A.W.S. v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 12 June 2007
• Neutral Citation: [2007] IEHC 276
• Court: High Court
• Docket Number: [No. 1255 JR/2005]
• Date: 12 June 2007

S (AW) v Refugee Appeals Tribunal (Zaidan)

JUDICIAL REVIEW

BETWEEN

A.W.S.

APPLICANT

AND

DES ZAIDAN ACTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

FIRST NOTICE PARTY

AND

IRELAND AND THE ATTORNEY GENERAL

SECOND NOTICE PARTY

[2007] IEHC 276

[No. 1255 JR/2005]

THE HIGH COURT

IMMIGRATION LAW

Asylum

Appeal - Decision of Refugee Appeals Tribunal- Refusal - Whether decision unreasonable or irrational - Weight of evidence - Alleged political persecution - Assessment of credibility - Country of origin information - Whether materials considered - Obligation to refer to evidence - Whether delay in making decision - Bujari v Minister for Justice (Unrep, Finlay Geoghegan J, 7/5/2003), Kramarenko v RAT [2004] IEHC 101, (Unrep, Finlay Geoghegan J, 2/4/2004), Memishi v RAT (Unrep, Peart J, 25/6/2003), Baby O v Minister for Justice [2002] 2 IR 169, Banzuzi v RAT [2007] IEHC 2, (Unrep, Feeney J, 8/1/2007), Imafu v Minister for Justice [2005] IEHC 416, (Unrep, Peart J, 9/12/2005), K(G) v Minister for Justice [2002] 2 IR 418 and Biti v RAT [2005] IEHC 13, (Unrep, Finlay Geoghegan J, 24/1/2005) considered - Leave to apply for judicial review refused (2005/1255JR - Dunne J - 12/6/2007) [2007] IEHC 276

S(AW) v RAT

Facts: The applicant from Togo sought leave to review a decision of the respondent refusing him asylum on political grounds by reason of the fact that the respondent had failed to consider all of the applicant’s evidence.

Held by Dunne J. that there had been no evidence adduced to show that the decision of the respondent was flawed. The applicant had not established substantial grounds to review the decision.

Reporter: E.F.

BUJARI v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP FINLAY-GEOGHEGAN 7.5.2003 2003/7/1414

KRAMARENKO v REFUGEE APPEALS TRIBUNAL & ORS 2005 4 IR 321 2004 2 ILRM 550 2004/26/6170

MEMISHI v REFUGEE APPEALS TRIBUNAL UNREP PEART 25.6.2003 2003/35/8424

O v MIN FOR JUSTICE & ORS [BABY O CASE] 2002 2 IR 169 2003 1 ILRM 241 2002/3/501

BANZUZI v REFUGEE APPEALS TRIBUNAL & ORS UNREP FEENEY 18.1.2007 2006/6/977 2007 IEHC 2

IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416

K (G) & ORS v MIN FOR JUSTICE & ORS 2002 2 IR 418 2002 1 ILRM 401

BITI v REFUGEE APPEALS TRIBUNAL (RYAN) & ORS UNREP FINLAY-GEOGHEGAN 24.1.2005 2005/4/827 2005 IEHC 13

Ms. Justice Dunne

1 The applicant in this case seeks leave to apply for judicial review in respect of a decision of the respondent herein dated the 7th October, 2005. The basis upon which leave is sought and that the decision of the respondent was unreasonable or irrational and in this context it is alleged that the respondent failed to have regard to the overall weight of the applicant's evidence and that there was a failure on the part of the respondent to consider all of the applicant's evidence and in particular to have regard to the explanations given by the applicant in respect of certain matters which were considered by the respondent.

2 In his affidavit sworn herein on 14th November, 2005 the applicant sets out details as to his background. He is a native of Togo, who arrived in the State on the 9th June, 2003. On his arrival he claimed asylum in the State and he completed the usual questionnaire and subsequently he attended at interview at the Office of Refugee Applications Commissioner (ORAC). His claim for refugee status was grounded on a fear of persecution by reason of his political opinions. In the questionnaire and interview at ORAC he described of his fear of persecution by Government Authorities in Togo by reason of his political opinions and political activity in organising opposition to the Government. In the course of his application he submitted certain documents to ORAC namely identity documents and newspaper articles which he had written.

