Y. -v- Refugee Appeals Tribunal & Anor, [2007] IEHC 274 (2007)

Docket Number:2006 199 JR
Party Name:Y., Refugee Appeals Tribunal & Anor
Judge:Peart J. / Hedigan J.
 
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JUDGMENT BY: Peart J.

[2007] IEHC 274THE HIGH COURT Record Number : 2006 No. 199 JR

Between:H.Y.ApplicantAnd

The Refugee Appeals Tribunal and the Minister for Justice,

Equality and Law ReformRespondents

Judgment of Mr Justice Michael Peart delivered on the 31st day of July 2007:

The applicant is a Palestinian from Gaza who arrived here on the 25th May 2004 and applied for asylum. His application form states that he left his country of origin on the 3rd March 2004, and that he made his way to this country via Jordan, and Holland.

The Refugee Applications Commissioner in due course recommended that he should not be declared to be a refugee. From that recommendation the application appealed to the Refugee Appeals Tribunal. The Decision by that body, affirming the recommendation of the RAC is dated 26th January 2006, the appeal hearing itself having been heard on the 29th June 2005.

The Tribunal Member found aspects of the applicant's story to be implausible and not credible. It is clear that the Tribunal member was satisfied that circumstances existed in Palestine whereby conditions were, as stated therein "difficult for the people of Palestine", but for a well-founded fear of persecution to be found to exist for the applicant, it was necessary for the Tribunal Member to find the personal story of the applicant to be credible. Without that personal credibility, the Tribunal Member could not find that the applicant had a well-founded fear, even though the story if true fitted into available country of origin information and could otherwise amount to a well-founded fear of persecution.

The applicant submits that the process by which the Tribunal Member reached an adverse credibility finding is unsatisfactory.

To understand the issue more fully, it is necessary to set out what the applicant states is the basis of his well-founded fear, and then set out the various matters which the Tribunal Member found to be implausible or not credible, and thereafter to examine whether from those matters it was correct for the Tribunal member to decide that the lack of credibility in relation to these particular matters was sufficient to conclude that the story overall was not credible and that accordingly there was not established to be a well-founded fear of persecution.

Background facts:

He was born in 1973 and lived in Gaza until his arrival in this country. His mother as well as his younger sister and brother remain living in Gaza. In the Questionnaire which he completed for his application he stated that he claimed asylum on political grounds. He stated also that he was a member of 'Fatah' and that he is wanted by Israeli occupation forces, and that his name is in fact on a list of persons wanted by Israel and whom the Palestinian authorities have agreed to hand over. I will come to that in more detail in due course. He goes on to say that in the past he has been imprisoned and tortured, and that at the relevant time the Palestinian authority and the Israel government were co-operating at the highest level so that he would have been handed over if he had not escaped, and he fears now that if returned he will still be detained by the Palestinian authorities so that he can be handed over, and by the Israeli government when handed over to those forces, since his name is still on the list referred to.

He stated in his application form that he was tortured by the Israelis from 1998 until 2000 while he was detained in an Israeli detention unit in Beersheba. He stated that at that time his brother was still detained by them. At his interview he stated that he himself was released in 2000, and that following his release he resumed his political activities with 'Fatah'. This activity involved meetings and throwing stones at the Israeli in order to defend his country. He states at interview also that the Israelis had arrived at his home and expelled his family from their house and knocked it down. He stated also that his father had been killed by the Israelis in 1997.

At his first interview on the 15th November 2004 he stated that in 2004 Israel asked 'Fatah' to expel from Gaza a list of people, and that as a result those on the list received orders from 'Fatah' to leave Gaza since Israel was intent on arresting/killing them. He says that they accordingly left Gaza and moved to Nablus and thereafter entered Jordan using false permits. As stated already he left Gaza on the 3rd March 2004.

