V (F) v Refugee Appeals Tribunal (Dourado) v Min for Justice

• Jurisdiction: Ireland
• Judge: MS. JUSTICE IRVINE,
• Judgment Date: 28 May 2009
• Neutral Citation: [2009] IEHC 268
• Court: High Court
• Date: 28 May 2009

V (F) v Refugee Appeals Tribunal (Dourado) v Min for Justice

JUDICIAL REVIEW

BETWEEN

F.V.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL (RICARDO DOURADO) AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

[2009] IEHC 268

[No. 639 J.R./2008]

THE HIGH COURT

IMMIGRATION

Asylum

Judicial review - Refoulement - Applicant asserting risk of persecution on basis of being failed asylum seeker if refouled - Tribunal member having erred in concluding tribunal had no jurisdiction as to question of refoulement - Negative credibility findings - Country of origin information - Previous tribunal decisions - Whether failed asylum seekers a social group - Whether respondent failed to consider element of applicant's claim - Whether respondent's technical error as to jurisdiction fatal to decision - Whether court should exercise discretion not to quash decision in circumstances where applicant could derive no benefit from relief - RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 (19/11/2008) approved; W124 v Minister for Immigration and Multicultural Affairs [2001] FCA 1387, Ali v Minster of Citizenship and Immigration [2008] FC 448, SI v Refugee Appeals Tribunal [2009] IEHC 8 (Unrep, Finlay Geoghegan J, 16/1/2009), A v Secretary of State for the Home Department [2007] 1 WLR 3134, Januzi v Secretary of State for the Home Department [2006] 2 AC 426, Lema v Refugee Appeals Tribunal [2009] IEHC 26 (Unrep, Clark J, 21/01/2009) and Imafu v Refugee Appeals Tribunal [2005] IEHC 416 (Unrep, Clarke J, 09/12/2005) considered - Refugee Act 1996 (No 17), ss 2, 5, 16 and 17 - Relief refused (2008/639JR - Irvine J - 28/5/2009) [2009] IEHC 268

V (F) v Refugee Appeals Tribunal

Facts: the applicant appeal against the recommendation of the Refugee Applications Commissioner refusing him asylum was refused by the Refugee Appeals Tribunal. The applicant claimed in his submissions to the Tribunal that in addition to his fear of persecution by reason of his political opinion, he feared persecution, on a secondary basis, by reason of his status if refouled to Togo as a failed asylum seeker and/or a failed asylum seeker who sought asylum abroad on grounds of his political opinion and/or by reason of his status as a failed asylum seeker if refouled who is opposed to the ruling regime. The Tribunal refused the appeal on the main ground advanced due to an adverse credibility finding and found that it did not have jurisdiction to consider the secondary element of the claim for asylum advanced. The applicant was granted leave to quash that decision by way of judicial review.

Held by Irvine J in dismissing the application that to come within the definition of a refugee under section 2 of the Refugee Act 1996, an asylum seeker had to show a well founded fear of persecution for a Convention reason, that is by reason of his nationality, race, religion, membership of a particular social group or political opinion. Failed asylum seekers per se were not members of a particular social group nor did it necessarily signify that they held any particular political opinions. However, where a clear Convention nexus was shown, a person’s fear of persecution by virtue of his status as a failed asylum seeker could be capable of bringing him within the section 2 definition. Nor should the making of a self serving, unfounded initial claim exclude any person from the protection of the Refugee Act 1996, but it was a factor that should be taken into account and accorded some weight by the decision maker when credibility of the claim for asylum advanced was being assessed. Moreover, given the scope for abuse of the asylum process, cogent, authoritative and objective country of origin information that all failed asylum seekers were targeted for persecution in the person’s country of origin and demonstrating a Convention nexus would have to be shown. Even though the respondent had made a technical error as to jurisdiction when recording that refoulement was not within its remit, it would not have made any difference to the outcome had the respondent engaged in such a consideration as there was no sufficiently cogent evidence that failed asylum seekers who were not known, active opposition supporters, were at real risk of persecution if returned to Togo for a Convention reason and the applicant had not suffered any prejudice or injustice.

Reporter: P.C.

