A v Refugee Appeals Tribunal and Others

JurisdictionIreland
JudgeMS JUSTICE M. H. CLARK,
Judgment Date04 October 2012
Neutral Citation[2012] IEHC 488
CourtHigh Court
Date04 October 2012

[2012] IEHC 488

THE HIGH COURT

Record No. 1412 J.R./2008
A (SI) [Sudan] v Refugee Appeals Tribunal (Brennan) & Ors
JUDICIAL REVIEW
Between:/
S. I. A. (SUDAN)
APPLICANT
-AND-
THE REFUGEE APPEALS TRIBUNAL (OLIVE BRENNAN), THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL, IRELAND AND THE HUMAN RIGHTS COMMISSION
RESPONDENTS

RSC O.40 r14

A (MAM) v REFUGEE APPEALS TRIBUNAL UNREP COOKE 8.4.20112011 2 IR 729 2011 2011 IEHC 147

REFUGEE ACT 1997 S11

REFUGEE ACT 1997 S13(1)

UNHCR HANDBOOK PARA S205

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 7(1)

SECRETARY OF STATE v A H (SUDAN) 2007 3 WLR 832

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 7(2)

IMMIGRATION

Asylum

Application for leave to apply for judicial review - Asylum - Negative credibility findings - Persecution - Ethnicity - No documentation - Burden of establishing claim - Illogical finding of availability of internal relocation - No consideration of general conditions prevailing in relocation zone - Costs - Extension of time - Illiteracy - Translator required - Affidavit sworn in English - Admissibility - De bene esse - Whether decision sufficiently clear - Whether the merits of the case were such that it would be unfair not to consider the application - Whether internal relocation correctly considered - MAMA v Refugee Appeals Tribunal [2011] IEHC 147, [2011] 2 IR 729 and Secretary of State v AH (Sudan) [2007] UKHL 49, [2007] 3 WLR 832 considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), regs 7(1) and 7(2) - Rules of the Superior Courts 1986 (SI 15/1986), O 40, r 14 - Application refused (2008/1412JR - Clark J - 4/10/2012) [2012] IEHC 488

A(SI)(Sudan) v Refugee Appeals Tribunal

Facts: The applicant claimed to be from the Darfur Region of Sudan and sought leave for judicial review of an adverse decision of the Refugee Appeals Tribunal upholding a negative recommendation. Her credibility was found wanting because of her lack of knowledge of the Birqid Tribe. In addition to adverse credibility findings, the Tribunal member had held that it was not unreasonable for the applicant to have relocated elsewhere in Sudan. The applicant alleged that this finding was unreasonable.

Held by Clark J that internal relocation had no logical part to play in a decision on protection if the claim was rejected on credibility grounds. The decision-maker had to consult information on relocation in such circumstances. Without consulting such information, the availability of internal protection could not properly be considered. It was appropriate then to sever the reference to internal relocation and the Court would refuse the application for leave. It was appropriate to allow the applicant some costs.

1

The applicant who claims to be from the Darfur region of Sudan seeks leave to apply for judicial review of the decision of the Refugee Appeals Tribunal dated 30 th October 2008 which upheld the negative recommendation made by the Refugee Applications Commissioner in relation to her asylum claim. The hearing took place on 19 th July 2012. Mr Mark de Blacam SC with Mr Garry O'Halloran BL appeared for the applicant. Mr David Conlan Smyth BL appeared for the respondents. As the case centres on the applicant's credibility it is first necessary to outline her claim.

The Asylum Application
2

The persecution of the non-Arab tribes of Darfur by the Janjaweed militia supported by the Khartoum government is beyond question. The issue in this applicant's case was whether she is of Birqid ethnicity. In brief outline, the applicant applied for asylum at the office of the Refugee Applications Commissioner in August 2007 on the basis of her membership of the Bergud/Birqid 1 tribe of Western Darfur. She claimed persecution at the hands of the Janjaweed who, she said, attacked her village and killed her mother. She had no documentation of any kind.

3

The information she furnished in support of her claim was that she was an only child born in 1984 2, had never been to school and was illiterate. She said she grew up in the village of Sirba and her only occupation was helping her mother at home. She claimed that

1

1 Both spellings seem to be acceptable and in use.

2

2 Or 1982 as stated on another occasion.

her mother was killed in an attack on her village on 11 th November 2006 when their house was burned and she herself suffered burn injuries to her legs. That attack on the village of Sirba is well reported but the applicant was unable to furnish any specific details of the event. She says she escaped with others in a lorry to E1 Geneina but was unable to even hazard a guess as to the distance between Sirba and El Geneina. Although her description of the town/village of Sirba and its surrounding villages was given with a degree of fluidity, it did not inspire confidence of personal knowledge of detail.

4

Following her flight from Sirba, she says she stayed with her uncle's family until forced to leave by the threats of the security forces who were seeking out her uncle, who was a political activist. Her uncle did not live with his family during any of the time she claimed to live with them. She herself had no political affiliations or knowledge of any such political organisations. The security forces found their new address after two months and started attending there in search of her uncle. When they were unable to find him they assaulted members of the family including the applicant and threatened to kill the applicant and her aunt. Her uncle's friend then told them to prepare to travel to Port Sudan.

5

The family set off in a lorry from El Geneina to Port Sudan. Her uncle was waiting for them at Port Sudan. She expected that the family would leave together but she found herself alone in the ship at Port Sudan. Her travel was arranged by her uncle and a trafficker. She knew nothing of the arrangements and was provided with no documents. She changed to a cargo ship at an unknown place and a second trafficker then travelled with her. She didn't know how long she had been travelling, maybe less than one month.

6

The applicant's credibility was found wanting by the Commissioner because of her lack of knowledge of the Birqid tribe. It was not accepted that she was from that tribe and it was concluded, quite oddly, that she had not therefore demonstrated a Convention nexus.

7

In her Notice of Appeal it was submitted that regardless of her lack knowledge of the Birqid tribe, the Commissioner apparently accepted by her knowledge of the area that the applicant is from the area of Sirba and failed to consider any of the information which she gave about the area where she lived and the attacks on her village. It was argued that the interviewer failed to ask sufficient questions to clarify the issues subsequently raised. The Commissioner's conclusion that the applicant did not present as knowledgeable was argued to be derived from conjecture and speculation and it was argued that there had been a failure to consider the lack of education and opportunity for women in Darfur. Country of origin information (COI) was furnished including a UNHCR Position Paper on Sudanese Asylum Seekers from Darfur, dated February 2006. Previous RAT decisions were also furnished.

8

The applicant was represented by counsel at the oral appeal hearing and she had the assistance of an interpreter from Arabic to English. In her decision dated 30 th October 2008, the Tribunal Member approached her analysis of the claim...

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