A.W. v Office of Refugee Applications Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 19 February 2013
• Neutral Citation: [2013] IEHC 71
• Court: High Court
• Date: 19 February 2013

[2013] IEHC 71

THE HIGH COURT

[No. 310 J.R./2012]

W (A) v Office of the Refugee Applications Cmsr & Ors

JUDICIAL REVIEW

BETWEEN

A.W.

APPLICANT

AND

THE OFFICE OF THE REFUGEE APPLICATIONS COMMISSIONER, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(6)

REFUGEE ACT 1996 S13(6)(A)

REFUGEE ACT 1996 S13(5)(A)

REFUGEE ACT 1996 S2

N (SU) [SOUTH AFRICA] v REFUGEE APPLICATIONS CMSR UNREP COOKE 30.3.2012 2012/33/9649 2012 IEHC 338

REFUGEE ACT 1996 S13(6)(E)

Z (V) v MIN FOR JUSTICE & ORS 2002 2 IR 135 2002 2 ILRM 215 2003/49/12190

D (A) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 27.1.2009 2009/11/2463 2009 IEHC 77

C (XL) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP COOKE 10.2.2010 2010/7/1498 2010 IEHC 148

SEN HE v MIN FOR JUSTICE UNREP HOGAN 7.10.2011 (EX TEMPORE)

REFUGEE ACT 1996 S13(6)(C)

S (MOO) v REFUGEE APPLICATIONS CMSR & MIN FOR JUSTICE UNREP BIRMINGHAM 8.12.2008 2008 IEHC 399

REFUGEE ACT 1996 S8

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5

M (WM) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 11.11.2009 2009/37/9251 2009 IEHC 492

Judicial Review - Refugee status - Refugee Appeals Tribunal - Oral hearing - Credibility - Fear of persecution - Risk of serious harm - Refugee Act 1996

Facts: The applicant, who was originally from Pakistan, arrived in Ireland on the 30th December 2009 making a claim for asylum. He claimed that if he was returned to his country of origin, he would be at risk of persecution or serious harm by the Taliban who had previously tried to extract money from him and made threats to his life. During consideration of the application, the Office of the Refugee Applications Commissioner discovered that the applicant possessed a visa for the United Kingdom. A transfer order was issued to compel him to pursue his asylum application there but he evaded transfer until expiration of his visa before once again applying for asylum in Ireland.

The application was eventually refused on the basis of negative credibility findings. The Refugee Applications Commissioner noted that the applicant claimed he did not flee Pakistan until 6 to 8 weeks after the Taliban had visited his home and issued threats to him despite the fact he had also said they had given him only a few days to organise the money to be extracted. He also claimed he returned to Pakistan briefly at the time of his daughter"s birth despite his passport indicating otherwise. It was also held that no reasonable explanation was offered to explain why the applicant would not consent to being transferred to the United Kingdom. Finally, it was decided that no Convention reason for the harm he feared if returned to Pakistan was offered. They felt he was not the subject of persecution on the grounds of race or religion but as a result of a criminal desire to extract money since he was a successful businessman, meaning he could not be regarded as a refugee. For this reason, the decision noted that section 13(6)(a) of the Refugee Act 1996 applied to this application meaning that where 'the application showed either no basis or a minimal basis for the contention that the application is a refugee', any appeal to the Refugee Appeals Tribunal would be determined in the absence of an oral hearing.

The applicant sought judicial review of section 13 of the Refugee Act 1996 as far as it deprived him of a right to an oral hearing on appeal.

Held by Mac Eochaidh J that there was no automatic right to an oral hearing before the Refugee Appeals Tribunal, but that one may be required in a case where there were negative credibility findings based on the demeanour of an applicant which underpinned the decision of refusal. In the present case, it was held that that the finding that the applicant could not be regarded as a refugee was separate from the negative credibility findings and could stand independently. There were also doubts about the necessity of an oral hearing considering the fact that the negative credibility findings were based upon the account given by the applicant, as opposed to any observations about his demeanour. On the basis that the applicant was unable to offer why an oral hearing would be of importance, it was held that written submissions would be sufficient to ensure the appeal was just and fair.

Leave to apply for judicial review refused.

