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Cite as: [2008] IEHC 220

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Neutral Citation: [2008] IEHC 220

THE HIGH COURT

2006 1268 JR

BETWEEN

F. A. A.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

and DES ZAIDAN (SITTING AS THE REFUGEE APPEALS TRIBUNAL)

RESPONDENTS

EX TEMPORE JUDGMENT OF MR. JUSTICE BIRMINGHAM delivered on the 24^th day of June 2008

This is a case where the applicant seeks leave to apply for judicial review of a decision of the Refugee Appeals Tribunal ("RAT"), dated 19^th June, 2006, which affirmed the earlier recommendation of the Office of the Refugee Applications Commissioner ("ORAC") that he not be declared to be a refugee.

Factual Background

The factual background to the unsuccessful claim for asylum is that the applicant states that he is a Sudanese national from the Darfur region. Specifically, the applicant links his departure from Sudan to Ireland to the fact that his village, Khor Abeche, was attacked by the Janjaweed on 7th April 2005. This, apparently, was by way of revenge or a reprisal for an incident about a month earlier. His case is that he departed Sudan to Ireland by ship, having moved from his home village, first to another village and then to Nyala, the regional capital. He did so with the assistance of his uncle, who apparently was a man of some means. The journey took some three weeks in all and involved a change of ship en route. He entered the State on the 28^th July, 2005, and then proceeded to apply for asylum.

The RAT Decision

The Tribunal decision was primarily reached on the basis that the claim advanced by the applicant lacked credibility, though there was also a conclusion reached that internal relocation was, or might be, an option. The applicant now seeks to challenge the decision essentially on four grounds. I would summarise those grounds as follows:

a. An alleged failure to properly consider and adjudicate on core matters of fact;

b. An allegedly flawed assessment of credibility;

c. A reference to a UK Home Office Operation Guidelines document when dealing with the question of internal relocation; and

d. Criticism of the delay between the RAT oral hearing and decision.

I will deal briefly with each of these in turn.

(a) The failure to properly consider and adjudicate on core matters

The background to this ground was that the section 13 report, at first instance, seems to have been fundamentally flawed. In particular, the ORAC officer, having undertaken an amount of research, concluded that Khor Abeche - the applicant's home village which he says was attacked - just did not exist. In fact, the existence of the village is absolutely indisputable and that there was indeed an attack on 7^th April 2005 is well documented. Understandably, the applicant and his legal team were greatly concerned to correct these fundamental errors at the appeal. However, the Presenting Officer expressly accepted that the analysis in the section 13 report was inadequate. In these circumstances, it was, in effect, common case that there had been a bloody attack on the village from which the applicant was claiming to have come. In that situation, I do not find it at all surprising that there would be no specific finding by the Tribunal Member on this matter in the decision.

It is true that there does not seem to have been any specific finding as to whether the applicant was in Khor Abeche on the occasion when it came under attack. I think it would have been desirable that there would have been such an express finding. However, reading the decision as a whole, and, in particular, reading the portion of the decision that deals with the conclusions reached in relation to credibility, it seems to me that it is clearly implicit in the decision that the Tribunal Member was taking the view that he did not believe that the applicant was in fact in the village. In that sense, I do not believe that this case is comparable to the decision of Peart J. in Sango v The Minister for Justice, Equality and Law Reform [2005] IEHC 395, where the Tribunal Member failed to make any assessment of the alleged fact that the applicant had the physical characteristics of a Tutsi, which was central to his asylum application, but rather based his assessment of credibility on peripheral matters.

(b) The issue of the Assessment of Credibility

The adverse findings that the Tribunal Member reached in relation to credibility seem to have been reached on the following four factors:-

a. The fact that there was no reference in the ORAC Questionnaire to the attack of 7^th April 2005 or the earlier incident of 9^th March 2005;

b. The absence of identity documentation. Obviously, in dealing with that issue, the Tribunal Member was having regard to, as he was obliged by statute to have regard to, the provisions of section 11 of the Refugee Act 1996 (as amended);

c. The fact that the applicant left his young daughter, who was some eight years of age at the time, behind in his country of origin, in a situation where her mother had died some time before;

d. The account given of the route taken and the journey to Ireland, the entry into the State and the application for asylum.