He and the others with him stayed in Jordan for two months and 22 days while they tried to find someone who would smuggle them out of Jordan and into Europe. He appears to have found such a person, and he states at interview that this person asked him if he would like to travel to Ireland, and that when he found out that Ireland was in Europe he indicated that he did so wish. He stated at interview that this smuggler came to Ireland with him and that on arrival here he took $5000 from him and told him that he was in Ireland, and told him to apply for asylum. That was on the 25th May 2004. He then stated that he found two Sudanese nationals at the airport who told him to take a bus to the city centre and that someone would tell him where to go. He stated then that he found three people who were speaking Arabic and that they showed him the building and that he then made his application for asylum. The smuggler, according to his story, kept the false passport on which he had travelled and also his flight ticket.

He was able to state at his interview that he had been arrested by the Israelis forces on the 17th April 1998 while attending at a meeting in Gaza. He stated that when questioned he was told that it was thought that he and the others were planning suicide attacks in Israel. This was denied and he stated that it was a meeting only to plan putting up posters and distribute leaflets and to arrange demonstrations. He stated that after some questioning had taken place an order was given that he be beaten and that he was beaten with a metal bar, and the butt of a gun and that he was also hit with what he called "a long needle" after which he felt nothing and almost lost consciousness. He then found himself in jail. This detention remained until 2000, and he was unable to say which month in 2000 he was released. At his second interview on the 5th January 2005 he stated that his release had been arranged through the Red Cross.

He resumed his political activities after he was released in 2000 as I have already stated. He was not subsequently detained by the Israeli authorities after his release, yet he stated that it was in 2004 that the Israelis had submitted a list of names, including his, whom they wanted the Palestinian authority to hand over. He was asked at interview how he became aware that his name was on this list, and he replied:

"When the list was submitted to the Palestinian authorities, it was passed on to Khalid Al Nabi, assistant to the former Palestinian leader Yasser Arafat. Khalid Nabi issued an order for all the people on the list to leave Gaza."

He was also asked how he had moved from Gaza to Nablus and he replied that they "were led secretly by a Palestinian ambulance from Gaza to Nablus".

He went on to state that they had been stopped at the checkpoints and "they checked the ambulance and we were checked as well. We had forged documents with us."

He was asked at interview if he read any newspapers when he was in Gaza and he named three such newspapers.

He repeated his fear that if returned to Palestine he would be arrested either by the Israelis or by the Palestinian authority who would hand him over to the Israelis. He added that the Israelis have no mercy or humanity and that once a person gets into one of the prisons there "you either come out dead or they release you. But there are people dying in the Israeli prisons and nobody knows about them".

Following that interview the application was considered by the Refugee Appeals Commissioner and a recommendation against refugee status was made. The report under s. 13(1) of the Refugee Act 1996 sets out all the relevant facts disclosed in the Questionnaire and interviews. What are described as "a number of credibility issues" are identified.

One such issue related to whether the Oslo accord was still in operation in 1998 when the applicant was arrested, but this Court has been told without contradiction from the respondents that at the appeal this issue fell away following submissions made in that regard and it is not referred to in the Decision of the Tribunal Member.

A second matter referred to in this Report in this regard is that it was considered "highly unlikely that the Palestinian authorities would have expelled individuals simply on the basis that they were named on a list by the Israelis, particularly given the extremely poor relations between the Palestinian Authority and Israel at the time."

A third matter referred to is the applicant's account of his the escape from Gaza to Nablus on the West Bank. The report states that the applicant's account of leaving Gaza is lacking in credibility, and that a Palestinian ambulance going to Nablus on the West Bank would have had to pass through Israel, and that even with the assistance of forged documents it is not credible that the applicant would have been able to cross "one of the world's most heavily militarised borders, which is surrounded by a fence. Reference is made also to a U.S. State Department report on Israel and the Occupied Territories for 2004 wherein it is stated: "Even prior to the Intifada it was difficult for Palestinians to obtain permits to visit Israel".

Fourthly doubt was cast upon a Palestinian identity card produced by the applicant since it is said not to be of the standard one would expect of an official identity card and is poorly laminated, and that it would be made in a way that was difficult to forge, whereas that produced by the applicant would be of a type which was very easy to copy...

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