1 This is an application for leave to seek judicial review where the central complaint advanced is that s. 13 of the Refugee Act 1996 (as amended) will unlawfully deprive the applicant of an oral hearing when he appeals to the Refugee Appeals Tribunal.

2 The applicant, a married man with children, is a national of Pakistan who claims persecution at the hands of the Taliban. He arrived in Ireland on 30 ^th December 2009 and almost immediately claimed asylum. He was interviewed by the Office of the Refugee Applications Commissioner. It became apparent that the applicant possessed a visa for the United Kingdom. When a transfer order was made requiring him to pursue his asylum application in the United Kingdom, this was challenged unsuccessfully in the High Court. Thereafter, the applicant evaded transfer to the UK. On the expiry of the time limits to effect that transfer, the applicant again sought asylum in Ireland.

3 The essential elements of the applicant's persecution/serious harm claim relate to an attempt by the Taliban to extract money from him accompanied by threats to his life if he did not comply.

4 Negative credibility findings were made against the applicant at first instance.

5 The Office of the Refugee Applications Commissioner ("ORAC") noted that the applicant did not leave Pakistan until six to eight weeks after the Taliban came to his house and threatened him. The evidence had been that the Taliban gave him a few days to organise money. The Office of the Refugee Applications Commissioner decided that "it is not credible that he would remain living in his home safely with his family for a further six to eight weeks if his life had been threatened by the Taliban. Therefore, this assertion that that the Taliban were threatening to kill him is not considered credible".

6 It was noted that the applicant's passport indicated that he left Pakistan on 4 ^th November 2008, remained in the UK for four months, and arrived back in Pakistan on 22 ^nd April. His daughter was born in January 2009 and the applicant claimed that he was present at her birth. The ORAC concluded as follows:

"The applicant's testimony was internally inconsistent with regard to his travel to the UK in 2008/2009. His testimony was inconsistent with documents that he submitted to this office ( i.e. copy passport pages). Therefore, the applicant's statements in this regard are not accepted. This raises serious and legitimate credibility concerns regarding the applicant's testimony as a whole."

7 The applicant has significant family connections in the United Kingdom and has visited the United Kingdom on two occasions. ORAC notes that he failedto give a reasonable explanation why he evaded transfer to the United Kingdom, having regard to his family connections in that country. The conclusions reached by ORAC on this matter are as follows:

"If the applicant was genuinely afraid for his safety in Pakistan it should not matter to him which safe country assesses his asylum claim. The applicant was supposed to be transferred to the UK under the Dublin II Regulation, a country where the applicant had travelled to before and where he has a sister and very supportive uncle living. The fact that the applicant purposefully avoided his transfer to the UK for a specific period of time suggests that he is not genuinely in fear of his life in Pakistan. This serves to undermine the credibility of the basis of his asylum claim."

8 In an exchange with ORAC officers as to what his intentions were when he left Pakistan for Ireland, he said, "I didn't know what asylum was but the agent told me to go here and claim asylum. If I had known, I would have got a business visa, but now I'm caught here so that's why I applied". The s. 13 report concludes on this element of the evidence as follows:

"The applicant maintains he would have preferred to have gotten a business visa for Ireland as opposed to seeking asylum here if he had 'known what asylum was'. He asserts he applied for asylum because he was 'caught here'. This suggests that his motivation for coming to and staying in Ireland is not predominantly about seeking protection. This serves to question the credibility of his asylum claim."

9 His inability, despite being a well travelled man, to state what countries he travelled through (after Turkey before reaching Ireland) were found to count against his credibility.

10 Another aspect of the credibility findings in this case by ORAC relate to discrepancies between his first and his second s. 11 interview. The reason there were two interviews is because he re-entered the asylum system following the unsuccessful Dublin II transfer attempt. In his second interview he said that the Taliban wanted the applicant to join them and that he had no wish so to do. The applicant did not mention the extortion of money during this second interview. In the questionnaire of 11 ^th January 2010, the applicant did not mention being asked to join the Taliban but did mention the extortion effort.

11 Apart from the credibility findings which are made against the applicant, ORAC decided that even if the core of the applicant's case or account was true, he had not established a Convention reason for the harm he suffered or for the harm he feared should he return to Pakistan, and therefore he was not a refugee. The...