High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M.G.D. -v- The Refugee Appeals Tribunal & Ors [2014] IEHC 566 (27 November 2014)
URL: http://www.bailii.org/ie/cases/IEHC/2014/H566.html
Cite as: [2014] IEHC 566
[New search] [Help]
Judgment
___________________________________________________________________________ | ||||||||||||||||||
Neutral Citation: [2014] IEHC 566 THE HIGH COURT JUDICIAL REVIEW [2010 No. 239 JR] BETWEEN M. G. D. APPLICANT AND
THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENTS JUDGMENT of Mr. Justice Barr delivered on the 27th day of November, 2014 1. This is an a telescoped application for leave to apply for judicial review seeking an order of certiorari in respect of the decision of the Refugee Appeals Tribunal, dated 31st January 2010, to refuse the applicant a recommendation of refugee status. The applicant was refused a recommendation at first instance by the Office of the Refugee Applications Commissioner (“ORAC”) in a decision dated 9th October 2009. The Commissioner also made a finding pursuant to s. 13(6)(b) of the Refugee Act 1996, namely that “the applicant made statements or provided information in support of the application of such a false, contradictory, misleading or incomplete nature as to lead to the conclusion that the application is manifestly unfounded”. As a result, in accordance with s. 13(5), the applicant’s appeal was dealt with by the Tribunal on a papers only basis, without an oral hearing. Background 3. The applicant was initially helped by a friend, who completed his questionnaire in Arabic, as he claims he can speak that language but is unable to write it. The applicant was represented by the Refugee Legal Service in making his asylum application and had an interpreter present at his s. 11 interview at ORAC which took place on the 3rd and 15th September, 2009. The applicant’s claim was rejected by the Commissioner principally on the grounds of a lack of credibility, such that it was ultimately held that his claim was manifestly unfounded. 4. The applicant appealed this decision, and written submissions were made on his behalf by the Refugee Legal Service. The applicant claimed that the Commissioner failed to take into account all relevant information, including country of origin information in reaching his findings. The applicant included the relevant supporting documentation with his submissions in this regard. The Refugee Appeals Tribunal upheld the recommendation of the Commissioner and refused the applicant’s appeal, once again citing a lack of credibility in respect of the applicant’s claims. It is that decision which is impugned in these proceedings. 5. Before turning to the substantive matters in this application, it is necessary to deal first with two issues pertaining to the applicant’s case. Extension of time 7. An affidavit has been sworn by Mary Conroy of Judicial Review Unit of the Refugee Legal Service in which she sets out the steps which were taken on behalf of the applicant to issue the within proceedings. According to Ms. Conroy, the impugned decision was sent to the applicant under cover of a letter dated 8th February, 2010. When the applicant attended at the offices of the RLS, his file was transferred to Ms. Conroy in the Judicial Review Unit. 8. Ms. Conroy considered the file and formed the view that it was appropriate to apply, as required, to the Legal Aid Board for permission to obtain counsel’s opinion. She did this on Thursday, 18th February, 2010. She was notified of the grant of that permission on the same date. Thereafter, she arranged for a brief to be prepared and to be forwarded to counsel. That brief was sent out on Monday, 22nd February, 2010. Counsel received the brief on Wednesday, 24th February, 2010, and forwarded a written opinion on the following day. Thereupon, Ms. Conroy applied to the Legal Aid Board for a legal aid certificate authorising the institution of proceedings. Such certificate was granted on Friday, 26th February, 2010. Counsel forwarded draft pleadings over the weekend and on Thursday, 3rd March, 2010, Ms. Conroy contacted the applicant and an interpreter and arranged for them to attend at the offices of the Refugee Legal Service to discuss the draft pleadings and to amend and/or confirm the contents thereof as appropriate. 9. Ms. Conroy submitted that, having regard to the internal procedures in operation within the Refugee Legal Service, the delay was neither inordinate nor inexcusable. She also submitted that none of the respondents had suffered any prejudice by reasons of the delay herein. 