T (A.T) v The Minister for Justice, Equality and Law Reform and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 19 November 2009
• Neutral Citation: [2009] IEHC 503
• Docket Number: 1310 JR 2000
• Court: High Court
• Date: 19 November 2009

[2009] IEHC 503

THE HIGH COURT

1310 JR 2000

T (A T) v Min for Justice & Refugee Appeals Tribunal

[2009] IEHC 503

A.T.T.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

AND

THE REFUGEE APPEALS TRIBUNAL

RESPONDENT

REFUGEE ACT 1996 S11B

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S16(8)

B (A) & M (D) v SECRETARY OF STATE FOR THE HOME DEPT UNREP 21.7.2005 2005 UKIAT 118

W (EA) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP HEDIGAN 4.11.2008 2008/61/12623 2008 IEHC 343

M (HH) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 13.5.2009 2009 IEHC 244

N (M) v REFUGEE APPEALS TRIBUNAL UNREP BIRMINGHAM 2.7.2008 2008 IEHC 218

IMMIGRATION

Asylum

County of origin information - Fair procedures - Reliance on country of origin information that had not been disclosed - Information which should have been furnished in writing read out orally at hearing - Technical non-compliance - Information not communicated to applicant in writing - Whether apparent breach went to fairness of procedures - Whether the breach purely technical kind not impinging on quality of decision making process - Whether documents not furnished related to central element of claim - Whether any substantial unfairness or disadvantage to applicant - Whether case turned on findings in relation to credibility - AB v Home Secretary [2005] UKIAT 118, (Unrep, 21/7/2005), EAW v Refugee Appeals Tribunal [2008] IEHC 343, (Unrep, Hedigan J, 4/11/2008), HHM v Refugee Appeals Tribunal [2009] IEHC 244, (Unrep, Cooke J, 13/5/2009), MN v Refugee Appeals Tribunal [2008] IEHC 218, (Unrep, Birmingham J, 2/7/2008) and MN v Refugee Appeals Tribunal [2009] IEHC, (Unrep, Cooke J, 1/7/2009) considered - Refugee Act 1996 (No 17), ss 2, 11B and 16(8) - Relief refused (2000/1310JR - Birmingham J - 19/11/2009) [2009] IEHC 503

T (A T) v Minister for Justice

Facts The applicant claimed a fear of persecution based on his involvement with the Union of Youth for Democracy and Social Progress (JUDPS) in the Democratic Republic of Congo. The respondent refused the applicant's application on appeal for refugee status, stating that certain events outlined to him were not plausible or not believable and further that the applicant's knowledge of JUDPS was not sufficiently detailed. The respondent also relied on country of origin information obtained from the ein.org website which stated that there was no systematic targeting of UDPS members in D.R. Congo. The applicant alleged that the respondent acted in breach of fair procedures by relying on country of origin information that had not been disclosed to the applicant or his legal advisor and further that the respondent breached s. 16(8) of the 1996 Act by failing to state the nature and/or source of information that came to its attention in the course of the appeal. Essentially, the applicant took issue with the fact that the respondent in the course of the appeal hearing referred to country of origin information that was not furnished to the applicant. The applicant submitted a large volume of documents to the respondent both prior to and subsequent to the appeal hearing.

Held by Birmingham J. in refusing the application: That there was at least a technical non-compliance with s. 16(8) of the Refugee Act, 1996 in that whatever information was communicated to the applicant and his solicitor in relation to the country of origin documents was not furnished in writing. The information in question was up-to-date information accessed by the respondent from a highly respected source. The respondent advised the applicant of the nature of the information and the applicant submitted further documentation to support his appeal. In the circumstances, there was no substantial unfairness to the applicant. In any event, it was clear from a reading of the decision that it was based on negative credibility findings and therefore it was unnecessary for the respondent to address the matters contained in the country of origin information.

Reporter: L.O'S.

1 Mr. Justice Birminghamdelivered the 19 day of November 2009

2 1. By order of the High Court dated the 19 ^th January, 2009, the applicant was granted leave to seek judicial review, on certain grounds, of a decision of the tribunal dated the 4 ^th October, 2006. The decision which is the subject matter of the present proceedings was initially challenged on a great number of grounds, and there followed an unusually lengthy leave hearing, lasting three days, which resulted in the applicant being refused leave in respect of some of the grounds that he had advanced but being granted leave on relatively narrow grounds.