I think it is fair to say that the applicant offered an explanation in respect of each of these matters. To take just one example: while the Tribunal Member found it significant that the Questionnaire had not referred to either of the incidents at the village, the applicant says that he was operating on the basis that he would have a fuller opportunity to elaborate at the interview stage. Similar explanations are given for the absence of documentation; essentially that he had to flee his village and was not in a position to access any documents that he might have, and so on.

On behalf of the applicant, it is argued that the Tribunal Member was wrong not to accept the explanation given, or, at the very least, wrong not to give him the benefit of the doubt. Without going through each of the findings and each of the explanations given individually, it seems to me that the Tribunal Member was well within his rights to reach the conclusions that he did in relation to the significance of these issues, and the fact that he was not going to accept the explanations offered. Again, without going through them individually, it seems to me that the incidents of 9^th March 2005 and 7^th April 2005 were, on the applicant's account, of such absolutely fundamental significance that it was quite understandable that the Tribunal Member would find it extraordinary that no reference was made to these incidents in the Questionnaire.

The role of the Court where a case is put on the basis that the credibility conclusions are flawed has been considered in a large number of cases, and what emerges from all of those cases is that this Court has to be very careful to avoid falling into the trap of substituting its own views for those of the Tribunal. The Tribunal Member has available to it the tool of being able to observe the demeanour of the applicant and see at first hand how the applicant responds to questions and how he or she deals with issues that are raised. This is a matter to which the Tribunal Member makes some reference in the decision that is the subject of the present challenge.

It seems to me that while the challenge to the conclusions in relation to credibility are couched in terms of the language of judicial review, that in substance this is a case where an applicant is disappointed at the result reached and now seeks to have the issue reopened. In these circumstances, I do not propose to give leave either on the basis of failure to properly consider and adjudicate upon core matters or on the basis that the Tribunal Member's assessment of credibility was flawed.

(c) The question of Internal Relocation

It appears that at the hearing, the Tribunal Member introduced a UK Home Office operations guidance note. The Tribunal Member's decision then records as follows:

"I have considered the option of internal relocation, as outlined to me at the hearing, in light of the forward-looking aspect of the Convention, internal relocation may have been an option open to the applicant."

In the present proceedings, the applicant objects to the use made of the UK Home Office guidance notes. It is pointed out that the publishers of the guidance notes state that:-

"They are policy documents which provide guidance on the treatment of particular categories of asylum and human rights claims. The country information element of these documents is interwoven with wider policy considerations and case law. For this reason, it will be difficult to extract the country information element and retain its sense without the context of the original document."

The publishers go on, somewhat further down the quotation, to say:-

"Operation guidance notes explicitly instruct decision makers to refer to the relevant country of origin product and original sources for the full picture".

On behalf of the respondents, the point is taken that having found that the applicant's account was incredible there was no need to have considered the question of internal relocation, and that the views formed in that regard cannot be regarded as being in any sense central. Reliance is placed in that context on the decision of Peart J. in Rasheed Ali v The Minister for Justice, Equality and Law Reform [2004] IEHC 108. While I would accept, reversing the normal test, that the respondent has a substantial argument to make in that regard, and while I would accept that it is possible to sever the portion of the decision dealing with internal relocation by applying a red pencil test, I find it difficult to ignore the fact that that the Tribunal Member seems to have seen the issue of internal relocation as being of some significance. So, for example, he quotes at some length from the provisions of the UK Home Office guidance notes.

I return, therefore, to the question of making use of the guidance notes. For my part, I can see nothing objectionable whatsoever in a decision-maker referring to such notes. While noting the caveats of the publisher, to which I have referred, it seems to me that in the nature of things these are likely to prove of great assistance, addressing, as they do, specific issues of concern to a decision-maker. Such notes are likely to be inherently more reliable than many sources to which reference is made, such as, for example, isolated extracts from media sources, sometimes of uncertain pedigree or, on occasions, polemical extracts from groups with a political or advocacy agenda.

