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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A.G. -v- The Refugee Appeals Tribunal & Ors [2013] IEHC 247 (25 April 2013)
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Cite as: [2013] IEHC 247
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Judgment Title: A.G. -v- The Refugee Appeals Tribunal & Ors Neutral Citation: [2013] IEHC 247 High Court Record Number: 2009 1397 JR Date of Delivery: 25/04/2013 Court: High Court Composition of Court: Judgment by: McDermott J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 247 THE HIGH COURT JUDICIAL REVIEW [2008 No. 1397 J.R.] BETWEEN A.G. APPLICANT AND
THE REFUGEE APPEALS TRIBUNAL (TRIBUNAL MEMBER DENNIS LINEHAN) AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENTS JUDGMENT of Mr. Justice McDermott delivered on the 25th day of April, 2013 1. By notice of motion of 11th December, 2008, the applicant sought leave to apply for judicial review by way of certiorari, mandamus and a declaration challenging the decision of the Refugee Appeals Tribunal (the first named respondent) recommending the refusal of refugee status which was notified by letter of 11th November, 2008, and made the 3rd November, 2008. The application was grounded upon the affidavit of the applicant. The Affidavit of the Applicant
3. The application for refugee status was made following the applicant’s arrival in Ireland on 13th November, 2006. He gave his date of birth as 6th June, 1983, and said he was a national of Bhutan. He said that he left Bhutan on 15th November, 1991 (aged eight) and claimed to have arrived at Rosslare harbour on 11th November, 2006. He stated that he had been living in Nepal from 1991 until 10th May, 2006. He stated that he had never sought asylum before in Ireland or in any other country. He claimed that government forces killed his family in Bhutan. The Questionnaire 5. He stated that he never held a passport because, to have one issued, he needed to hold Bhutanese citizenship which he did not possess. He stated that he did not hold a visa to enter any country nor had he ever made an application for an Irish visa or a student visa or work permit. He claimed to have entered Ireland with a Nepalese passport. He stated that he had never applied for asylum anywhere else. He expressed himself happy with the information set out in the questionnaire and said that it was accurate. Section 11 Interview 7. He claimed that he had left Bhutan because his mother, father and brother were killed by the Bhutanese police and that he and his uncle were later threatened as already recounted. He stated that he lived in Nepal for the entire period from 1991 until 10th May, 2006. 8. He stated that he believed that when brought to Nepal by his uncle, his uncle was registered as a refugee but he did not know whether he had been so registered as he had no papers. He remained for about one month in a refugee camp, which he could not now identify. 9. He claimed that he left Nepal because of threats made by “Maoists ” who were threatening him and trying to intimidate him into joining their political party and army. He believed that this first happened at the time of the Hindu Festival season in or about September/October, 2002. He was very young at the time and referred them to his employer, by whose decision he said he would abide. He was approximately nineteen years old at the time. He refused to join the party or the army. They contacted him about four times to join. He left his work place in September, 2003 and, therefore, did not receive any more threats from the Maoists. The Maoists never harmed him nor was he ever arrested by the Nepalese authorities. When asked about the threats made by the Maoists s he stated that they tried to induce him to join with promises of official papers or lodgings or food and equal status in their organisation with other members. 10. Up to that point he had been living at Bagaletole (from January, 1994 to September, 2003). He then went to work in a restaurant in the town of Baglung (from 19th September, 2003 to 10th August, 2005). It closed because of unrest caused by the Maoists. He lost his job and left Baglung for Kathmandu where the police were carrying out operations against the Maoists. He had no identity papers and felt he would have a problem with the police if he remained. He then travelled to Bhairahawa, where he remained for two months. He then returned to Bagaletole for one week. His former employer was planning to move to the United Kingdom and suggested that he should leave. He claims that he was placed in contact with an agent who could help him to get to Ireland. He was furnished with a letter. He stayed with the agent for two months in Kathmandu before leaving Nepal. He was helped out financially by his former employer. 