A (A) v Refugee Appeals Tribunal & Minister for Justice, and Law Reform
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 25 November 2010 |
| Neutral Citation | [2010] IEHC 435 |
| Docket Number | [1039 JR/2008] |
| Court | High Court |
| Date | 25 November 2010 |
[2010] IEHC 435
THE HIGH COURT
BETWEEN
AND
A (FA) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (ZAIDAN) UNREP BIRMINGHAM 24.6.2008 2008/1/17 2008 IEHC 220
REFUGEE ACT 1996 S11A(3)
A (MM) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARK 12.5.2009 2009/2/257 2009 IEHC 217
EEC DIR 2005/85 ART 8(2)
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)
JANUZI & ORS v SECRETARY OF STATE FOR THE HOME DEPT 2006 2 AC 426 2006 2 WLR 397 2006 3 AER 305
H (A) & ORS (SUDAN) v SECRETARY OF STATE FOR THE HOME DEPT 2008 1 AC 678 2007 3 WLR 832 2008 4 AER 190
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3
E (M) v REFUGEE APPEALS TRIBUNAL & ORS UNREP BIRMINGHAM 2008/22/4746 2008 IEHC 192
PAMBA v REFUGEE APPEALS TRIBUNAL UNREP COOKE 19.5.2009 (EX TEMPORE)
REFUGEE ACT 1996 S16(16)
IMMIGRATION LAW
Leave
Judicial review - Delay - Extension of time - Three days outside time limit - Application for leave to apply - Whether reasonable explanation for lapse of time - Country of origin information - Additional information not brought to attention of respondents - Whether legal duty on first respondent to obtain, refer to or permit applicant to make submission on additional country of origin information after date of hearing but before making of decision - Whether first respondent failed to consider UNHCR paper - Whether first respondent failed to provide reasons for not applying UNHCR paper - FAA v Refugee Appeals Tribunal [2008] IEHC 220 (Unrep, Birmingham J, 24/6/2008) and MMA v Refugee Appeals Tribunal [2009] IEHC 217 (Unrep, Clark J, 12/5/2009) distinguished - Jansusi v Home Secretary [2006] 2 AC 46; AH (Sudan) v Home Secretary [2008] 1 AC 678 considered - European Communities (Eligibility for Protection) Regulations 2006 (SI518/2006), reg 5 - Council Directive 2005/85/EC - Leave granted (2008/1039JR - MacMenamin J - 25/11/2010) [2010] IEHC 435
A(A) v Refugee Appeals Tribunal
Facts: The applicant sought leave for judicial review of a decision of the Refugee Appeals Tribunal to affirm the refusal of his application to be declared a refugee. The applicant was of Sudanese nationality and maintained that he was at risk of persecution if returned to that country by virtue of his membership of the Tama tribe and that the person who had enslaved him would pursue him. The Refugee Applications Commissioner had found him to lack credibility. A number of documents had been submitted to the Tribunal including country of origin information and specifically a UNHCR position paper. It was alleged that the Tribunal Member had failed to consider the position paper and had failed to provide reasons for not allying the UNHCR paper. The question arose as to whether the Tribunal Member had arguably acted unreasonably and the obligations on the Tribunal Member pursuant to the Procedures Directive 2005/85/EC and Regulation 5, European Communities (Eligibility for Protection) Regulations, 2006 (SI 518/2006).
Held by MacMenamin J. that the burden of proof rested on the applicant in the appeal. It was arguable that the obligations on the Tribunal Member went further than a mere consideration of the evidence of the applicant, thus warranting leave on this ground. The basis for the conclusions of the respondent was sufficiently clear. The obligation of a Tribunal member when faced with the selection of country of origin information was to make an assessment overall of the content of that information. The obligation to give reasons did not involve analyzing each and every piece of information. Once the applicant was aware of the reason why his case was being rejected, the duty to give reasons was satisfied. The Court was not persuaded that the applicant established reasonable grounds that there was a failure to consider the UNHCR paper or a failure to provide reasons for not applying its contents. The Court would refuse leave on this ground also.
Reporter: E.F.
The applicant seeks leave to apply for judicial review of a decision of the Refugee Appeals Tribunal ("the Tribunal") to affirm the recommendation of the Refugee Applications Commissioner ("the Commissioner") that he should not be declared a refugee.
