"X" v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: MR JUSTICE HERBERT
• Judgment Date: 11 December 2007
• Neutral Citation: [2007] IEHC 422
• Court: High Court
• Date: 11 December 2007

[2007] IEHC 422

THE HIGH COURT

[868 JR/2005]

X v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT, 1996 (AS AMENDED), IN THE MATTER

OF THE IMMIGRATION ACT, 1999 AND IN THE MATTER OF THE ILLEGAL

IMMIGRANTS (TRAFFICKING) ACT, 2000 AND IN THE MATTER OF THE

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT, 2003 SECTION 3(1)

BETWEEN

"X"

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM ATTORNEY-GENERAL IRELAND

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

REFUGEE ACT 1996 S13(1)

IMMIGRATION ACT 1999

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

REFUGEE ACT 1996 S2

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 ART 29

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 ART 37

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 ART 52

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 ART 53

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 ART 67

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 ART 80

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 ART 196

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 ART 195

Z v MIN JUSTICE & ORS 2002 2 IR 135 2002 2 ILRM 215

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 ART 201

GOODWIN-GILL REFUGEE IN INTERNATIONAL LAW 2ED 1996 349-350

IMMIGRATION LAW

Asylum

Judicial review - Decision of RAT affirming recommendation of RAC - Whether Member erroneously considered claim for asylum - Fear of persecution - Togo - Basis for fear of persecution - Credibility of applicant - Procedures and criteria for determining refugee status - Whether basis for claim for subjective fear of persecution distorted and unduly restricted in interview - Whether failure to observe fair procedures - Whether RAC unduly selective - Whether RAC failed to maintain proper balance - Standard required for remission for re-hearing - Z v Minister for Justice (Unrep, SC, 1/3/2002) - Refugee Act 1996 (No 17), s 2 - Decision quashed and matter referred back to RAT for re-hearing (2005/868JR - Herbert J - 11/12/2007) [2007] IEHC 422

X v Minister for Justice, Equality and Law Reform

1 MR JUSTICE HERBERT delivered on the 11th day of December, 2007

2 The Applicant in this matter, having been arrested when seeking Unemployment Assistance, then sought asylum in this State.

3 The Initial Application form was completed by the Applicant himself on the 17 ^th April 2003. The Applicant gave a family name and two forenames. He gave his date of birth as 23 ^rd June 1967. He stated that he was a Togolese national and, he furnished an address in that country. He gave the name and year of birth of his father and the name and year of birth of his mother. He stated that he did not have a spouse or partner or children. He gave the following reason for leaving his alleged country of origin:-

"Due to tribal and political crisis, leading to my family death, so as the first child, I was needed for execution as well, and I come to Ireland therefore for refuge and safety."

4 On 17 ^th April 2003 an Information Questionnaire for Refugee Status Application was completed by the applicant. The Applicant gave his family name, his given names and his date of birth, all of which were the same as in the Initial Application form. He stated that his country of birth was Togo and his nationality was Togolese. He stated that his citizenship at birth and his present citizenship was Togolese. He stated that he belonged to the Youroba Tribe and that he was a Christian. He said that his first language was French but he also spoke English and Youroba. He gave particulars of having received six years primary education and seven years second level education in his native village of "Y". He gave the family name, given name, year of birth, nationality and occupation of his father and mother. He stated that his father was deceased and he did not know if his mother was living or deceased. He gave the family name, given name, and year of birth of a sister, but did not know whether she was living or deceased.

5 He stated that he had misplaced his passport and his national identity card, both of which had been issued by the Immigration Office at Lome, Togo and were valid until 30 ^th December 2001. He said that his home was broken into in the middle of the night on 5 ^th December, 2001 about 01.00 hours and he had to flee as he feared for his life, leaving his mother an sister and these documents behind.

6 At Part 2 of q. 26 of the Questionnaire, in response to the question "why do you fear persecution?" the Applicant replied as follows: -

"Because my father was killed and my uncle was also killed in the tribal problems in Togo, and as the first son of my father they want to persecute me also."

7 In response to qs. 27 and 28 as to what type of persecution he feared and from whom he feared it, the Applicant responded as follows:-

8 "I want [sic] to be executed while my village "Y" is against the present Government, for that they attack and kill our village and family members … from the President village members called the "Z" village in Togo Republic".

9 At q. 29 of the Questionnaire he was asked if he had reported his fears to the authorities, and if so, when and to whom and what response he had received. His reply was that he had reported his fears to the authorities, "from the beginning of the present Government", that the "Government knows about it" and that he had received no response because the persecution was by members of the President's tribe. He then added that, "even if I report that will put me to more problems". In response to the question as to whether he was a member or had previously belonged to any political, military, ethnic or social organisation or grouping in Togo he answered "am a member of "Y" village the President village is against the tribe I come from".

10 The responses to further questions indicated that the Applicant claimed to have been mistreated or threatened by the authorities in Togo and by a group or groups controlled by the Government of that country. These further responses indicated that the mistreatment and threats were by groups loyal to the President who harass anyone that talks against the Government. They were the President's thugs, he said. President, General Gnassingbé Eyadéma was, he stated, the one who organises the thugs secretly, they are from his village of "Z".

11 In response to a question asking him to describe his activities and responsibilities in any organisation or group, for example, political parties, the following was the response given:-

"I have no responsibilities in any organisation. In 1991 in Lome, Togo we demonstrated for change of government to democratic government".

12 In response to a question as to whether he had moved to a different town or village or to another part of the country to avoid the persecution which he claimed to fear, he responded that the President owns the Country and that members of his tribe (that is the applicant's) were not safe with the present government. In response to a question as to whether any other member of his family had been mistreated or threatened, he stated that his father had died on 1 ^st September 1975 and his uncle had died on 1 ^st December 1990 for [sic] the same process. He stated that his father was among the tribe members who wanted to change the government, that the government of Togo was a military government and that they want nobody to do or to say anything against the Government. He sated that in 1990 group called the "Secret Killers" blocked the road from Lome to northern Togo, checked the cars and took out any person from his tribe for torture and beating. He stated that members of his family had been mistreated and threatened by thugs who were members of the President's village of "Z" in Togo. He said that his uncle had been arrested in 1990 and detained in "Y" Police Station. He said that his uncle was now "on the run".

13 In response to a question as to whether any members of his family had been accused, charged or convicted and sentenced in Togo he responded that, "they prefer harassing and killing the village members". He said that military service was compulsory in Togo but that his tribe members were not given the chance to be in the military.

14 In response to a question asking what he feared would happen if he returned to Togo he responded as follows:-

"My reasons are:-"

15 (1) In 1975 my father was attacked and killed by the Government.

16 (2) My uncle was also killed on 1 ^st December 1990 at "Y" for the same problem.

17 (3) On 5 ^th December 2001 my father's house was attacked at midnight to 0100 am. That led to my running away from the village and for that I don't know where my mother and my sister are. There has not been peace for my village members in "Y" Togo. On January 30 ^th 1994 it was the same, the military killed 12 people in Lome. The same - 25 ^th January 1994 the military killed also 19 people."

18 The Applicant stated that he had left Togo on 5 ^th December 2001 unaccompanied. He made his way to Burkina Faso where he remained for six months then he went to Mali where he remained for two months. From there he travelled to Mauritania where he remained for four months and from there went to Morocco where he remained four months. From Morocco he said he travelled to Spain and Portugal. He stated that he had not applied for refugee status in any of these countries. Finally he stated that since the beginning of the regime of President Gnassingbé Eyadéma many Togolese people...