In this case, the Tribunal Member's reliance on the guidance notes has had one practical effect. Because exclusive reliance is placed on the guidance notes, no reference was made to UNHCR document entitled "UNHCR's Position on Sudanese Asylum-Seekers From Darfur", dated 10^th February, 2006, which is the month before the oral hearing. This UNHCR document dealt very fully with the specific issue in question, namely the possibility of internal relocation to Khartoum, or elsewhere in Sudan. If internal relocation had become an issue in this case, it is hard to imagine a document that was more relevant than the UNHCR document, which records as follows, at paragraph 8:

"The fact that internally displaced persons are receiving international assistance in Darfur and in Khartoum should not give rise to the conclusion that it is safe or reasonable for the claimants to return to parts of Sudan. Internally displaced persons in Darfur continue to face serious threats to their physical safety and personal security. In the UNHCR's assessment, the threats are so widespread that it cannot be said that there is an internal flight alternative anywhere in Sudan for asylum seekers from Darfur, including for those who resided in Khartoum before the Darfur crisis."

That quotation continues. At paragraph 9, the report concludes with the recommendation that:-

"States provide international protection to Sudanese asylum seekers from Darfur of "non-Arab" ethnic background, through according them recognition as refugees under the 1951 Convention relating to the Status of Refugees and its 1967 protocol or under the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, as appropriate."

The UNCHR document goes on to offer the following alternative:-

"Where a State feels unable to grant refugee status under the law, but the individual is not excluded from international protection, at least a complementary form of protection should be granted; no non-Arab Sudanese originating from Darfur should be forcibly removed until such time as there is a significant improvement in the security situation in Darfur."

Counsel on behalf of the respondent says, quite reasonably, that the applicant was not a passive bystander at the RAT oral hearing and that it was open to the applicant or his advisers to access the documentations, either at or before the oral hearing or afterwards. It seems to me that is something of a counsel of perfection. A document which appeared to be directly in point from an authoritative source had been produced. I think it is understandable that alternative sources were not accessed in the aftermath of the RAT oral hearing, particularly given that at that stage, no one could have been sure whether the issue of internal relocation would be central to the decision.

(d) The Question of Delay

In this case, the RAT oral hearing took place on 8^th March 2006, while the Tribunal Member's decision is dated 16^th June 2006, some three months and eight days or so later.

The applicant says that the delay that has taken place is such as to undermine the integrity of the decision. This contention is based on a number of English cases, such as Sambasivam v the Secretary of State for the Home Department [2000] Imm AR 85 and Mario v Secretary of State for Home Department [1998] Imm AR 306, and the way in which those cases were considered by Finlay Geoghegan J. in Biti v The Refugee Appeals Tribunal & Ors [2005] IEHC 13. The delay in this case is certainly more than the three month rule of thumb that applies in England. In my view, the three month rule of thumb has to be seen in the context that in England, the immigration authorities had adopted a form of internal discipline which categorised periods in excess of three months between hearing and promulgation of a decision as unacceptable.

When granting leave in Biti [2005] IEHC 13, Finlay Geoghegan J. was dealing with a delay of an entirely different order, one in the region, it appears, of 15 months. For my part, I am quite satisfied that absent special circumstances, a delay of less than three and a half months could not possibly provide a basis for a challenge. Indeed, Finlay Geoghegan J. held as much in S.I. v The Minister for Justice, Equality and Law Reform & Anor [2007] IEHC 165.

However, in the particular circumstance of this case, the delay that would otherwise be quite unobjectionable interacts, in a sense, with the issue of the Tribunal Member's reliance on the UK Home Office guidance notes. This is so because highly relevant and authoritative information was not sourced, in part because the guidelines have been relied on exclusively. The delay, which I stress is not of itself culpable, means that the time lag between the UNHCR document having become available and the Tribunal Member's decision being issued becomes a not insignificant one.

The situation in Sudan is one that is receiving constant attention and the question of the option of internal relocation for people from the Darfur region has agitated decision-makers in a number of jurisdictions. Given the sensitivity of the issue, and the fact that conditions are likely to be changing on a daily basis, as evidenced perhaps by the fact that the UNHCR contemplated issuing a further document within six months of that to which I have referred, it seems to me to be particularly important that decisions be based on the most up-to-date and authoritative information possible. In these circumstances, I believe that substantial grounds have been established, on the basis of the combination of the Tribunal Member's exclusive reliance on the Home Office guidance notes and the passage of time after the oral hearing. I will give counsel an opportunity to consider this judgment and to then make proposals as to the terms on which leave should be granted.

Approved: Birmingham J.