O.S. v Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 15 December 2015 |
| Neutral Citation | [2015] IEHC 839 |
| Court | High Court |
| Date | 15 December 2015 |
[2015] IEHC 839
THE HIGH COURT
Faherty J.
Asylum, Immigration & Nationality – Appeal against the decision of the Refugee Appeals Tribunal – Judicial review – Certiorari – Fear of persecution – Negative credibility findings – Issue of Nationality – Fake passport Due process – Fair procedures
Facts: The applicant sought leave for judicial review and an order of certiorari for quashing the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicant should not be declared a refugee. The applicant contended that the first named respondent had erred in law while dealing with the issue of the nationality of the applicant and it had breached the due process by denying the applicant an opportunity to prove his nationality. The applicant asserted that failure of the first named respondent to verify the credentials of the passport that he used for travelling and denial to his solicitors to examine that document was breach of fair procedures.
Ms. Justice Faherty granted leave and an order of certiorari in the present telescoped hearing and quashed the decision of the first named respondent and remitted the matter for a de novo hearing. The Court observed that where the claimant asserted that the documentary evidence presented as an indication of nationality was false and it was merely used for the purpose of travelling, the decision-maker was bound to consult the apparent state of origin to verify the claimant's status and also test the veracity of the documents presented. The Court found that the first named respondent's refusal to the applicant's solicitors to have a look at the fake passport and not sending the document for verification despite repeated requests was breach of fair procedures. The Court observed that despite the severance of the decision on the issue of nationality, the rest of the decision based upon negative credibility findings could not stand as the decision was largely based on the findings in relation to the nationality.
This is a telescoped hearing in which the applicant seeks leave for judicial review and an order of certiorari quashing the decision of the second named respondent which affirmed the recommendation of the Refugee Appeals Commissioner not to declare him a refugee.
A short extension of time required and the court was satisfied to grant same.
The applicant claims that he is a Muslim of the ethnic group Soninke or Sara Khole. He was born in Mauritania on 25th February, 1977. In 1989, a conflict arose between Mauritania and Senegal which included the specific targeting of black people. The applicant's parents fled either to Mali, a refugee camp or to Senegal. They did not want the applicant to go with them due to the danger so he went to live with his friend's family. He lost all his documents in the conflict and did not thereafter apply for a Mauritanian passport. It was impossible for him as a black African and a member of the Soninke tribe to obtain identity documents in Mauritania. He made a living selling fish on the beach at a market in Rosso, which is a fishing port. The circumstances in which he came to leave Mauritania were as follows: He was in a relationship with a named woman, who was also a market trader and who sold cosmetics. He was not married to this woman. She became pregnant. The applicant feared for the consequences as under Sharia law he would be killed. With the agreement of his girlfriend he decided to flee Mauritania. He bought a passport from a named businessman for which he paid 3,500,000 CFA, money he saved from selling fish together with a sum of money given to him by his girlfriend. She also fled the country and he has since tried to contact her without success.
The applicant left Mauritania by boat and went to Spain. From there he travelled to Italy by train, accompanied by the businessman. After two nights in Italy, the applicant and the agent flew to Ireland. On arrival, the applicant was arrested at Dublin airport and indicated his wish to seek asylum on 4th April, 2012. He claimed that if he returned to Mauritania he would have his hands and legs amputated and suffer further mutilation because he was in breach of Sharia law.
The applicant arrived in the state on 3rd April, 2012 bearing a passport issued by the Republic of Guinea-Bissau and bearing a name hereinafter referred to as OA.
A s. 8 interview took place in Dublin Airport recorded by a GNIB officer on 4th April, 2012 and another was recorded by the Office of the Refugee Appeals Commissioner (ORAC) on 10th April, 2012. The GNIB version states that the applicant is OA and that his country of origin is Republic of Guinea Bissau. The accompanying asylum application form contained the same information, but stated the applicant's address as ‘Mauritanie’. In the s. 8 interview by ORAC, the applicant gave his name as OS, his date of birth as 25/02/1977 and his nationality as Mauritanian, his place of birth was stated as Rosso, Mauritania. He completed a questionnaire on 11th April, 2012 in French, subsequently translated. He gave his name as OA and place of birth Mauritania and nationality as Mauritanian but in an addendum claimed that his real name was OS.