REFUGEE ACT 1996 S5(1)

GIDEY v REFUGEE APPEALS TRIBUNAL UNREP CLARK 26.2.2008 (EX TEMPORE)

W124 v MIN FOR IMMIGRATION 2001 FCA 1387

ALI v CANADA (CITIZENSHIP & IMMIGRATION) 2008 FC 448

I (S) v REFUGEE APPEALS TRIBUNAL UNREP FINLAY-GEOGHEGAN 16.1.2009 2009 IEHC 8

EGHAREVBA v REFUGEE APPLICATIONS CMSR CLARK 19.2.2008 (EX TEMPORE)

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S2

A (A) v SECRETARY OF STATE FOR THE HOME DEPT 2007 1 WLR 3134 2007 2 AER 160

JANUZI v SECRETARY OF STATE FOR THE HOME DEPT 2006 2 AC 426 2006 2 WLR 397 2006 3 AER 305

ZADA v REFUGEE APPEALS TRIBUNAL UNREP CLARK 7.11.2008 (EX TEMPORE)

L (LC) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP 21.1.2009 2009 IEHC 26

REFUGEE ACT 1996 S17(7)

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

REFUGEE ACT 1996 S5

REFUGEE ACT 1996 S16

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION) ART 33

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION) ART 1A(2)

RN (RETURNEES) ZIMBABWE 2008 UKAIT 00083

1 This is an application for judicial review of the decision of the Refugee Appeals Tribunal (RAT), dated 10 ^th April, 2008, 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 was granted by Birmingham J. on 21 ^st January, 2009 on the following ground:-

"The Tribunal Member erred in jurisdiction and in law in the conclusion he has reached with respect to the issue of refoulement. The Tribunal Member has erred in jurisdiction and in law in concluding that refoulement is not within the remit of the Tribunal in circumstances where submissions were made on behalf of the Applicant that he would be at risk of persecution if refouled to Togo as a failed asylum seeker."

2 The applicant is seeking an order of certiorari quashing the RAT decision and a further order directing that his claim be remitted for rehearing.

Background

3 The applicant claims to be a national of Togo. He says that before coming to Ireland he and his wife lived in Lomé with their two children. Their neighbourhood was a stronghold of the ruling party, the Rassemblement du Peuple Togolais (RPT). In 1999 he joined the opposition party, the Union des Forces de Changement (UFC). He claims to have became well known in his neighbourhood as a UFC activist and that his role was to distribute propaganda tracts.

4 The applicant claims that his troubles began after elections took place on 1 ^st June, 2005. He acted as a coordinator at a polling station during the election. After the election the UFC suspected that the RPT had committed electoral fraud. The applicant says he was given UFC tracts to distribute, encouraging people to demonstrate if the ruling party was re-elected. Although the details are a little hazy it seems he attended a demonstration on 2 ^nd June and distributed tracts there. The following day (3 ^rd June), he was arrested at his home by four men who seized the remaining UFC tracts and took him to a detention camp. On 4 ^th June it was announced that the RPT had won the election. The applicant says he was interrogated, beaten by various means and subjected to various invidious forms of torture including the burning of his feet with cigarettes, the pouring of water over his naked body, deprivation of food and medicine and the administration of electric shocks to his genitals.

5 The applicant says that he remained at the detention camp until 13 ^th July, 2003 when he was helped to escape by a guard who was a family friend and who was bribed by the applicant's sister. He went to stay with his aunt in Ghana for 15 days. There, he received treatment for his injuries. A priest financed his travel to Ireland with a trafficker. They travelled by plane, with a 20-minute stop-over in Amsterdam. The trafficker gave him documents to get through immigration but he then took them back. The applicant says his wife and two children are in Benin with his sister.

The ORAC stage

6 The applicant applied for asylum upon arrival in Ireland in July, 2003. At all stages of the ORAC process his claimed to fear of persecution by reason of his political opinion. He submitted various documents including a UFC membership card and contribution card, a sample UFC tract and a letter from the UFC in France attesting that he is an active UFC member. He also submitted a letter from the Eastern Health Board confirming that he had attended the psychology service on nine occasions and received therapy for stress management.

7 A negative recommendation issued from ORAC on 21 ^st January, 2005. Various negative credibility findings were made with respect to the applicant's account. The authorised ORAC officer found that he was involved at a politically low level in the UFC and was unlikely to be in a position to attract the attention of the Togolese authorities. It was found that his knowledge of the UFC was consistent with that which one might expect of a Togolese national but not at the level one would expect from a political activist. It was noted that the applicant was unfamiliar with a new electoral commission established in 2003 and with the Lomé Framework Agreement and it was stated that it was not unreasonable to suggest that a political activist would have a good knowledge of political structures in their country.

The Appeal

8 The applicant appealed...