10. Having regard to the affidavit sworn by Ms. Conroy, I am satisfied that a good explanation has been given for the short delay in instituting the within proceedings. I will extend the time for the issuing of the proceedings up to and including 3rd March, 2010, which is the date on which the notice of motion issued. Application to Strike out the Applicant’s Claim 12. This application was based on an affidavit sworn by Ms. Katherine Bateson of the Chief State’s Solicitor’s Office on 24th April, 2014. She deposed to the fact that in the s. 11 interview and at hearing before the RAT, the applicant had maintained that he was a Sudanese national with a date of birth of 6th June, 1985, and that he fled to Libya from Sudan and remained there until 25th June, 2009, before travelling to Ireland. It was submitted that the applicant continued to maintain this at the hearing before the High Court. 13. The applicant’s legal representatives had requested certain documentation from the applicant’s file, which was thought to be in the possession of the respondents. However, it transpired that his file had been held in the Irish Naturalisation and Immigration Service (INIS) since 13th August, 2012. Subsequent to the hearing before the High Court, the applicant’s file was received by the Tribunal and the Tribunal became aware for the first time of correspondence on that file received by the INIS from the UK Border Agency dated 9th December, 2011. That correspondence stated that the fingerprints of the applicant herein matched a person by the name of Ali Mahmed, a Somalian national with a date of birth of 1st January, 1989, who was encountered at the UK Controls in Calais, France, on 22nd January, 2009, and handed over to the French authorities on the same day. 14. A letter was sent to the applicant and his solicitors giving him 15 days in which to respond to this new information. A response was sent by the RLS on behalf of the applicant by letter dated 26th October, 2012. It stated as follows:-
16. In a supplemental affidavit sworn by Mr. Walsh on 7th June, 2014, it was averred that upon receipt of the letter dated 17th August, 2012, from the respondent, a solicitor and case worker were assigned to ascertain the applicant’s response to the information supplied by the UK Border Agency. Mr. Walsh stated that it appears from the file that it was not possible to take instructions from the applicant at a consultation. Instead, they had to proceed by way of a telephone call without the assistance of an interpreter. Mr. Walsh set out content of those telephone instructions in the following manner:-
18. The fact that the applicant allowed the proceedings before ORAC, the RAT, and this Court to proceed on the basis that he had been in Libya from 20th May, 2008, until 5th July, 2009, is a very serious matter. However, having regard to the candid affidavit sworn by Mr. Walsh, I am satisfied that an attempt was made to inform the respondent of the truth by means of the letter from the RLS dated 26th October, 2012. That this account was itself inaccurate, and indeed as pointed out by Mr. Walsh was internally inconsistent, was due to the fact that instructions had been taken over the telephone without the aid of an interpreter. The essential point in that letter was that the applicant admitted to having been in Calais in 2009 prior to his departure for Ireland. He also admitted using a false name and giving a false nationality. In these circumstances, the applicant would have understood that he had made a clean breast of matters at the time that the RLS letter was sent on 26th October, 2012. 19. I do not think that there was any attempt by the applicant or his legal advisers to mislead the court. Accordingly, I refuse the relief sought by the respondent in its notice of motion dated 7th May, 2014. 20. I now turn to consider the substantive matters arising in this case. Submissions 22. The applicant submitted that the Tribunal Member has reached an irrational conclusion based on speculation and conjecture in finding that the nature of the alleged injury sustained by the applicant in escaping from his village would have been explained to him when he received medical attention in Libya. Counsel asserted that there was no evidence of any sort before the Commissioner or the Tribunal to indicate whether the nature of the applicant’s injury (and whether it was caused by a gunshot) was explained to him by medical personnel, or indeed what language such explanation might have been provided in. As such, the applicant submitted that there was no basis for the Tribunal’s finding in this regard, and the applicant quoted from the judgment of Cooke J. in I.R. v. Minister for Justice [2009] IEHC 353, where the learned judge held: “A finding of credibility must be based on correct facts, untainted by conjecture or speculation and the reasons drawn from such facts must be cogent and bear a legitimate connection to the adverse finding.” 