The applicant was interviewed pursuant to s.11 on 1st May, 2012.
ORAC refused the application for asylum by letter dated 12th June, 2012.
• There were serious credibility concerns in relation to the applicant's assertion that he was a national of Mauritania. The applicant did not display an adequate knowledge in relation to basic questions about his alleged home of Rosso. In addition, he did not produce identity documents to indicate that he was a native of Mauritania.
• The applicant, despite going out with his girlfriend for 18 months, did not know her date of birth and was unaware if she had any siblings. This gave rise to credibility concerns about his relationship.
• The applicant stated that he decided to leave Mauritania as soon as his girlfriend informed him she was pregnant. He stated that she did not show him any medical evidence and he was unaware if she subsequently gave birth. It was considered unlikely the applicant would flee based on one conversation with his girlfriend.
• The applicant failed to give a valid reason for his failure to apply for asylum in the first safe country following his departure from his country of origin.
The applicant appealed the Commissioner's recommendation on 3rd July, 2012. The appeal submissions by the Refugee Legal Service (RLS), his then solicitors, asserted, inter alia, as follows:-
• The ORAC erred in law. The applicant had a well-founded fear of persecution in Mauritania because of his political opinion/imputed political opinion, particular social group, his race and his religion.
• The applicant truthfully presented a plausible account which did not contradict generally known facts about Mauritania and was therefore on balance, capable of being believed.
• The authorised officer erred in inaccurately characterising the grounds upon which asylum was sought.
• Information given by the applicant on his questionnaire and in the s.11 interview was not appropriately assessed. In particular, the finding of the RAC that the applicant was from Guinea-Bissau was fundamentally erroneous.
• The applicant displayed a sufficient knowledge of Mauritania.
• With reference to Canada (Attorney General) v Ward [1993] 2 SCR 689; Sangha v Immigration and Naturalization Service 103 F.sd 1482; and Raul Rodolfo Lira Pastene Immigration Appeal Board Decision M79-1132, it was submitted that the applicant, in contravening Mauritanian law, was likely to be attributed a political opinion in opposition to the authorities within Mauritania.
• The applicant established to a reasonable degree of likelihood that he was a refugee within the meaning of section 2 of the Refugee Act, 1996 (as amended).
• State protection was not available to the applicant in Mauritania, nor was internal relocation an option.
• The authorised officer failed to have regard to any or have any adequate regard to the difficulties which the applicant may have experienced in obtaining documents and in regard to those documents actually submitted.
• The authorised officer allowed his personal beliefs to affect the application of the legal criteria in assessing the claim.
• The authorised officer failed to have any or analyse adequate regard to cultural differences.
• The section 13 report and recommendation of the authorised officer was unsustainable in the light of country of origin information.
• The authorised officer failed to afford the benefit of the doubt in accordance with Paras. 196 and 204 of the UNHCR Handbook.
• Adequate regard was not had to the cumulative effect of the applicant's experiences as envisaged by Paras 53 and 201 of the UNHCR Handbook and the effect which those experiences had upon the applicant, forcing him ultimately to leave Mauritania in late March, 2012.
The RAC erred in the following:
i. Did not perform its duty of investigation and inquiry under the shared burden of proof sufficiently. In particular, its finding that the applicant was from Guinea-Bissau was fundamentally flawed.
ii. Institutional bias, as the approach taken was adversarial rather than supportive and inquisitorial.
iii. There was a failure to properly summarise the applicant's case.
iv. Failed to consider the definition of ‘persecution’ An applicant does not have to have suffered persecution in order to fall...
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Rashid v The Minister for Justice and Equality
...383 (Unreported, High Court, 28th July, 2009) at para. 13. It was also referred to by Faherty J. in O.S. v. Refugee Appeals Tribunal [2015] IEHC 839 (Unreported, High Court, 15th December, 2015) at para. 59 and by Barr J. in P.M. v. Refugee Appeals Tribunal [2014] IEHC 497 (Unreported, High......