A v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Mr Justice O'Keeffe
• Judgment Date: 20 November 2012
• Neutral Citation: [2012] IEHC 480
• Court: High Court
• Date: 20 November 2012

[2012] IEHC 480

THE HIGH COURT

Record No. 489 JR/2011

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

JUDICIAL REVIEW

BETWEEN

J.N.A.

APPLICANT

-and-

THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S13

C (QF) & ORS v REFUGEE APPEALS TRIBUNAL & ORS UNREP COOKE 12.1.2012 2012 IEHC 4

A (MAM) v REFUGEE APPEALS TRIBUNAL & ORS UNREP 2011 2 IR 729

M (SA) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP CLARK 13.10.2009 2009/2/283 2009 IEHC 435

H (M)(AFGHANISTAN) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2009 EWCA CIV 527

H (ZM)[SOMALIA] v MIN FOR JUSTICE UNREP COOKE 24.5.2012 2012 IEHC 221

MURKHTAR v MIN FOR JUSTICE UNREP CROSS 23.3.2012 2012 IEHC 123

IMMIGRATION LAW

Asylum

Judicial review of decisions of tribunal - Certiorari - Alleged failure of tribunal to analyse risk of future persecution - Alleged material errors of fact and unfair findings in decision - Alleged failure to give due regard to documents submitted by applicant - Negative credibility findings - Untruths on form and in interview - Necessity for assessment of future risk of persecution even where doubts regarding credibility - QFC v Refugee Appeals Tribunal [2012] IEHC 4, (Unrep, Cooke J, 12/1/2012); A (MAM) v Refugee Appeals Tribunal [2011] IEHC 147, (Unrep, Cooke J, 8/4/2011); MSA v Refugee Appeals Tribunal [2009] IEHC 435, (Unrep, Clarke J, 13/10/2009) and Murkhtar v Minister for Justice, Equality and Law Reform [2012] IEHC 123, (Unrep, Cross J, 23/3/2012) considered - Relief granted (2011/489JR - O'Keeffe J - 20/11/2012) [2012] IEHC 480

A (JN) v Refugee Appeals Tribunal

Facts: The applicant was originally from Somalia. He applied for asylum upon entering Ireland on 5 ^th January 2005 on the basis that he was a member of the Reer Hamar clan and was at risk of serious harm at the hands of more dominant clan groups in the country. The applicant initially claimed he had never been to any other country apart from one unknown country on his way to Ireland and that he had never claimed refugee status in another country. Following investigations, the applicant admitted he had actually left Somalia in 2003 and had applied for asylum status in the United Kingdom and the Netherlands previously. His application before the Refugee Applications Commissioner and the Refugee Appeals Tribunal was rejected on the basis of a lack of credibility and for his production of false evidence. That decision was the subject of judicial review proceedings that led to the case being remitted back to the Tribunal. They again rejected his appeal and so he sought leave to apply for an order of certiorari which was granted.

The basis of the applicant”s application was that the Tribunal had failed to carry out a satisfactory assessment of future risk or to give due weight to relevant documents. He contended that the Tribunal did not dispute he was from Somalia and that he was a member of the Reer Hamar clan. He also contended that substantial country of origin information had been submitted on his behalf which he felt adequately outlined the risk of serious harm he would be subjected to if deported and should have been used as the basis of a future assessment of risk despite the findings of adverse credibility. The fact the documents were not considered in a future assessment of risk is related to his claim that the Tribunal failed to give due weight to relevant documents. Of note were the documents acquired from the Red Cross which contained messages from his family members which clearly outlined how the state was failing to protect them from persecution.

Held by O”Keeffe J that it was clear that the Tribunal”s refusal was based on the applicant”s credibility in his conduct during proceedings especially at the initial stages, something which was accepted by him. Despite this, it was held that there was an obligation for there to be a future assessment of risk where the applicant”s dishonesty did not go to the core of the claim.

In the present case, O”Keeffe J condemned the applicant”s dishonesty but found that this only related to his passage to Ireland and previous asylum claims. As such, an assessment should have been carried out to assess the risk of serious harm he would be subjected to if deported. In terms of the documents submitted, the respondent had contended that they were considered but no weight was attached to them because documents from Somalia should be viewed with scepticism due to the widespread dysfunction in the state. It was held that the documents were not from Somalia but the Red Cross and it was unreasonable to give no weight to them whatsoever when the contents were considered.