3 2. The background to the claim for asylum is that the applicant states that he is a national of the Democratic Republic of the Congo and indeed this has not been the subject of controversy. The applicant is now 27 years of age. In 2000 he became involved in the youth wing, JUDPS (Union of Youth for Democracy and Social Progress), of the UDPS, an opposition party in the Democratic Republic of the Congo (D.R.C.) Thereafter, he operated as a party activist distributing information about party meetings and the like.

4 3. Matters seemed to have been essentially uneventful until 2002 when, according to him, at a time he was not there, a summons was sent for him to his home. Shortly after this members of the military came to his family home, broke down the door and, at gunpoint, subjected the family, including the applicant to acts of unspeakable depravity. The applicant was removed from his home and brought to a detention centre, the Demiap, where he was placed in a cell by himself. The next day he was brought to a different place of detention which was under ground. There, over the following two weeks or so he was raped seven or eight times and lashed twice daily.

5 4. After approximately two weeks the military came to him, provided him with a shirt and took him to a jeep which brought him to a friend. He stayed at a particular location for some nine to ten months. During this period he alleges that on an occasion he went to the river but he was seized by crocodiles, but following the intervention of a priest who went to the Chief of the village, the applicant was brought back to life after ten days. After the intervention of the priest in the crocodile incident, the applicant stayed with him in a seminary. One day an uncle came to him and told him that his face was in the newspapers and that there was no place for him to stay in the Democratic Republic of the Congo. At that stage he was introduced to a friend who went with him to the airport, from where both travelled to Belgium and then onward to this country. Subsequently the applicant was not in a position to produce travel documents and indicated that the agent looked after everything.

6 5. The operative part of the decision that is now challenged is relatively brief and, for ease of reference, I will quote it now.

"The applicant is not a refugee. The following matters are the reasons for my decision:"

(1) Since the establishment of the Inter Government Agreement in 2003 after the Sun City Agreement, country of origin put to the applicant states that there is no systematic targeting of UDPS. members. While there are reports of arrest, it is also reported that UDPS have their own lawyers in D.R. Congo who represent supporters and are successful in obtaining their freedom, should they be detained.

(2) In relation to his stay in Demiap Detention Centre, country of origin information states many people share a cell but the applicant gave evidence that he was alone. His evidence therefore contradicts well-known facts.

(3) His knowledge of the JUDPS was not in keeping with someone who was supposedly involved in that organisation and his attempts at explaining these short comings were not plausible.

(4) As someone who was allegedly involved in politics and whose face was allegedly all over the newspaper because of his activities, it is not plausible that he was unaware of the developments in D.R. Congo, particularly as these took place when he was in that country. His reply that "I didn't keep up-to-date in relation to politics" is not plausible.

(5) His evidence of being killed by crocodiles and being brought back to life through the intervention of a priest who later helped him leave D.R. Congo is not believable even allowing for cultural differences.

(6) The matter of arrest warrants and summons were addressed at the hearing and it is well recognised that these and others documents can be forged or easily obtained in D.R. Congo. Blank documents are also available.

(7) He states he was in a part of D.R. Congo for almost ten months after his ordeal but no harm whatsoever came to him, none of course except being killed by crocodiles and then being brought back to life by a priest. This in a part of D.R. Congo where the applicant was free from persecution, that is if he actually did experience such.

(8) Section 11(b) of the Refugee Act, 1996(as amended) applies to evidence of his departure and arrival here.

7 I am not satisfied he suffered persecution and given the state of developments in D.R. Congo since the Sun City agreement, the recent elections and matters already referred to in relation to that country I am satisfied that he has no future fear of persecution.

8 The applicant has not established that he has a well-founded fear of persecution for any of the reasons in s. 2 of the Refugee Act, 1996. I affirm the recommendation of the Commissioner.

Leave Granted

9 6. The applicant was granted leave on four grounds (namely):-

10 (1) That the tribunal had acted in breach of fair procedures by relying on country of origin information that had not been disclosed to theapplicant or his legal advisor as referred to in para. (1) of p. 7 of the decision.

11 (2) That the tribunal...