The first issue which falls for consideration is the elapse of time. The impugned decision was communicated to the applicant by letter dated 22nd August, 2008. The time limit for challenging decisions by way of judicial review has been identified in the Statute as being fourteen days. The within proceedings were issued on 10th September, 2008. The applicant is therefore out of time by no more than three days. An extension of time is nonetheless required. In an affidavit sworn on 10th December, 2008, the applicant's solicitor, Mr. Michael Crowe avers that he was contacted by the applicant on 26th August, 2008. He was asked whether a challenge to the Tribunal's decision was merited. Mr. Crowe attributes such delay as occurred to the fact that counsel was not in a position to look at the decision immediately upon receiving it by reason of the legal vacation. He states that a number of other matters had to be clarified. The elapse of time is in itself very short. The applicant is only days out of time. I bear in mind, also, the merits of the case which are considered later. I consider that a reasonable explanation has been given for the elapse of time and that as the judgment indicates there are merits to the case which would justify such extension.
The applicant is of Sudanese nationality. He maintains he is at risk of persecution if returned to that country by virtue of his membership of the Tama tribe. This is a non-Arab ethnic group. He also claims that a man who he alleges enslaved him would pursue him were he to return.
According to his narrative the applicant was born on 1st June, 1987 at Hashaba, Darfur, western Sudan. He is a single man with little education. He cannot read or write. He states that he does not know where his parents or any member of his family can be located. He informed the Tribunal that in 1992, at the age of five, he was brought to Alaou, a village in eastern Sudan. He was there made to work as a shepherd for the owner of a large holding. He claims that this man was powerful and a former politician. He states that his position was tantamount to that of being a slave; that he was beaten regularly and received little income.
In or about the year 2004, he was informed he was from Darfur. The applicant states he complained about his situation to the police who took no action. According to the applicant he ran away in May 2005. A sympathetic lorry driver is said to have agreed to take him to Libya. There he worked on a farm for approximately one year before travelling to Ireland. He arrived in this State on 13th June, 2006 and applied for asylum.
In a decision dated 24th August, 2006, the Refugee Applications Commissioner ("RAC") issued a negative recommendation. The RAC noted that there was country of origin information to the effect that mechanisms had been put in place in Sudan since the early 1990s to free slaves and that group repatriations to places of origin had taken place. The decision also cited discrepancies in the applicant's account relating to the nature of the complaints made to the police; the applicant's inability to elaborate on his master's political status; or even his existence. The RAC also concluded that the applicant's account as to why he did not escape earlier was lacking in credibility.
The applicant's oral hearing was heard by the Refugee Appeals Tribunal on 30th June, 2008. In advance of the hearing, an independent language analysis was carried out on the applicant's speech patterns. This report concluded that the applicant spoke Arabic to the level of a mother tongue speaker in a variety found "with certainty" in the western part of Sudan. I should note in passing that I do not understand the report to preclude the possibility that such language patterns were to be found elsewhere in Sudan. Thus I find the manner in which the Tribunal treated the language analysis somewhat puzzling. On the basis of the information provided the Tribunal opined that the analysis raised a question mark over the applicant's whereabouts between 1992 and 2005. The Tribunal observed that it was reasonable to assume, without engaging in conjecture, that thirteen years of exposure to dialect in the eastern part of Sudan would have manifested and superimposed itself over the first five years of the applicant's formative life. I am unsure as to the evidential basis for these observations. But this is not the gravamen of the applicant's case.
A number of documents were submitted to the Tribunal. These included a letter from a Dr. Abdullah Osman El-Tom of the Department of Anthropology, National University of Ireland, Maynooth, who comes from Darfur. Dr. El-Tom met with the applicant and concluded with absolute certainty that the applicant was of Darfur origin. He also made a number of general observations on the prevailing conditions in Sudan and referred to what he phrased as the "ugly truth" that slavery was deeply embedded in Sudanese culture, particularly among the dominant elites who subscribed to Arab descent. Dr. El-Tom referred also to the "obstinate appearance of slavery disguised under domestic labour". A second set of documents was submitted to the Tribunal said to emanate from bodies named "The Darfur Solidarity Group" and "The World Union of Tama Tribes". These were also to the effect that the applicant was a member of the Tama...
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