11. He also claimed that in or around September, 2005 he tried to register as a refugee from Bhutan in a refugee camp of Beldangi, but was refused registration because he had come too late after leaving Bhutan and had no documents. The Refugee Applications Commissioner inquired into this matter but discovered that there was no record of any such application or any record in respect of the applicant in Beldangi refugee camp. 12. He stated that he had never attempted to leave Nepal prior to May, 2006. 13. He also claimed that, though his uncle found a job for him and visited him for some two years afterwards, this ceased when he asked his employer to stop paying a large portion of his wages to his uncle. Decision of the Refugee Applications Commissioner Notice of Appeal Tribunal Decision 17. In his oral evidence the applicant claimed that he had spent two months in a refugee camp in Nepal after initially fleeing Bhutan with his uncle and his uncle’s family in 1991. He restated that he was given a job when twelve (1995) to look after an old man on a fulltime basis to whom he became close. He had no identification documents and did not have citizenship of Nepal or Bhutan. He did not have a passport or work permit. This man obliged him to leave his employment in 2003. He claimed that he left India in November, 2006 and travelled on a false Nepalese passport. 18. It is noteworthy that the Tribunal concluded that there had been no realistic challenge on behalf of the Commissioner concerning the fact that this man and his uncle and other family members were expelled from Bhutan in 1991 because they were ethnic Nepalese. It accepted as an undisputed fact that the applicant left Bhutan in 1991 when he was seven or eight years old. It was accepted that he travelled in the company of his uncle and his uncle’s family to Nepal and spent two months in a refugee camp. After two months they moved to another location. It was accepted that he secured employment looking after an old man when he was approximately twelve years old. 19. The Tribunal determined that the applicant’s habitual residence was Nepal and assessed his application for refugee status on that basis. The Tribunal ruled that the question to be determined was whether or not the treatment afforded to the applicant whilst he was in Nepal would amount to “persecution”. The applicant’s main difficulties whilst he was in Nepal for a period of fifteen years were that he could not gain citizenship in that country and was treated as a second class person because he came from Bhutan. He did not come to any harm by reason of the fact that he had come from Bhutan and he had never been arrested by the police or questioned by them whilst in Nepal. There was nothing to prevent him returning to Nepal. The issue of the threats from the Maoists was noted as the only reason that had been offered in the initial stages of the application for his leaving Nepal. The Tribunal considered that he could not have any fear of Maoists in the future because they had now declared a ceasefire and formed part of the government of Nepal. 20. The Tribunal determined that the applicant was a “stateless” person whose case fell to be determined on the basis of whether he was outside the state of his habitual residence and had a well founded fear of being persecuted and was unable or owing to such fear was unwilling to avail himself of the protection of his country of habitual residence. The applicant claims that his claim for refugee status should have been assessed in respect of Bhutan rather than Nepal and that he had clearly been habitually resident in Bhutan in the earlier part of his life. Application for Judicial Review 22. In this application leave was sought to apply for judicial review on the basis of the grounds set out at paras. 5(a) to (h) inclusive of the statement of grounds furnished. Legal submissions were exchanged between the parties and the matter was fully heard by this Court and judgment reserved on the matter. At no stage did the applicant up to that point furnish any additional information that would contradict in any respect the information already furnished to the authorities and to the court. 23. By notice of motion dated 14th February, 2013, the respondents applied to the court to dismiss the applicant’s proceedings by reason of material non-disclosure or lack of candour or wrongful conduct on his part in respect of the evidence underpinning his application for asylum and the proceedings, or in the alternative, an order dismissing the proceedings on the grounds that they constituted an abuse of process. This application was grounded upon the affidavit of Mr. John Moore and contained information received by the Irish immigration authorities from the UK Border Agency of the British Home Office following a request for information in respect of the applicant. 