W (E. A.) v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Court: High Court
• Judge: MR JUSTICE HEDIGAN
• Judgment Date: 04 November 2008
• Neutral Citation: [2008] IEHC 343
• Date: 04 November 2008

[2008] IEHC 343

THE HIGH COURT

[673 JR/2006]

W (E A) v Refugee Appeals Tribunal & Min for Justice

BETWEEN

E. A. W.

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S16(8)

OLATUNJI v REFUGEE APPEALS TRIBUNAL (TAIT) & MIN FOR JUSTICE UNREP HIGH FINLAY-GEOGHEGAN 7.4.2006 2006/46/9904

IMMIGRATION ACT 1999 S11(1)(k)(i)

REFUGEE ACT 1996 S11(2)

REFUGEE ACT 1996 S11(3)

REFUGEE ACT 1996 S11(4)

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S16(8)

OGUNNIYI (A MINOR) & ORS v MIN FOR JUSTICE UNREP HIGH HEDIGAN 9.10.2008 2008 IEHC 307

O'KEEFFE v BORD PLEANÁLA 1993 1 IR 39

Abstract:

Immigration - Asylum - Appeal - Refugee Appeals Tribunal - Fair procedures - Internal relocation - Whether duty to forewarn applicants prior to hearing that issue of internal relocation may be considered at hearing - Country of origin information - Whether duty to notify applicants prior to hearing that reliance may be made had on specific country of origin information - Refugee Act 1996, section 16(8)

Facts: the applicant had been granted leave to apply for judicial review of the decision of the respondent refusing to revoke the recommendation of the Refugee Applications Commissioner that he be refused asylum in the State. He contended that the respondent had breached fair procedures in holding that internal relocation was available to the applicant within his own country without warning the applicant prior to the hearing that that issue would be considered. He also contended that he had breached section 16(8) of the Refugee Act 1996 in failing to put country of origin presented by the Commissioner at the hearing of the appeal to the applicant prior to the hearing.

Held by Hedigan J in refusing the reliefs sought that, given that the country of origin information relied upon had been widely available, the question of internal relocation was a matter which was central to the majority of asylum applications, the applicant could not validly claim to have been taken by surprise because the question of internal relocation had been raised at the oral hearing. No injustice had been caused to the applicant nor had there been a breach of fair procedures.

Reporter: P.C.

1 MR JUSTICE HEDIGAN, delivered on the 4th day of November, 2008

2 1. This is an application for judicial review by way of certiorari of the decision of the Refugee Appeals Tribunal ("RAT") to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner ("ORAC") that the applicant should not be declared a refugee. Leave to apply for judicial review was granted on 25 ^th April, 2008 by Birmingham J.

Factual Background

3 2. The applicant is a national of Sudan and a member of the Tanjar tribe. He is a Muslim and his first language is Arabic. He says that he and his wife lived in a small village in the Darfour region until the first week of September, 2005, when their village was attacked by government-sponsored Janjaweed militia, their home was burned down and many people were killed. The applicant and his wife did not seek help from the authorities nor did they go to a nearby IDP camp. Instead, the applicant's father paid for them to be smuggled out of the country. They journeyed together to Libya but were separated at that point and the applicant travelled on alone, by ship, to Ireland. He has not seen his wife since then.

The ORAC Stage

4 3. The applicant applied for asylum upon arriving in the State on 21 ^st November, 2005. In his ORAC Questionnaire, he stated that he had escaped Sudan because his house was burned down in an attack carried out by the Janjaweed, He did not give any further details about the incident. At his interview on 13 ^th December, 2005 with an authorised ORAC officer, he specified further details about the attack on his home. He claimed to fear that if returned to Sudan, the Janjaweed will kill him because he is not an Arab and he said that the government wants to take his land.

5 4. The ORAC officer compiled a report, dated 23 ^rd December, 2005, in compliance with section 13 of the Refugee Act 1996, wherein it was recommended that the applicant should not be declared a refugee. The officer drew several negative credibility findings. He canvassed the issue of internal relocation in a tangential manner, citing Professor Hathaway to the effect that "[a] person cannot be said to be at risk if she can access effective protection in some part of her state of origin."

The RAT Stage

6 5. The applicant appealed to the RAT and an oral hearing was held on 16 ^th March, 2006. At the hearing, a copy of a U.K. Home Office Operational Guidance Note ("OGN") on Sudan, dated 13 ^th December, 2005, was presented to the Tribunal Member via the Presenting Officer. The OGN states that the Janjaweed operate exclusively out of the Darfour region and that non-Arab ethnic Darfurees are not, therefore, at risk of persecution outside the Darfour States and may be expected to relocate to another area within Sudan where they will be safe. The OGN was not available to the ORAC officer when considering the applicant's claim and it was not provided to the applicant in advance of the RAT oral hearing. At the hearing, when the Presenting Officer asked the applicant to comment on the portions of the OGN that relate to internal relocation, he replied that he did not think the report was true.

7 6. In his decision, dated 9 ^th May, 2006, the Tribunal Member rejected the applicant's personal credibility on a variety of grounds and stated that "the lack of credibility in this case fundamentally infects the subjective element of a well-founded fear of persecution". Having set out the matters that cast doubt on the applicant's credibility, the Tribunal Member briefly remarked as follows:-

"I have considered the British operational guidance note on Sudan dated the 13 ^th of December 2005, in relation to internal relocation, in light of the forward looking aspect of the Convention."

8 7. The Tribunal went on to conclude that the applicant had not demonstrated a well-founded fear of persecution, and he affirmed...