Relief sought granted.

Background

1 The applicant in this case is a national of Somalia. His date of birth is given on his ASY1 form as 13 ^th August 1989. He claims to be a member of the Reer Hamar clan, a minority group within Somalia whose members are vulnerable to attacks and serious human rights violations by dominant clan groups.

2 The applicant arrived in Ireland on 5 ^th January, 2005. In his interview with the Office of the Refugee Applications Commissioner (ORAC) the applicant initially claimed to have travelled to Ireland by air via one unknown country. He claimed to have never left Somalia before January 2005. He also stated that he had never applied for asylum in any other country apart from Ireland. When it was put to him that there was evidence of him having been in the United Kingdom in 2004 the applicant admitted that this was correct. The applicant acknowledged, contrary to what he had previously stated, that he left Somalia in 2003 and had previously applied for asylum in the UK and the Netherlands. He denies that he ever applied for asylum in Italy.

3 In June, 2005 the applicant was refused refugee status by the ORAC who found that the applicant had adduced "manifestly false evidence" and that his testimony was "fundamentally lacking in credibility". The Refugee Appeals Tribunal (the Tribunal) upheld this finding in June, 2008. That decision was the subject of judicial review proceedings and leave was granted by McGovern J. on 10 ^th September, 2010. The appeal was remitted back to the Tribunal who again refused the applicant's appeal on 27 ^th May, 2011. Leave to apply for an order of certiorariwas granted by Cooke J. on 18 ^th April, 2012.

The Refugee Appeals Tribunal decision of 27 ^th May 2011

4 The Tribunal agreed with the finding in the ORAC s.13 report that the applicant is "fundamentally lacking in candour and credibility". The Tribunal report states that "no convincing argument has been forwarded that the applicant had not adduced manifestly false evidence in support of his application."

5 The Tribunal report says that despite the alleged persecution, the applicant's family remain in Somalia, albeit relocated, and that "this element further objectively undermines his claimed subjective fear of persecution."

6 The applicant's failure to await the result of asylum applications in other EU states also damaged the applicant's credibility.

7 The Tribunal stated it afforded no weight in the circumstances to "other documents personal to the appellant presented by him".

8 The Tribunal concluded that the applicant's claim was "lacking in credibility, particularly in relation to the core elements of the claim."

The Applicant's Submissions

9 The applicant is seeking an order of certiorari quashing the decision of the first named respondent.

10 The applicant's submissions can be divided into three main grounds and these are briefly summarised below:

i. Failure of the Tribunal to analyse the risk of future persecution

The applicant contends that the Tribunal erred in law by failing to make an assessment of future risk of persecution faced by the applicant on return to Somalia. It was submitted that the Tribunal took no issue with the applicant's nationality as Somali and made no finding that he was not from the Reer Hamar clan. The applicant had submitted a large amount of country of origin information detailing the persecution suffered by the Reer Hamaar clan. The applicant had also submitted correspondence from the Red Cross which was obtained by the HSE. The contents of these messages are discussed in greater detail below. The applicant relies on the decisions in C. v. Refugee Appeals Tribunal [2012] IEHC 4 and A. v. RAT & Ors [2011] IEHC 147 as authority for the requirement of the decision-maker to carry out an assessment of future risk, irrespective of an adverse credibility finding.

ii Material errors of fact and unfair findings in the RAT decision

The applicant claims that the Tribunal made a number of material errors of fact which are grounds for granting the relief sought. The primary issue relates to the Tribunal's conclusion that the applicant's claim is undermined because his family remain in Somalia. The Tribunal report states that "the applicant's family members remain in Somalia, albeit internally relocated. The Tribunal finds that this element further objectively undermines his claimed subjective fear of persecution". The applicant describes this as a gross error of fact. He alleges that his family have suffered ongoing persecution in Somalia since he left and that his father has been murdered and his sister kidnapped. It is submitted that the family have not voluntarily relocated within Somalia but rather they have been forced out of their home by a dominant clan group. Rather than undermining his claim, it is submitted that these factors support his claimed fear...