHC 182 (Unrep, Clarke J, 27/5/2005) applied - European Convention on Human Rights 1950, article 8 - Refugee Act 1996 (No 17), s 5 - Immigration Act 1999 (No 22), s 3 - European Convention on Human Rights Act 2003 (No 20), ss 1 and 3 - Relief refused (2006/50JR - Hedigan J - 20/1/2009) [2009] IEHC 17

S(A) v Refugee Appeals Tribunal

1

JUDGMENT OF MR. JUSTICE HEDIGAN, delivered on the 20th day of January, 2009.

2

1. The applicant is seeking judicial review of the decision of the Refugee Appeals Tribunal ("RAT"), dated 5 th September, 2005, to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner ("ORAC") that the applicant should not be granted a declaration of refugee status. Leave to apply for judicial review was granted by Hanna J. on 9 th March, 2007. At the beginning of the post-leave hearing, Senior Counsel on behalf of the applicant indicated to the Court that he had taken the view that the case should be withdrawn, but was unable to contact the applicant so as to take instructions. Counsel on behalf of the respondent urged that the case go on as there had already been a period of substantial delay. This was the second occasion on which the case came forward; it had first come forward some twelve months earlier. I agreed that the case should go on and, having indicated that I had already read the parties' written submissions, asked Senior Counsel on behalf of the applicant if he had anything to add to those submissions. He indicated that he did not; this was not surprising, for very understandable reasons. Counsel for the respondents made oral submissions, largely relating to credibility findings made by the Tribunal Member.

Background
3

2. The applicant claims to be a national of Somalia, a Muslim, and a member of the minority Asharaf clan. He claims to have been persecuted by the larger Darood and Hawiye clans. His account of the events that preceded his departure from Somalia is as follows. He was born in 1981 and is the eldest of his siblings. In 1992, a year after the fall of the government, his biological father disappeared. In 1994, the applicant was attacked by four members of the Darood clan, one of whom hit him with a bayonet; he sustained serious injuries and was hospitalised. Thereafter, his mother then married a man from the Marehan clan, a sub-clan of the Darood clan. Because he was head of the militia in their village, the family was thereafter protected for a time. In 1997, however, his brother was abused by militia outside of the family home and in 2003, his sister was kidnapped. In July, 2004, six members of the Darood and Hawiye clans broke into their family home, shot dead his brother and step-father, struck his mother, and kidnapped the applicant and his sister. The applicant was detained in a transport container for six days before he escaped while his captors were arguing. He returned home for one day and was given money by his mother, who told him to go to Nairobi with a neighbouring Asharaf family. He did so, and remained in hiding in Nairobi for six weeks while an agent arranged his journey on to Ireland. He says that his mother, wife and children remain in Somalia. His sister has not been heard of since being kidnapped in July, 2004.

4

3. Shortly after his arrival in the State on 30 th August, 2004, the applicant applied for asylum. He attended for interview with ORAC on 13 th April, 2005. ORAC issued a negative recommendation, dated 23 rd May, 2005, making a number of adverse credibility findings. The applicant appealed to the RAT by way of a Notice of Appeal dated 27 th June, 2005. An RAT oral hearing took place on 20 th July, 2005 and the Tribunal Member affirmed the negative ORAC recommendation by decision dated 5 th September, 2005.

The RAT Decision
5

4. In the first section of her decision, the Tribunal Member sets out in some detail the evidence before her. That section is followed by statements of the law, and the burden and standard of proof; no challenge is made to these and it is not, therefore, necessary to set them out. The final part of the decision consists of an assessment of the claim made by the applicant. That assessment centres upon the applicant's credibility. The Tribunal Member expresses doubts about the plausibility of seven elements of the applicant's account of events. Those seven matters relate to:-

6

(a) The applicant's account of his escape from captivity;

7

(b) His failure to mention the incidents relating to his siblings in 1997 and 2003 at any stage prior to the RAT oral hearing;

8

(c) His assertion that his family members remain in Somalia;

9

(d) His unfamiliarity with a prominent member of the Asharaf clan;

10

(e) His lack of knowledge about connections with the Rahanweyn clan;

11

(f) His failure to apply for asylum or seek assistance in Nairobi; and

12

(g) His inability to name all of the countries through which he travelled; this is a finding under section 11B of the Refugee Act 1996, as amended.

13

5. The Tribunal Member concludes that it has not been established that the applicant comes within the provisions of section 2 of the Act of 1996.

THE SUBMISSIONS
14

6. The applicant's complaints in respect of the RAT decision centre upon:-

15

(i) Errors of fact;

16

(ii) Flawed treatment of credibility; and

17

(iii) Breach of s.3, European Convention on Human Rights Act 2003.

(i) Errors of Fact
18

7. It is submitted that the Tribunal Member made errors of fact that were of such significance as to...

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