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

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice John Edwards
• Judgment Date: 03 February 2010
• Neutral Citation: [2010] IEHC 143
• Date: 03 February 2010

[2010] IEHC 143

THE HIGH COURT

Record No. 1114 J.R./2007

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

JUDICIAL REVIEW

BETWEEN/

A.A.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, AND OLIVE BRENNAN SITTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11

K (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (DURADO) UNREP BIRMINGHAM 12.6.2008 2008/31/6769 2008 IEHC 173

G (T) v REFUGEE APPEALS TRIBUNAL (MCGARRY) & ORS UNREP BIRMINGHAM 7.10.2007 2007/25/5206 2007 IEHC 377

S (DVT) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL 2008 3 IR 476 2007/54/11621 2007 IEHC 305

I (U) v REFUGEE APPEALS TRIBUNAL & ORS UNREP MURPHY 23.1.2007 2007/29/5935 2007 IEHC 72

MUIA v REFUGEE APPEALS TRIBUNAL (O'GORMAN) & ORS UNREP PEART 11.11.2005 2005/40/8300 2005 IEHC 363

K (G) & ORS v MIN FOR JUSTICE & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

RAJAH v ROYAL COLLEGE OF SURGEONS IN IRELAND & ORS 1994 1 IR 384 1994 1 ILRM 233 1993/14/4325

O'DONOGHUE v BORD PLEANALA & TALLON PROPERTIES LTD 1991 ILRM 750 1991/5/1081

KIKUMBI v REFUGEE APPLICATIONS CMSR & MIN FOR JUSTICE UNREP HERBERT 7.2.2007 2007 IEHC 11

P (F) & ORS v MIN FOR JUSTICE 2002 1 IR 164 2002 1 ILRM 38 2001/20/5496

KEAGNENE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (NICHOLSON) UNREP HERBERT 31.1.2007 2007/31/6465 2007 IEHC 17

BISONG v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (GARVEY) UNREP O'LEARY 25.4.2005 2005/4/814 2005 IEHC 157

REFUGEE ACT 1996 S16(8)

ZHUCHKOVA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 26.11.2004 2004/51/11705 2004 IEHC 414

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL (HURLEY) & MIN FOR JUSTICE UNREP PEART 9.7.2004 2005/15/3102 2004 IEHC 436

REFUGEE ACT 1996 S11B

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

T (G) v MIN FOR JUSTICE UNREP PEART 27.7.2007 2007/57/12325 2007 IEHC 287

IMMIGRATION

Asylum

Fear of persecution -Credibility - Adverse credibility findings - Nationality of applicant at issue - Language analysis test used to establish veracity of alleged nationality -Alleged failure by respondent to give reasons - Use of language test which was allegedly fundamentally flawed - Alleged failure by respondent adequately assess applicant's submissions on notice of appeal - Errors of fact by tribunal member - Whether language test fundamentally flawed -Whether use of language test in breach of fair procedures - Whether failure to give reasons breached natural and constitutional justice - Whether respondent reached adverse credibility findings as result of unfair procedures - Refugee Act 1996 (No 17) ss 11, 13 - DVTS v Minister for Justice Equality and Law Reform [2007] IEHC 305 [2008] 3 IR 476, K(I) v MJELR [2008] IEHC 173 (Unrep, Birmingham J, 12/6/2008), G(T) v Refugee Appeals Tribunal [2007] IEHC 377 (Unrep, Birmingham J, 7/10/2007), I(U) v Refugee Appeals Tribunal [2007] IEHC 72 (Unrep, Murphy J, 23/1/2007), Muia v Refugee Appeals Tribunal [2005] IEHC 363 (Unrep, Clarke J, 11/11/2005), Keagnene vMJELR [2007] IEHC 17 (Unrep, Herbert J, 31/1/2007), Bisong v Refugee Appeals Tribunal [2005] IEHC 157 (Unrep, O'Leary J, 25/4/2005), Zhuchkova v Minister for Justice Equality and Law Reform [2004] IEHC 414, (Unrep, Clarke J, 26/11/2004), Da Silveira v Refugee Appeals Tribunal [2004] IEHC 436, (Unrep, Peart J, 9/7/2004) and GK v MJELR [2002] 2 IR 418 considered - Rajah v Royal College of Surgeons [1994] ILRM 223, O'Donoghue v An Bord Pleanála [1991] ILRM 750, Kikumbi v Refugee Application Commissioner [2007] IEHC 11 (Unrep, Herbert J, 7/2/2007), P(F) v MJELR [2002] IR 164, Imafu v Minister for Justice [2005] IEHC 416 (Unrep, Peart J, 9/12/2005) and Tabi v Refugee Appeals Tribunal (Unrep, Peart J, 27/7/2007) applied - Relief granted (2007/1114JR - Edwards J - 3/2/2010) [2010] IEHC 143

