Z (M U) v Refugee Appeals Tribunal (O'Brien) & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 12 February 2010
• Neutral Citation: [2010] IEHC 141
• Court: High Court
• Date: 12 February 2010

[2010] IEHC 141

THE HIGH COURT

[No. 1412JR/2007]

Z (MU) v Refugee Appeals Tribunal (O'Brien) & Min for Justice

JUDICIAL REVIEW

BETWEEN

M.U.Z.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (Tribunal Member, Elizabeth O'Brien)

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S16(2)

REFUGEE ACT 1996 S11B

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S16(16)(E)

REFUGEE ACT 1996 S11(2)

T (AM) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2004 2 IR 607 2004/49/11175 2004 IEHC 219

S (DVT) v MIN FOR JUSTICE & ORS 2008 3 IR 476 2007/54/11621 2007 IEHC 305

KEAGNENE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (NICHOLSON) UNREP HERBERT 31.1.2007 2007/31/6465 2007 IEHC 17

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL (HURLEY) & MIN FOR JUSTICE UNREP PEART 9.7.2004 2005/15/3102 2004 IEHC 436

R (R) v REFUGEE APPEALS TRIBUNAL & ORS UNREP MCCARTHY 28.11.2008 2008/54/11263 2008 IEHC 406

CARCIU v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP FINLAY-GEOGHEGAN 4.7.2003 2003/8/1638

T (G) v MIN FOR JUSTICE UNREP PEART 27.7.2007 2007/57/12325 2007 IEHC 287

MOISEI & EFREMOV v REFUGEE APPEALS TRIBUNAL (NICHOLSON) UNREP PEART 14.7.2004 2004/31/7222 2004 IEHC 153

SIBANDA v MIN FOR JUSTICE UNREP BIRMINGHAM 15.1.2009 (EX TEMPORE)

RADZUIK v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 (EX TEMPORE)

K (G) & ORS v MIN FOR JUSTICE & APPEALS AUTHORITY & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

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

S (AW) v REFUGEE APPEALS TRIBUNAL (ZAIDAN) UNREP DUNNE 12.6.2007 2007/54/11567 2007 IEHC 276

G (T) v REFUGEE APPEALS TRIBUNAL (MCGARRY) & ORS UNREP BIRMINGHAM 7.10.2007 2007/25/5206 2007 IEHC 377

J (MT) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP BIRMINGHAM 17.4.2008 2008/30/6563 2008 IEHC 102

IMMIGRATION

Asylum

Fear of persecution - Adverse credibility decision -Whether error of fact of material nature - Whether failure to take account of directly relevant information - Whether material and adverse credibility findings made on foot of error - Whether matter complained of represents core finding upon which adverse credibility decision based - Whether immaterial and minor deficiencies detract from overall validity of decision - Radzuik v Minister for Justice, Equality and Law Reform (Unrep, HC, Cooke J, 24/7/2009) followed - T(AM) v Refugee Appeals Tribunal [2004] 2 IR 607; DVTS v Minister for Justice, Equality and Law Reform [2008] 3 IR 476; Keagnene v Minister for Justice, Equality and Law Reform [2007] IEHC 17; Da Silveira v Refugee Appeals Tribunal [2004] IEHC 436; R(R) v Refugee Appeals Tribunal [2008] IEHC 406; Carciu v Minister for Justice, Equality and Law Reform [2003] IEHC 41; Tabi v Refugee Appeals Tribunal [2010] IEHC 109; Moisei v Refugee Appeals Tribunal [2004] IEHC 153; Sibanda v Minister for Justice, Equality and Law Reform (Unrep, HC, Birmingham J, 15/1/2009); K(G) v Minister for Justice, Equality and Law Reform [2002] 2 IR 418; Banzuzi v Minister for Justice, Equality and Law Reform [2007] IEHC 3; S(AW) v Refugee Appeals Tribunal [2007] IEHC 276; G(T) v Refugee Appeals Tribunal [2007] IEHC 377 and T(MJ) v Refugee Appeals Tribunal [2008] IEHC 102 considered - Refugee Act 1996 (No 17), ss 2, 13 and 16 - Claim dismissed (2007/1412JR - Edwards J - 12/2/2010) 2010 IEHC 141

