A. D. -v- Refugee Appeals Tribunal & Anor, [2009] IEHC 326

Docket Number:2007 1728 JR
Party Name:A. D., Refugee Appeals Tribunal & Anor
Judge:McMahon J.
 
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THE HIGH COURT

JUDICIAL REVIEW2007 1728 JR

BETWEEN

  1. A. A. A. D.APPLICANTAND

REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENTSJUDGMENT delivered by Mr. Justice McMahon on the 17th day of July, 2009

The applicant was born in 1978. He is a member of the Bidoon ethnic group from Kuwait and has resided in Kuwait all his life. He came to Ireland on the 29th October, 2006, and applied for refugee status on the 27th November, 2006. A recommendation was issued by the Office of the Refugee Applications Commissioner (O.R.A.C.) that he be refused refugee status and he appealed to the Refugee Appeals Tribunal (hereinafter R.A.T.). By a decision issued on the 29th November, 2007, the R.A.T. refused his appeal.

The ethnic group of Bidoon has been severely discriminated against in Kuwait, and are denied basic rights. The applicant was unable to obtain Kuwaiti citizenship, and has no status there. He was arrested and imprisoned on two occasions.

The applicant now seeks leave to issue judicial review proceedings to challenge the decision of the R.A.T.

The applicant appears to be five days out of time in commencing these proceedings, but the reasons for such a delay are set out in an affidavit filed on his behalf. Counsel for the respondent, while not consenting to such an extension of time, did not strongly oppose such an extension in the circumstances of the case, saying that it was a matter for the court. In the circumstances and for the reasons set out in the supporting affidavit of the applicant's solicitor, I grant the extension of time to bring these proceedings.

The two primary legal issues agreed by the parties in this case are:-

(a) Whether a stateless person, who is outside his country of habitual residence and is not permitted re-entry to that country, qualifies as a "refugee" under s. 2 of the Refugee Act 1996 (as amended by the Immigration Act 2003); and

(b) Whether the R.A.T. erred in failing to consider whether the applicant, as a Bidoon from Kuwait who is without resident status in Kuwait, and so cannot return to Kuwait, is a refugee by reason of his membership of a particular group.

Section 5 of the Illegal Immigrants (Trafficking) Act 2000, indicates that in such a case the applicant must show "substantial grounds" to succeed in obtaining an order for leave. In Z. v. Minister for Justice, Equality and Law Reform [2002] 2 I.L.R.M. 215 at 222, it was held that leave should only be refused where the court is satisfied that the applicant's case could not succeed or where the grounds relied on are not reasonable or are "trivial or tenuous".

The R.A.T. made four core findings (see p. 23 of the decision of the 29th November, 2007):-

(i) That the applicant had not shown that he was refused Kuwaiti citizenship unfairly;

(ii) That whilst he was arrested for working illegally this was not improper given that he was not a Kuwaiti citizen;

(iii)That he cannot return to Kuwait - 'the appellant is not returnable to Kuwait, given that he has never obtained an Article 17 passport. There is no reasonable likelihood, or indeed even a remote possibility given the evidence outlined above, that the appellant would be accepted for return by the Kuwait authorities in the circumstances'. (At p. 25 of the R.A.T. decision);

(iv)That, whilst it was accepted that the applicant will be imprisoned if returned to Kuwait, he nevertheless cannot fear future imprisonment there because he cannot return to Kuwait.

In respect of the latter two findings, the R.A.T. identified the following legal issue:-

"A live issue…is whether it can be concluded that someone is at risk of persecution in their country of origin...

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