Ethnic minority - Fear of persecution - Credibility - Criteria in determining refugee status - Country of origin information - Language analysis report - Knowledge of country and culture - Fair procedures - Reasons - Cumulative impact of errors - Whether substantial grounds- Whether breach of fair procedures and constitutional justice - Whether credibility findings result of breach of fair procedures - Whether process lawful - Whether finding rational, reasonable and within respondent's jurisdiction - Whether clear and manifest error - Whether prima facie breach of natural justice- K(I) v Minister for Justice, Equality and Law Reform [2008] IEHC 173, (Unrep, Birmingham J, 12/6/2008); G(T) v Refugee Appeals Tribunal [2007] IEHC 377, (Unrep, Birmingham J, 7/10/2007); S(DVT) v Minister for Justice, Equality and Law Reform [2007] IEHC 305, [2008] 3 IR 476; Iroegbu v Refugee Appeals Tribunal [2007] IEHC 72, (Unrep, Murphy J, 23/1/2007); Muia v Refugee Appeals Tribunal [2005] IEHC 363, (Unrep, Clarke J, 11/11/2005); K(G) v Minister for Justice, Equality and Law Reform [2002] 2 IR 418; Rajah v Royal College of Surgeons [1994] 1 ILRM 223; O'Donoghue v An Bord Pleanála [1991] ILRM 750; Kikumbi v Refugee Appeals Tribunal [2007] IEHC 11, (Unrep, Herbert J, 7/2/2007); F(P) v Minister for Justice, Equality and Law Reform [2002] 1 IR 164; Keagnene v Minister for Justice, Equality and Law Reform [2007] IEHC 17, (Unrep, Herbert J, 31/1/2007); Bisong v Regufee Appeals Tribunal [2005] IEHC 157, (Unrep, O'Leary J, 25/4/2005); Zhuchova v Minister for Justice, Equality and Law Reform [2004] IEHC 404, (Unrep, Clarke J, 26/11/2004); Da Silva v Refugee Appeals Tribunal (Unrep, Peart J, 9/7/2004); Imafu v Minister for Justice, Equality and Law Reform [2005] IEHC 416, (Unrep, Peart J, 9/12/2005 and Tabi v Minister for Justice, Equality and Law Reform [2007] IEHC 287, (Unrep, Peart J, 27/7/2007) considered - Refugee Act 1996 (No 17), ss 11, 13 and 16 - Leave granted (2007/1114JR) [2010] IEHC 143

A(A) v Minister for Justice, Equality and Law Reform

Facts: The applicant sought judicial review of a decision of the respondent Tribunal, affirming a negative recommendation of the Refugee Applications Commission. The applicant was a national of Somalia and claimed to be a member of the Bajuni minority clan from an island of Koyama. He claimed to have fled there following a series of incident of alleged persecution. A language analysis report had also been conducted finding that the applicant did not speak Somali. The applicant alleged that the language analysis was fundamentally flawed and breached fair procedures as the analyst lacked sufficient language competency and that specific findings of fact relating to country of origin information had been found resulting in a negative determination without those findings being put to him, in breach of fair procedures and natural and constitutional justice. The applicant also alleged that the decision failed to give sufficient reasons and was based on a flawed assessment of credibility. The respondent had concluded that the applicant did not have sufficient knowledge of Koyama Island and had not answered accurately or at all questions as to the islands, boat building and fishing-related questions.

Held by Edwards J. that it was a clear and manifest error to confront the applicant with a demand to know with what particular type of wood fishing boats were made from. It was wrong to attribute an incorrect answer to him in circumstances where no country of origin information was before the Tribunal dealing with this. Natural justice dictated that a person should have an opportunity to know the case against then. The application was not refused as the applicant was regarded as having given a wrong answer but rather for a variety of reasons. The detail had tipped the balance. The applicant had demonstrated in the circumstances substantial grounds for arguing that the entire decision be set aside.

Reporter: E.F.

1 JUDGMENT of Mr Justice John Edwards delivered on the 3rd day of February, 2010.

Introduction

2 This is an application for leave to apply for an Order of Certiorari and other reliefs by way of judicial review, primarily for the purpose of quashing a decision of the Refugee Appeals Tribunal rendered on the 31 ^st day of July 2007 and in which the Tribunal Member affirmed the earlier recommendation of the Refugee Applications Commissioner made in accordance with s.13 of the Refugee act, 1996 that the applicant should not be declared a refugee.

Background to the applicant's claim

3 The applicant claims to be of Somalian nationality, and to be a member of the Bajuni minority clan from the island of Koyama. Country of origin information establishes that the Bajuni population is scattered across a number of offshore islands off the southern Somali coast, of which Koyama is one, as well as coastal settlements running south of Kismayo as far as the border with Kenya.

4 The Bajuni represent the lowest caste and are on the bottom rung of the status ladder in the Somali society and it is generally accepted that they are frequently the object of contempt from other ethnic groups. Moreover, country of origin information exhibited by the applicant indicates that after the collapse of Siyad Barre's regime in Somalia in the early 1990's the Bajuni began to suffer more at the hands of other Somali clans and they were attacked by organized Somali clan militias, who wanted to force the Bajuni off the islands. Attacks became more severe and rape of Bajuni women was common. As the situation deteriorated in the civil war many Bajuni left Somalia for Kenya, the majority having left during 1992, by which time their position had become untenable - Danish Immigration Service Governmental Report, 17 Sept 2000.

5 The applicant claims to have had to flee Koyama in 2002 following a series of incidents of alleged persecution by members of other Somali clans over the previous two years, and in...