R. -v- MJELR & Ors, [2008] IEHC 139 (2008)

Docket Number:2006 911 JR
Party Name:R., MJELR & Ors
Judge:Herbert J.
 
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THE HIGH COURT

JUDICIAL REVIEW 2006 No. 911 J.R.BETWEENU. R.APPLICANT AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND

BERNARD G. McCABE, THE REFUGEE APPEALS TRIBUNAL RESPONDENTSJUDGMENT delivered by Mr. Justice Herbert on the 8th May, 2008.

This is an application for leave to seek judicial review. There was a delay of thirty one days on the part of the applicant in seeking this relief, which s. 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000, stipulates must be sought within a period of fourteen days from the specified date, unless this Court considers that there is good and sufficient reason for extending the period. I considered the evidence, which was put before the court in the Affidavit of the applicant sworn on 6th July, 2006, and in the Affidavit of Noori Alkazzaz, Medical Doctor, sworn on 21st July, 2006. I have also had regard to what was advanced by Counsel for the applicant, to the statement by Counsel for the respondents that they were making no objection to time being extended and, to the conclusion of the Authorised Officer of the Refugee Applications Commissioner in his Report made pursuant to the provisions of s. 13(1) of the Refugee Act 1996, (as amended), that the applicant suffers from the effects of mental stress.

Having assessed these matters in the light of the principles identified by Finnegan J. in "G.K." v The Minister for Justice, Equality and Law Reform [2002] I.L.R.M. 81, I am satisfied that this applicant in the special circumstances which I found to be established, had shown reasonable diligence in seeking this relief and that there was good and sufficient reason for it extending the time, despite what would otherwise be an altogether excessive and unacceptable delay on the part of the applicant in seeking this relief. I therefore exercised my discretion in favour of the applicant and made an Order extending the time to enable him to prosecute this application.

The decision of the Member of the Refugee Appeals Tribunal (Bernard G. McCabe), which the applicant seeks leave to judicially review, is eighteen pages in length and, was given after an oral hearing before the Tribunal on 11th January, 2006, and the 2nd February, 2006, at which the applicant was represented by a Solicitor from the Refugee Legal Service.

The Member of the Refugee Appeals Tribunal found that the applicant appeared to possess no identification documents and provided no reasonable explanation for the absence of such documents. He found that the applicant had been living in Europe for a considerable length of time and that it was neither plausible nor credible that he could provide no document establishing his identity to the Refugee Appeals Tribunal and, that this undermined his credibility. The Member of the Refugee Appeals Tribunal had regard to the provisions of s. 11B(a) of the Refugee Act 1996, (as inserted by s. 7(f)) of the Immigration Act 2003), which directs that in assessing credibility he shall have regard to whether the applicant possesses identity documents and if not, whether he has provided a reasonable explanation for their absence.

It was submitted by Counsel for the applicant that the decision of the Member of the Refugee Appeals Tribunal, that the applicant had provided no reasonable explanation for the absence of documents, was not reasonable or rational and was in the teeth of common sense having regard to the information before the Refugee Appeals Tribunal. In addition, Counsel said, that the Refugee Appeals Tribunal, pursuant to the provisions of s. 16(6) of the Refugee Act 1996, (as amended), could and should have caused the Refugee Applications Commissioner to make further enquiries from the Police Authorities in the Netherlands and also from the Garda Síochána, before reaching a conclusion as to the credibility of the applicant. In support of this argument Counsel for the applicant cited para. 196 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status which provides that:-"It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt." Section 16(6) of the Refugee Act 1996, (as amended) provides as follows:-"The Tribunal may, for the purposes of its functions under this Act, request the Commissioner to make such further inquiries and to furnish the Tribunal with such further information as the Tribunal considers necessary within such period as may be specified by the Tribunal." The evidence relevant to this issue was recorded by the Member of the Refugee Appeals Tribunal in his decision, and the following is a summary of that evidence.

The applicant claims to be a university educated Syrian national, who became suspected by the Security Service in Syria of communicating with a militant political group opposed to the present Head of State and was imprisoned and tortured. As a result of this maltreatment he suffered a mental breakdown, requiring hospital treatment and, nervous attacks which lasted for approximately three years. He accepted that he had no medical evidence of this torture or maltreatment. His family secured his release from prison through their contact with a highly placed official and had arranged for him to leave Syria, from where he travelled to Germany and from there to the Netherlands. He said that he had two false passports, one Syrian and one Iraqi. He left these for safekeeping with a person with whom he had shared a hostel. That person was subsequently arrested by the Netherlands Police on suspicion of murder. The applicant said that the Netherlands Police had sent these two false passports to the Syrian Embassy in Brussels and had also sent two reports on him to that Embassy. He felt that this had put his life in danger.

At this point the oral hearing before the Refugee Appeals Tribunal was adjourned at the request of the applicant's Solicitor to enable him to take further instructions.

Correspondence received by the Refugee Appeals Tribunal indicated that on the 23rd September, 2005, at Ennis Garda Station the applicant was questioned by two members of An Garda Síochána who were accompanied by three members of the Netherlands Police Authority.

The oral hearing before the Refugee Appeals Tribunal resumed on 2nd February, 2006, and the applicant stated that the Netherlands Police knew his real identity because they discovered two different passports in his name. He said that in 2000 and 2004 the Netherlands Police had received two false reports alleging that he was a member of Al Qaeda. Officers of An Garda Síochána and of the Netherlands Police had questioned him about his relationship with persons called Ahned Al-Ashqar and Basil Al-Eisa in connection with the investigation by the Netherlands Police into the murder of a well known film maker in the Netherlands. He said that the Irish and the Netherlands Police would not give him any information because it related to terrorist activities.

The applicant said that in November 1996, he had a genuine Syrian passport and had no difficulty leaving that State. He said he travelled to Germany but did not seek asylum there. He arrived in the Netherlands in November 1996, and sought asylum there because Syria did not have an Embassy in the Netherlands. He said that it was not until 1999 or 2000 that he received a decision refusing his application for asylum.

Meanwhile, in December 1997, he had returned to Syria for financial and family reasons. He had used his genuine passport to return to Syria. He accepted that he was not questioned and had no difficulties with the Authorities in Syria. However, he then said that the Syrian Authorities were trying to confiscate his passport as he had delayed his military service. To leave Syria again, he said, that he needed to get the agreement of the Syrian Security Services and that this was not provided. He went to the Turkish Embassy and got a visa. He remained in Syria for about four months. The passport he used, he gave to Ahmed Al-Ashqar for safekeeping.

Between September 2004 and March 2005, he went to the United Kingdom. He flew from Amsterdam to London using a false French passport which he later destroyed. The two false passports which he had left for safekeeping with Ahmed Al-Ashqar had fallen into the hands of the Netherlands Police.

From 2000 to 2004 he was in receipt of State benefits in the Netherlands. He had worked as a decorator in the Netherlands and when he went to the United Kingdom he obtained work through the Mosque as a painter and decorator. When his money ran out he became "fed up" with the United Kingdom and he was also afraid that he would be sent back to Syria. He was...

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