A v Refugee Appeals Tribunal and Another
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE MCCARTHY |
| Judgment Date | 04 October 2010 |
| Neutral Citation | [2010] IEHC 344 |
| Court | High Court |
| Date | 04 October 2010 |
[2010] IEHC 344
THE HIGH COURT
REFUGEE ACT 1996 S13(6)
IMAFU v MIN FOR JUSTICE & ORS UNREP CLARKE 27.5.2005 2005/31/6380 2005 IEHC 182
L (LC) v REFUGEE APPEALS TRIBUNAL UNREP CLARK 21.1.2009 2009/32/7857 2009 IEHC 26
M v O'GORMAN UNREP CLARKE 11.11.2005 2005/40/8300 2005 IEHC 363
REFUGEE ACT 1996 S11
REFUGEE ACT 1996 S16(16)(A)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5
IN RE ARTICLE 26 OF CONSTITUTION & ILLEGAL (IMMIGRANTS) TRAFFICKING BILL 1999 2000 2 IR 360
T v REFUGEE APPEALS TRIBUNAL UNREP PEART 27.7.2007 2007/57/12325 2007 IEHC 287
ZT v MJELR UNREP MCCARTHY 31.7.2009 2009/54/13786 2009 IEHC 509
IMAFU v MIN FOR JUSTICE UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416
GK v MIN JUSTICE & ORS 2002 2 IR 418
S (AW) v REFUGEE APPEALS TRIBUNAL UNREP DUNNE 12.6.2007 2007/54/11567 2007 IEHC 276
N (IT) v REFUGEE APPEALS TRIBUNAL UNREP CLARK 13.10.2009 2009/41/10317 2009 IEHC 434
N v RAT UNREP O'LEARY 21.12.2005 2005/44/9167 2005 IEHC 441
EUROPEAN COMMUNITIES ELIGIBILITY FOR PROTECTION REGS 2006 SI /518 S5(2)
IMMIGRATION
Asylum
Fear of persecution - Previous UK asylum application - Non-oral appeal - Presumption that applicant not refugee - Onus of proof - Credibility - Nationality - Inconsistencies in account - Future risk to applicant - Minor applicant - Substantial grounds - Country of Origin information not specifically referred to - Whether new explanations considered on appeal - Whether rational and substantial basis for finding lack of credibility - Whether grounds reasonable, arguable and weighty - Whether breach of fair procedures - Whether all relevant documentation considered - Whether applicant of sufficient age to describe experiences - Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360; T v Refugee Appeals Tribunal (Unrep, HC, Peart J, 27/7/2007); T(Z) v Minister for Justice, Equality and Law Reform [2009] IEHC 509; S v Refugee Appeals Tribunal [2007] IEHC 276; N v Refugee Appeals Tribunal [2009] IEHC 434 and N v Refugee Appeals Tribunal [2005] IEHC 441 followed - I v Minister for Justice, Equality and Law Reform [2005] IEHC 182; L v Refugee Appeals Tribunal [2009] IEHC 26; M v Refugee Appeals Tribunal [2005] IEHC 363; P v Minister for Justice, Equality and Law Reform (Unrep, HC, Cooke J, 19/5/2009); I v Refugee Appeals Tribunal (Unrep, HC, Peart J, 9/12/2005); K(G) v Minister for Justice, Equality and Law Reform [2002] 2 IR 418; L v Minister for Justice, Equality and Law Reform (Unrep, HC, Clark, 21/1/2009); I v Refugee Appeals Tribunal [2009] IEHC 94 and I v Minister for Justice, Equality and Law Reform [2005] IEHC 416 considered - Refugee Act 1996 (No 17), ss 11(a)(1)(b), 13(6) and 16(16)(a) - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 5(2) - Leave refused (2007/1645JR - McCarthy J - 4/10/2010) [2010] IEHC 344
A v Refugee Appeals Tribunal
Facts: The applicant sought leave for judicial review of a decision of the first respondent. The applicant claimed to be a Somali national seeking refugee status on the basis of a fear of persecution by reason of his race. He had made a previous asylum application in the UK and the account previously given there differed to the account offered in this jurisdiction. It was asserted that inter alia the Refugee Appeals Tribunal decision was deficient as six redacted decisions were submitted but not referred to, country of origin information was not considered nor was the possible risk to the future of the applicant considered, principles that pertained to an application brought by a minor child were not referred to, child specific documents were not referred it and the respondent had failed to have regard to a submitted medical report. The applicant submitted that the respondent had acted in breach of fair procedures in the manner with which the account of the applicant had been disbelieved. The issue arose as to whether the applicant had established substantial grounds for considering that the decision of the Tribunal member be quashed.
