SO v Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 27 April 2017 |
| Neutral Citation | [2017] IEHC 255 |
| Court | High Court |
| Date | 27 April 2017 |
| Docket Number | [2015 No. 455 JR] |
[2017] IEHC 255
THE HIGH COURT
JUDICIAL REVIEW
Keane J.
[2015 No. 455 JR]
AND
AND
Asylum, Immigration & Nationality – The Refugee Act 1996 – The International Protection Act 2015 – Establishment of credibility – Reg. 5(2) of the European Communities (Eligibility for Protection) Regulations 2006 – Art. 39.1 of Council Directive 2005/85/EC – Well founded fear of persecution – Imputed political opinion.
Facts: The applicant sought an order of certiorari for quashing the decision of the first respondent that the applicant should not be declared a refugee. The applicant claimed that she was in the possession of confidential documents pertaining to the budget of the National Assembly in the country of origin, for which she had feared that she would be either tortured or killed by the military, after the coup. The applicant also argued that she had previously undergone persecution at the hands of prior military regime, wherein she had suffered rape, torture and detention and thus, she had no option but to flee the country of origin when the military coup took place for the second time. The applicant further submitted that she had close nexus with the named president of the country of origin owing to which, she had feared that she would be targeted in order to extract confidential information and documents from her.
Mr. Justice David Keane granted an order of certiorari to the applicant and thus, quashed the decision of the first respondent. The Court remitted the matter to a different member of the first respondent for a fresh hearing. The Court held that the first respondent had failed to address the core issue raised by the applicant, which was the fear of being prosecuted owing to the close working relationship between the applicant and the named president. The Court observed that the findings of the first respondent that the others, who were similarly situated as the applicant, were not tortured in any way in the country of origin was erroneous as the applicant's position was different from those other persons. The Court held that the first respondent's findings that there was no likelihood that the applicant would be subjected to torture again as considerable time had lapsed between the prior coup and the coup in issue in the present proceedings was unreasonable and erroneous. The Court held that though more than two decades had lapsed since the applicant's past persecution occurred, yet the applicant faced the same risk for imputed political opinion, which could form a basis for a well-founded fear of persecution. The Court observed that the lack of evidence of harm to the named president, with whom the applicant was closely associated, would not lead to a finding that the applicant would not be subjected to any harm or torture as the applicant could not claim protection as a prominent public figure as the named president.
The applicant challenges the decision of the International Protection Appeals Tribunal (“the Tribunal”), pursuant to s. 16 (2) of the Refugee Act 1996, as amended (“the 1996 Act”), to affirm the recommendation that she should not be declared to be a refugee. That decision was made on 16 July 2015.
On 12 October 2015, Mac Eochaidh J . granted leave to the applicant to apply for an order of certiorari quashing the decision on three specified grounds.
At the time when leave was granted, the Tribunal was known as the Refugee Appeals Tribunal. When s. 71(5) of the International Protection Act 2015 (“the 2015 Act”) came into force on 31 December 2016, the International Protection Appeals Tribunal was substituted for the Refugee Appeals Tribunal in these proceedings by operation of law.
It is not clear why the Minister for Justice and Equality, Ireland and the Attorney General have been made respondents to the application. However, nothing turns on it.
The applicant swore an affidavit on 29 July 2015. It contains averments to the following effect. The applicant is a national of the Republic of Guinea in West Africa. She is a member of the Malinke ethnic group and is now 54 years old. Her husband died of a stroke in 2005. She has nine dependent children who remain in Guinea. She claimed asylum upon her arrival in the State on 8 January 2009.
In broad outline, the evidence before the Tribunal was as follows:
(a) In 1984, President Sékou Touré, the leader of the Democratic Party of Guinea (“the PDG”), who was also of Malinke ethnicity and who had ruled as head of a one party state since shortly after the country gained independence from France in 1958, died in the USA after undergoing heart surgery there. A military coup ensued and Colonel Lansana Conté, of Soussou ethnicity, assumed the presidency. The applicant's father-in-law, who had been Minister for Security under Touré, and her husband, who had been active in the PDG, were arrested and interned in a military camp. The applicant's father-in-law was later summarily executed, together with other former ministers and officials of the Touré regime. The applicant's husband was detained for two and a half years before being released. Shortly after the arrest of her husband and father in law, soldiers came to the applicant's home. Although pregnant, she was detained for two days, during which period she was tortured, drugged and repeatedly raped, before being released.
(b) In 1996, in response to a radio advertisement, the applicant successfully completed an assessment test and obtained a job as a secretary in the accounting or finance department of the Guinean National Assembly, the country's unicameral parliament. The President of the National Assembly between 2002 and 2008 was El Hajj Aboubacar Somparé, a member of Conté's Unity and Progress Party (“the PUP”). As part of her duties, the applicant dealt with confidential files concerning the operations and budget of the National Assembly and she was trusted in that role by Somparé.
(c) In the early hours of 23 December 2008, Somparé, as President of the National Assembly, announced on television that Conté had died the previous day, due to illness. According to the relevant provisions of the Guinean Constitution, as President of the National Assembly, Somparé was to assume the Presidency of the country in a caretaker capacity, and a new presidential election was to be held within 60 days. However, within hours of the announcement, Moussa Dadis Camarra led a military coup d'état, later declaring himself president of the country and dissolving the government and various other institutions, including the National Assembly.
(d) According to the applicant, shortly after the coup occurred she was phoned by Somparé, who had found refuge in a foreign embassy. He told the applicant to hide because the military were looking for her in the belief that she held “very important and secret documents concerning the functioning of the budget of the Assembly”, together with other documents concerning “some mining contracts”, and that Somparé had placed large amounts of money in bank accounts under her name.
(e) Somparé arranged a vehicle in which the applicant left Guinea on 24 December 2008, entering the neighbouring state of Mali. There she was placed in the hands of a woman who, on his behalf, arranged tickets and travel documents for the applicant and accompanied the applicant on her journey by air from Mali to Dublin, via Paris.
The applicant completed a questionnaire in support of her refugee status application on 12 January 2009. She was interviewed by an authorised officer of the Refugee Applications Commissioner (“the Commissioner”) on 8 June 2009.
The report prepared for the Commissioner on 25 June 2009 concluded that the applicant had failed to establish her general credibility in relation to, in particular: her secretarial role in the National Assembly, in light of her family's ethnic background and history of persecution at the hands of the Conté/Somparé regime; her possession of highly valuable confidential information in that role; the existence of any risk to her based on her perceived possession of such information, in light of uncontroverted reports which suggest that Somparé himself came to no harm after the coup; the plausibility of the travel arrangements that Somparé made for her, which brought her through France en route to Ireland without contemplating an application for refugee status there, although both Somparé and the applicant are French speakers; and the circumstances of her journey to Ireland, specifically the retention of her travel documents at all times by the unidentified woman who travelled with her and the failure of the relevant authorities to require the applicant to present her own travel documents for inspection at any stage of that journey, in particular upon her entry to the State.
In consequence, the report found that the applicant had failed to establish a well-founded fear of persecution, as required by s. 2 of the 1996 Act. On 29 June 2009, the Commissioner recommended that the applicant should not be declared to be a refugee.
That decision was communicated to the applicant by letter of 10 July 2009. Through the Refugee Legal Service, the applicant lodged a notice of appeal, dated 22 July 2009. The appeal was heard by the Tribunal on 16 April 2015.
The Tribunal's decision is dated 16 July 2015. After a...
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