24. By letter dated 20th September, 2011, the Irish authorities were informed that the applicant’s fingerprints provided a match with British records in respect of an applicant named G.A., with a date of birth of 6th June, 1978, claiming Nepalese nationality. That person had applied for asylum on 16th December, 2002, in the United Kingdom which was refused on 24th January, 2003, and the appeal against that decision had been dismissed. The applicant in that case had subsequently been treated by the authorities in the United Kingdom as an absconder. 25. Clearly this new information was totally at variance with the account presented by the applicant to the Irish immigration authorities. The applicant’s date of birth in the United Kingdom made him five years older than the date of birth furnished to the Irish authorities. It was clear that he left Nepal in 2002 and had been in the United Kingdom throughout 2003. However, he denied to the Irish authorities that he had ever left Nepal. He denied ever seeking asylum anywhere else. In effect, he had been at large in the United Kingdom for some time after 2003. The applicant’s entire and elaborate story about his life in Nepal from 2002 to 2005 was contrived. His story was that he had been approached and intimidated by Maoists in September/October, 2002 and three times thereafter. His claim to have lived in Nepal until May, 2006 before travelling to India was entirely untrue, as was his claim to have tried to register in a refugee camp in Nepal in 2006. 26. When faced with this information the applicant swore a replying affidavit on 28th February, 2013. He admitted that in August 2002, before he went to the United Kingdom, he had attempted to enter Ireland at Shannon airport. He now said that he travelled from Delhi to Moscow and from Moscow to Shannon, where there was a refuelling stop before a flight to Argentina. He said that this had been arranged by an agent who eventually organised his travel to the United Kingdom and who had been paid by a former Ghurkha (who was his former employer in Nepal). He said that he had travelled as part of a Tae Kwondo team and the agent’s plan was for the group to disembark in Shannon, but this was not permitted and they continued on the flight to Argentina. After a week in Argentina they returned to Delhi where they remained until a subsequent successful entry into the United Kingdom. 27. At para. 5 of his affidavit the applicant explained how he came to be in the United Kingdom:-
6. On arrival at Heathrow, before we got to immigration control, the agent took all of the passports back from the group and all of us claimed asylum. I was asked by the authorities from where I had come and I told them Nepal. I was then assigned an interpreter to assist me with making any asylum application and I told them I was Bhutanese and he advised me that it would damage my case if I said I was Bhutanese having said already that I had come from Nepal and I briefly told the authorities at the airport that I had a problem with the Maoists in Nepal. I was then assigned to a hostel and when I got there I was directed by other asylum seeker residents at the hostel to a person who could provide me with an asylum story. This man advised me that it would damage my case if I told the truth and now said I was Bhutanese and I paid him £60, and he gave me a story which centred around being targeted in Nepal by the Maoists. I never told the UK authorities at any stage that I was Bhutanese. 7. My asylum application in the UK was rejected after a number of months and I believe that there was an appeal made by the solicitor acting for me which was rejected, but I am not sure about the details of that appeal. I believe that I got a letter advising me of deportation from the UK some time in 2004 but I cannot remember when and when I got this I went to ground and disengaged from interaction with the authorities working intermittently on the black market so as to avoid detection by the authorities as I was extremely frightened that I would be returned to Nepal. For ethnic Nepalese from Bhutan living in Nepal without any papers, recognition or protection, life is extremely difficult. I stayed living in hiding in the UK until I came to this State in November, 2006 when I applied for asylum and told the authorities here when doing so that I was from Bhutan and my history there. I came here by boat to Belfast and by bus to Dublin.”