Z(MU) v Refugee Appeals Tribunal

1 JUDGMENT of Mr. Justice Edwards delivered the 12th day of February, 2010.

Introduction

2 The applicant in this matter is an Afghani national of Pashtun ethnicity. He arrived in Ireland on the 16 ^th of February, 2005 and sought refugee status. He did so on the basis of a fear of persecution by the Government of Afghanistan on account of his political opinions. His application for asylum was considered in the first instance by the Refugee Applications Commissioner who ruled that the applicant had failed to establish a well-founded fear of persecution in accordance with s. 2 of the Refugee Act, 1996 (as amended) and recommended that the applicant should not be declared a refugee. The applicant appealed against the commissioner's s.13 report and recommendation to the Refugee Appeals Tribunal. In a decision dated the 27 ^th August, 2007, the Tribunal Member ruled that that the applicant had failed to "satisfy the appropriate standard of proof, low though it is, in showing that there is a reasonable likelihood that he would be persecuted for a Convention reason, as opposed to any other reason, or indeed as opposed to being prosecuted for any other reason, if returned to his country of origin." and, accordingly, pursuant to s. 16(2) of the Refugee Act, 1996 she affirmed the recommendation of the Refugee Applications Commissioner made in accordance with s. 13 of that Act.

3 On 26th February, 2009 the applicant applied for, and was successful in obtaining, an Order of the High Court (Peart J.) granting him leave to apply by way of application for judicial review for various reliefs as are now set forth in his amended Statement of Grounds, including an Order of Certiorari quashing the decision of the first named respondent dated the 27 ^th August, 2007 rejecting the applicant's refugee appeal, which said decision was notified to the applicant on the 6 ^th September, 2007.

4 The grounds upon which the applicant successfully obtained leave were:-

"The decision of the Tribunal Member contains and relies on factual error of a material nature and/or the Tribunal Member relied on an erroneous understanding of the information and evidence before her and has relied on material error of fact in reaching her conclusions and/or has misunderstood or misconstrued the information before her and/or has failed to take account of directly relevant information."

Background to the Applicant's Claim

5 The background to the applicant's claim, as understood by the first named respondent, is set out in Part 3 of the decision, and it is appropriate to recite it. The Tribunal Member stated:

"3. THE APPLICANTS CLAIM"

6 The applicant was born on the 1st October 1972 in Pakhtia, he is Pashtun, he has had the benefit of 2 years education, he has never been employed, according to his questionnaire. The applicant is married and has 4 dependant children.

7 The applicant claims that he is a member of Hezb-i-Islami, the Hekmatyar faction. He claims that he joined in 1361 (1990), when he was approximately 17 years of age. He claims that they were then fighting the government of the time; he claims that they fought in Gardez, Khost and Logar. He claims that in 1992 they started fighting the government of Masood; they established headquarters in Chahar-Aziab. The applicant claims that he was very involved with the party; he claims that he was involved in fighting in Chahar-Aziab and Pol-e-Charkhi. He claims that in 1373 the Taliban came to power in their area, he claims that they fought them in Ghazni also. He claims that in 1380 the Taliban fell, and that at the time Hekmatyar was in Iran, he claims that they were not offered a strong position within the government, and accordingly they started fighting against the current government. He claims that his commander was Said Khamal, and he asked the applicant to gather people to fight. He claims that he was in Zazai, close to the border with Pakistan and that they needed money and weapons to fight against the foreign forces. He claims that they were waiting for orders to fight but they did not fight, he claims that they were in fact never ordered to fight; he claims that he waited for 2 to 3 months in Zazai, for orders that never came.

8 The applicant states that Haji Amir is a friend of his who works for the government, he claims that this man told the applicant that his name was on a government blacklist and that he was to be arrested. He claims that Haji Amir is the Maluk in their village; he claims that he is a contact between the people and the government and that he saw letters that referred to the applicant and told him that he should be careful. The applicant was told this in the third month of 1383. The applicant stated that he was not so worried about this at first, however then another leader of a group was arrested in Logar, a man by the name of Daoud Moslih, this man had Islamic party files, he was tortured and gave a lot of information about the applicant. The applicant was asked how he knew this, he claims that this must have been what happened because a government helicopter came to their home at the end of the eighth month in 1383, and the house was searched, the applicant claims that they were looking for him. He claims that he did not return home but went to another nearby village, where he spent 3 to 4 days; ultimately he went to Pakistan where he arranged with a smuggler who took him to Iran. He claims that he stayed in Iran for 1½ to 2 months and then travelled to a Russian speaking country; he then travelled for approximately one month ultimately arriving in Ireland. The applicant was asked whether he was safe in Iran or the Russian country, the applicant answered a different question, stating that he was under the control of the trafficker at all times, the applicant was asked this question twice, and twice he answered a different question. It was put to the applicant that he had been asked twice why he was not safe in the other countries, yet he had answered with the typical response that is given to the question of why an applicant does not apply for asylum in those countries. The applicant states that when they talked to the smuggler, the smuggler agreed with the applicant to take him somewhere safe, and the smuggler did not leave him in either Iran or Russia and that therefore he assumed they were not safe. The applicant states that he...