Held by McCarthy J. that the Court was not satisfied that substantial grounds had been shown and would refuse leave. The need to reference previous decisions was not required as they were of no assistance on credibility. It was quite clear that the applicant was a minor when he arrived in Ireland. The decision of the Tribunal was dated one day before the 18th birthday of the applicant. It was clear that the Tribunal did not feel that the applicant had a credible fear of persecution. The submitted medical report was of no probative value.
Reporter: E.F.
This is an application for leave to apply for judicial review of the decision of the Refugee Appeals Tribunal (RAT), dated 10 September 2007 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. The hearing took place on 28 July 2009. Ms. Agnes McKenzie B.L. appeared for the applicant and Mr. Daniel Donnelly B.L. appeared for the respondent.
The applicant claims to be a Somali national seeking refugee status on the basis of a stated fear of persecution by reasons of his race. He arrived in the State in November 2005. He made a previous asylum application in the UK which was rejected in 2005 and again on appeal in 2006. ORAC issued a negative recommendation in July 2006 and made s.13(6) findings due to this prior UK application. Accordingly, his appeal to the RAT was confined to a non-oral appeal.
The applicant claims that he was born on 11 September 1989 and lived in Somalia. He says that his father was a farmer and member of the Jareer/Bantu clan. When civil war started in Somalia, life became very dangerous for the Bantu as they did not belong to any dominant clan. He alleges that in 1992, the Hawaadle militia came to his house and shot his father and brother. His present version of events is that in 2001, his home was attacked again and he was held for ransom in a camp for 47 days. During this time, a ransom note was sent to his mother demanding that she surrender her land. In captivity, the applicant claims to have been tortured and made to watch the beheading and shooting of other prisoners whose families did not pay ransoms. He escaped with the assistance of a friend and was driven to Addis Ababa in Ethiopia first, before settling in Sudan for three years.
Following the outbreak of war in Sudan, the applicant made his way to Tripoli, Libya and was arrested there in 2004, but subsequently released. In 2005, he boarded a small boat with approximately 26 other Somalis heading in the direction of Europe. The boat ran out of fuel and drifted for about 10 days before being rescued by a Danish vessel which landed at a U.K. port in June of that year. He applied for asylum in the U.K.
The account the applicant gave in the U.K. contained a number of inconsistencies with the account he offered in this jurisdiction. In the U.K., these inconsistencies included the fact that he gave his date of birth as being the 11 April 1986, not 11 September 1989. He claimed that he was advised by other Somalis to say that he was older or he would be separated from them and that if the U.K. authorities knew he was a minor he would be sent to a camp or fostered to a family.
The applicant explains that further inconsistencies in his U.K. asylum application arose because he gave the U.K. authorities an altered version of events on the advice of fellow Somali refugees. He claims that he was confused and traumatised by the ordeal and was interviewed by the U.K. authorities before disembarking from the rescue ship. He suffered headaches due to injuries received from blows to the head by a rifle-end when in captivity in Somalia. He persisted in this account through to appeal stage as he was afraid he would not be believed if he told the truth.
On 25 July 2006, ORAC recommended that the applicant should not be declared a refugee following two interviews with the applicant. ORAC referred to the discrepancies in the accounts he presented in the U.K. and Ireland, noting that as the applicant had been accepted as a minor, it was not unreasonable to believe he might be persuaded by his fellow countrymen to follow a certain line in his claim in the U.K. However, the Commissioner took the view that the fact that he had legal representation made it difficult to believe that he would maintain an incorrect version throughout the appeal process. The Commissioner further noted that it was illogical that a band of armed men would hold a boy from an impoverished background to ransom as his mother eked out a living washing clothes and working for neighbours for food. The authorised officer stated "[h]ad one of the dominant clans wanted his family's home, then, presumably, all they had to do was take it." The application for refugee status was therefore rejected and s.13 (6)(d) finding was made, namely that the applicant had a lodged a prior application for asylum in another state party to the Geneva Convention.
On 10 September 2007, the RAT upheld the recommendation of the Commissioner. In addressing the applicant's nationality, the Tribunal Member noted the difficulties in establishing that the applicant is in a fact a Somali national and that "the Tribunal has had to rely on general information questions to attempt to establish the Applicant's nationality."
The rejection of the application was based on credibility concerns. The...
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