23. The Tribunal Member’s finding in respect of the apparent inability of the applicant to correctly identify the denomination of Sudanese currency is dismissed by counsel as being made without reference to, or mention of, the submissions made by the applicant on his appeal. In this regard, it is contended that the country of origin information forwarded to the Tribunal with the notice of appeal contained information on the realities of life within Sudan, the fractured nature of that state between north and south, and the fact that the use of the new currency was not as commonplace as believed. It was submitted that the country of origin information relied on by the respondents was drafted prior to the introduction of the currency, was theoretical in nature, and set out what the Central Bank of Sudan proposed would happen. In the event it was asserted that this situation did not materialise and that the Tribunal erred by failing to have regard to relevant considerations set out by the applicant in breach of natural and constitutional justice. Counsel referred to the decision of Finlay Geoghegan J. in Bujari v. Refugee Appeals Tribunal [2003] IEHC 18 with regard to the failure of a Tribunal Member to consider an explanation offered for an apparent inconsistency, and to the decision of Clarke J. in F.H.Z. v. Refugee Appeals Tribunal [2005] IEHC 462 in support of this view. 24. The applicant makes a series of complaints about the manner in which the Tribunal Member stated, in the conclusion section of the decision, that the applicant had done “nothing to support his claim to have suffered persecution or indeed that he is a national of Sudan.” In this regard, the applicant submitted that the Commissioner accepted in his s. 13 report that the applicant was a national of Sudan and it was claimed that the applicant did not need to appeal any negative finding of the Commissioner in that regard. Further, it was submitted that if the statement by the Tribunal constitutes a finding that the applicant is not from Sudan, then it was not lawfully made and is without basis. Coupled with this, it was contended that the Tribunal Member failed to make a definitive finding in relation to the applicant’s ethnicity, despite acknowledging that the issue was at the core of his case. Once again, it was submitted that the Tribunal failed to take into account all of the relevant considerations in this regard. 25. The Tribunal Member also made certain comments in his conclusions to the effect that the applicant has none of the traditional markings of the Dinka tribe on his face. Counsel claims that if this comment constitutes a finding that the applicant was not from the Dinka tribe, then it is irrational and without evidential basis. In this respect it was submitted that short of evidence to the effect that all members of the Dinka tribe bear such markings (evidence which was not before the Tribunal) it is not open for such a finding to be made. Finally, it was submitted that the Tribunal Member failed to refer to the argument in the applicant’s written appeal regarding the possibility of his suffering prospective persecution into the future. 26. In reply, counsel for the respondent invited the court to examine carefully the testimony given by the applicant over the course of his s. 11 interview with the Commissioner, in light of the country of origin information attached to the s. 13 report, and that submitted by the applicant in his appeal. She noted that the applicant failed to mention any attack on the market on 14th May, 2008, until a Reuters report regarding that attack was put to him by the Commissioner in his second interview. The exchange led the applicant to comment: “The actual fighting took place on the 14 May 2008 and the second massive attack took place in Abyei on the 17 May 2008”. 27. Counsel for the respondent submitted that the Reuters report identified that fighting between the SAF and the SPLA broke out on the 14th May, 2008, and led to some deaths. The Human Rights Watch report submitted by the applicant also stated that mortar and artillery fire began on 13th May, 2008, and that there was fighting in Abyei market the next day. Counsel noted that the Human Rights Watch report states that at least 18 civilians were killed on 14th May, 2008, and that by 17th May, 2008, up to half the buildings in the town had already been burned to the ground. The report notes that fighting restarted on the 20th May, 2008, when the SPLA launched a fresh offensive with reinforcements, and were pushed back. The respondent submitted that there is a reference in the report to the rounding up of Darfuri traders in the market by the SAF demanding their money, but no reference to shooting or fighting taking place on 17th May, 2008. The respondent submitted that there is no reference in the report to a “second massive attack”. 