Sango v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 24 November 2005
• Neutral Citation: [2005] IEHC 395
• Docket Number: Record Number: No. 29 JR/2005
• Court: High Court
• Date: 24 November 2005

[2005] IEHC 395

THE HIGH COURT

Record Number: No. 29 JR/2005

S (DM) v Minister for Justice

Between:

Deogratius Mbayo Sango

Applicant

And

The Minister for Justice, Equality and Law Reform, and David McHugh, Tribunal Member, Refugee Appeals Tribunal

Respondents

REFUGEE ACT 1996 S2

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

T (AM) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2004 2 IR 607 2004/49/11175 2004 IEHC 219

KRAMARENKO v REFUGEE APPEALS TRIBUNAL & ORS 2005 4 IR 321 2004 2 ILRM 550 2004/26/6170 2004 IEHC 240

IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 10.5.2005 2005/31/6357 2005 IEHC 150

MEMISHI v REFUGEE APPEALS TRIBUNAL & ORS UNREP PEART 25.6.2003 2003/35/8424

HORVATH v SECRETARY OF STATE FOR THE HOME DEPT 1999 INLR 7

R v IMMIGRATION APPEALS TRIBUNAL, EX PARTE AHMED 1999 INLR 473

IMMIGRATION:

Asylum

Fair procedures - Reasons - Finding of lack of credibility - Whether tribunal should have referred to country of origin information - Whether tribunal decision based on conjecture - Whether tribunal entitled to make bald finding as to lack of credibility - M (S) v Refugee Appeals Tribunal (Unrep, Peart J, 25/6/2003) followed; Camara v Minister for Justice (Unrep, Kelly J, 26/7/2000); T(AM) v Refugee Appeals Tribunal [2004] IEHC 219, [2004] 2 IR 607; Horvath v Secretary of State for the Home Department [2000] 3 WLR 379 and R v Immigration Appeals Tribunal, ex p Ahmed [1999] INLR 473 considered - Refugee Act 1996 (No 17), s 2 - Leave granted (2005/29JR - Peart J - 4/11/2005) [2005] IEHC 395

S (DM) v Minister for Justice

Facts: The applicant sought leave to challenge by way of judicial review, the decision of the second named respondent refusing to grant the applicant refugee status. The applicant submitted that the second named respondent erred in engaging in speculation and conjecture in arriving at his conclusions as to lack of credibility and further that the respondent’s finding of lack of credibility related to peripheral matters.

Held by Peart J. in granting leave: That the applicant established that there were substantial grounds to support his submission that the respondent erred in concluding that the applicant was not a refugee. It was arguable that the respondent relied upon matters that were too peripheral to the core issue when determining that the applicant was not credible and furthermore it was arguable that he relied on personal conjecture.

Reporter: L.O’S.

Judgment of

Mr Justice Michael Peart

1 The applicant is a national of the Democratic Republic of Congo and sought asylum here on the 8th May 2003. His application was refused by the Refugee Appeals Commissioner, from which refusal her appealed to the Refugee Appeals Tribunal. A decision was made on the 11th November 2004 wherein the 2nd named respondent herein made a finding that the applicant was not a refugee within the meaning of s. 2 of the Refugee Act,1996 as amended, and he affirmed the recommendation of the refugee Appeals Commissioner, and dismissed the appeal.

2 At the absolute heart of this application is the fact that the applicant states that although born in DR Congo and a Congolese of the Hemba tribe, he has suffered persecution at the hands of the authorities in DR Congo because he has what are described as "Tutsi features" and the authorities believe that he is not therefore of Congolese origin, but rather a member of the Tutsi tribe of Rwanda. He states that he was beaten while in prison. It appears also that when he was about to be married the authorities became suspicious also about the origin of his proposed wife, and that her mother was in fact Rwandan, but that her father was Congolese. There was also the difficulty that apparently that some ordnance and ammunition was found in the house of one of her cousins. She was arrested and when the applicant went to look for her, he also was arrested but managed to escape apparently with the assistance of a guard who the applicant thinks was also of Himba origin. The applicant stated that he managed to escape by asking to go to the toilet, that there was only one soldier on duty and that this soldier assisted his escape.

3 The applicant states that he left DR Congo and went to Zambia in 2001, where he got work as a labourer on farms. He remained there until 2003. In his interview at Q.7 he stated that he was paid very little for this work because he was working on the Black Market. However at Q.20 he was asked where he had got US$1000 which he paid for his trip to this country he replied: "When I was in Zambia I worked on farms. It was very hard to earn that money. I saved the money during the time I spent in Zambia."

4 He also stated that he was arrested in Zambia also but was offered the option of claiming asylum which he declined, and he stated that the reason why he declined that option was that after the rebellion in Zambia which resulted in the death of Laurent Kabila, all Tutsis were suspected of being involved in the war and would be targeted, and that because of the fact that he has the physical features of a Tutsi he would be targeted also.

5 Given the basis of the decision of the Tribunal Member, namely on the ground of lack of credibility on three specific grounds, it is for the moment at least unnecessary to set out the facts of this case in any further detail.

6 In his decision, the 2nd named respondent found the applicant not to be credible for three particular reasons which are set out in the decision. He states:

"I have great difficulty in believing the whole of the applicant's story. The applicant's evidence must be coherent and plausible, but I do not find the applicant credible for the following reasons:

The applicant stated before the Tribunal that he had managed to escape as a result of a guard identifying him to be a member of the Hemba tribe....