3 At the hearing before the respondent further documents were submitted including an article published by the applicant on the internet and a copy of an article which appeared in the Clare Champion newspaper together with a photograph including the applicant in which the applicant and others were seen demonstrating about the abuse of human rights in Togo.

4 Following the hearing before the respondent, the recommendation of ORAC was affirmed and the applicant's appeal was dismissed. The applicant complains that the identity documents and the newspaper articles published by the applicant in Togo together with material written by the applicant, which was published on the internet and the article in the Clare Champion newspaper were not considered or properly considered by the respondent in the course of deciding his appeal. It is contended that the respondent did not consider or evaluate the cumulative weight significance and relevance of this evidence together with the other evidence of the applicant's political opinions, activities and experience which he gave during the oral appeal on the 16th May, 2005. He also complained that the respondent failed to consider country of origin information submitted to the respondent by the applicant.

5 Finally the applicant takes issue with the manner in which the respondent dealt with certain evidence in respect of a number of specific issues which arose during the course of the oral appeal namely:

6 1. The absence of any mention of a "Red List" in country of origin material and the explanation of the applicant to the effect that this term was an expression used locally in Togo. It is contended that although the respondent referred to this explanation in the decision he failed to consider the explanation in his decision and recommendation.

7 2. The applicant also complains of the manner in which evidence he had given of an assault because of his political opinions was dealt with. He explained why he did not mention that assault in his questionnaire or at interview before ORAC by explaining (a) that it was "more information that I had not taken into consideration before the hearing" and that it was not the reason why he left the country. The reason he left was because he was on the Red List. It is contended that the respondent failed to consider and evaluate this part of his explanation.

8 3. In relation to the assault referred to above he gave evidence that the perpetrators of that assault were motivated by his real or imputed political opinion and his explanation in regard to that was on the basis of what was actually said by the attackers during the assault and again it is contended that the respondent failed to take this into consideration and omitted it from his consideration.

9 4. He stated that he gave extensive evidence during the course of his oral hearing which indicated his political credentials, interests, knowledge and opinions which he contended was of such weight, preponderance and significance that it should not have been undermined by any difficulty in accepting his explanations for giving evidence at the oral appeal of a fact which he had not mentioned at a previous stage of the process.

10 It should be noted that in relation to the newspaper articles written by the applicant they were written by the applicant since he came to Ireland.

11 In essence the applicant challenges the adverse credibility findings of the respondent on the basis that the respondent failed to consider and evaluate the entirety of the applicant's evidence and its constituent parts and its cumulative effect and impact.

12 In the course of this hearing I had the benefit of helpful written submissions from the applicant and the respondent. In the course of oral submissions, counsel on behalf of the applicant dealt at length with the decision of the respondent. At p. 2 of the decision, the respondent noted in reference to the Red List as follows:

"According to the applicant he stopped canvassing because Habib's brother who is a soldier in the Presidential Guard"

13 'told us that our names were on the Red List or red notepad. I have known about the Red List for years. Many people on it have been killed.'

14 The applicant told the tribunal that when Habib's brother told him this, his immediate reaction was to flee. He spoke to his cousin who promised to help him."

15 Subsequently it was noted by the respondent at p. 5 of his decision as follows:-

"When asked by the presenting officer why he had not mentioned the assault in his questionnaire or in the interview notes he commented:"

16 'It is extra information. One more information I had not taken into consideration before the hearing.'

17 When asked by the presenting officer why not as this was the only time he claimed to have been assaulted, he replied:

18 'This is not the reason why I left the country. They are looking for me because I am on the Red List.'

19 The applicant was then asked how did he find out that he was on the Red List and he replied:

20 'Habib's brother was working with the Presidential Guard in Togo. He told Habib and Habib told me. …'

21 The applicant was then asked by the presenting officer how did Habib's brother come to see this Red List, he replied:

'He is a Presidential Guard.'

22 The applicant was then asked by the presenting officer could he think of any reason why Habib's brother would have access to this list and he replied:

23 'I don't know. What I know is that Habib's brother also knows people of higher ranks who may have had access to this information. He himself may not have seen it but others may have told him.'"

24 Complaint is made on behalf of the applicant that the applicant's explanation for the existence of a Red List was referred to in that part of the decision of the respondent which set out his conclusions. I think one can only say that this aspect of the matter was dealt with at length by the respondent at p. 8 of his decision....