30. It is now clear that the applicant having failed in his application for asylum in the United Kingdom and having pursued all legal avenues in the United Kingdom available to him, remained illegally in the United Kingdom and then travelled illegally to Ireland in order to avoid deportation from the United Kingdom. The lies he told in respect of his story do not stem completely from the lies he decided to tell the United Kingdom immigration authorities. They arise from a deliberate intention to conceal from the Irish immigration authorities the fact that he had the benefit of the full asylum application procedure in the United Kingdom, a member state of the European Union. That meant that he had to invent a new story to cover the period from 2002 to 2006, every element of which was a lie. 31. It is an important feature of this case that the decision reached by the first named respondent was on the basis to a large degree of the account given by the applicant of his experiences in Nepal over a period of fifteen years, for four of which he was not in Nepal. The applicant gave an account of being approached on approximately four occasions, three of which were alleged to have occurred at a time when he now admits he was in the United Kingdom. The story he gave of being employed as a chef for a period during which his employer was taken away by the Maoists and he lost his job was a lie. His story about sleeping on the streets of Kathmandu was also a lie. The Refugee Applications Commissioner and the Tribunal were invited to arrive at a decision and did so on the basis of a story, a substantial part of which was a complete fiction. 32. The legal issue argued before the court on behalf of the applicant concerned the proper consideration of the applicant’s asylum application. The applicant was treated as “stateless” having been deprived of Bhutanese nationality. It was accepted that this was so by the Tribunal and the issue arose as to how his claim for refugee status should be determined. The Tribunal decided that it must do so by reference to the place of “habitual residence” of the applicant in accordance with the provisions of s. 2 of the Refugee Act 1996, which defines a refugee as:-
33. Further submissions were made to the court in respect of the manner in which the Tribunal addressed the facts in the case. 34. Therefore, the court is satisfied that the untruths told by the applicant materially affected the consideration of his story by the Refugee Applications Commissioner and the Tribunal and clearly affected the acceptance of aspects of his story in the decision rendered by the Tribunal. The determination of facts concerning his country of origin and/or place of habitual residence and what happened to him in those countries was central to the issues canvassed before those two bodies. Decision 36. An applicant, when seeking leave to apply for judicial review, must act in good faith and disclose all material facts to the court. The court is satisfied that this obligation extends up to the time of the full judicial review hearing. If the court has been misled or an applicant fails to disclose material facts relevant to the applicant’s claim, the court may exercise its discretion to dismiss the claim. The exercise of that discretion depends on the facts of a particular case and the legal issues which arise. The court is satisfied that there has been a complete lack of candour and good faith by the applicant in the course of these proceedings. 37. The applicant, without the intervention of the respondent, would happily have allowed the High Court to proceed to determine his application on the basis of incomplete and false information about his previous application for asylum in the United Kingdom and other facts which were clearly and belatedly admitted to be untrue. This demonstrated a complete lack of good faith and truthfulness by the applicant. The court is satisfied that these matters are directly relevant to the consideration by the court of the grounds upon which relief is sought and the facts underlying the legal arguments submitted to the court in the course of the hearing (see G.O. (A minor) v. Minister for Justice [2010] 2 I.R. 19 at para. 53, per Birmingham J. and O.O. & Ors v. Minister for Justice, Equality and Law Reform [2007] IEHC 275, pp. 16-18 per Peart J.). 38. Further, the court is satisfied that the first named respondent is prejudiced by this lack of candour and untruthfulness because it was not informed that the applicant had made a prior asylum application which had been rejected in the United Kingdom. This would have had its own adverse consequence for the application. In addition, the facts advanced by the applicant in respect of which the determination was made by the Tribunal, consisted of matters which were clearly untrue in relation to the applicant’s personal history, particularly between the years 2002 and 2006. The fact that these matters are now known to be untrue could also have affected the determination of the credibility of the applicant in respect of other facts determined by the Tribunal, including facts concerning his alleged country of origin. It is entirely unfair that the Tribunal should now be required in those circumstances to answer a challenge as to the lawfulness of its decision on the grounds advanced. 39. The court is also satisfied that it would be entirely unfair of the court to grant leave to apply for judicial review of a decision which the court now knows is based on untruths relating to matters which are central to the issues sought to be canvassed in this application. 40. The court is, therefore, satisfied that the applicant is not entitled to the relief claimed by reason of the applicant’s lack of candour and untruthfulness in the presentation of this application. The court is equally open to the application to dismiss the proceedings as an abuse of process for the same reasons but that would not quite encapsulate the extent to which the decisions of the Refugee Applications Commissioner and the Refugee Appeals Tribunal were affected by the applicant’s untruths. Therefore, the court, in the exercise of its discretion, will dismiss this application for leave to apply for judicial review on the basis of lack of candour and good faith for the reasons set out above.
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