28. In light of the examination of these sources, the respondent submitted that while there was clearly continuing trouble in Abyei and in what was left of the market on 17th May, 2008, and it was not as described by the applicant in making his claim. Further it is submitted that none of the documentation supplied by the applicant in his appeal corroborates his claim of a second massive attack in Abyei on 17th May, 2008, resulting in the killing of a civilian such as his mother. In this regard, counsel submitted that there was sufficient material before the Tribunal Member to ground her finding that there was nothing documenting the massive attack as described by the applicant. The respondent contended that the Tribunal’s finding clearly follows from the premise of the supporting country of origin information and cannot be characterised as irrational or unreasonable. 29. The respondent pointed out a clear inconsistency in the evidence of the applicant with regard to the manner in which he injured his leg while seeking to escape his village. In this regard, it was submitted that while the applicant claimed that he was shot in the leg in his questionnaire, at his s. 11 interview he states that he did not know whether he was shot or injured while running away. It was submitted that in the context of this inconsistent evidence, and the fact that the applicant subsequently received medical treatment, the Tribunal Member could legitimately conclude that it was difficult to understand how the applicant did not know whether he had been shot or not. The respondent submitted that this was not mere speculation or conjecture on the part of the Tribunal, but the expression of an opinion. The comments of Clark J. in A.A. v. Refugee Appeals Tribunal [2009] IEHC 445, at para. 28 of her judgment, were quoted by the respondent, to the effect that:
31. The respondent submitted that the explanations given by the applicant as to why he was unable to identify the Sudanese currency correctly were confused and inconsistent. In this respect, it was submitted that the applicant has produced no country of origin information to show that the new pound currency introduced in 2007 was not used in southern Sudan in 2007 and 2008 before his departure, or that the information which was relied on was theoretical and did not materialise. It was submitted that the Tribunal’s concerns with the applicant’s testimony were reasonable and fairly made, and that the case law relied on in submissions by the applicant has no relevance to the decision of the Tribunal. 32. With regard to the remaining claims of the applicant, the respondent noted that the issue of the facial markings of the Dinka tribe was initially brought up by the applicant who provided two different explanations for why he did not have the mark. Notwithstanding this, it was submitted that the absence of the traditional Dinka marking on the applicant’s face formed a part of the credibility findings of the Commissioner but was not challenged in the applicant’s notice of appeal, and nor did the applicant provide any country of origin information about the tradition, to support his explanations. Counsel noted that, pursuant to s. 11A(3) of the Refugee Act 1996, as amended, the burden of proof is on the applicant in the context of an appeal, and she pointed out that the applicant was legally represented at the time. In these circumstances it was submitted that it was open to the Tribunal not to accept the applicant’s explanation for the lack of a marking and such finding was reasonable and rational. The respondent submitted that there is no legal impediment on the Tribunal agreeing or disagreeing with the findings of the Commissioner based on the evidence before it. 33. Finally, it was submitted that in light of the decisions in B. v. Refugee Appeals Tribunal [2006] IEHC 237 and A.G.R.B. v. Refugee Appeals Tribunal [2009] IEHC 527, there is no obligation on a decision maker to consider whether there is a future risk of persecution if an applicant is found not to have a well-founded fear of persecution on the basis of a lack of credibility. Decision 35. The applicant had furnished a significant amount of COI dealing with the fighting that occurred in the region in May 2008. A report entitled “Abandoning Abyei” from the Human Rights Watch organisation, dated 21st July, 2008, contained the following information:-
… Several eye-witnesses who stayed in Abyei after May 14 told Human Rights Watch they saw soldiers and government supported militia set fire to houses. An eyewitness saw SAF soldiers moving through the town with AK47s burning and destroying tukuls and property. He told Human Rights Watch that while walking from the SAF barracks toward the UNMIS compound: “I saw Misseriya, some in uniforms, some in civilian clothes, burning houses. They used torches made from grass they set on fire with matches. I saw burning buildings and the tukuls near the market were all burned down.” By May 17, he said, the whole of the market and more than half the homes in Abyei had been razed to the ground. SAF and allied militia also looted and severely damaged the premises of UN agencies and NGOs, taking furniture, air-conditioners, and even removed electrical wiring from the walls. The looting continued for at least six weeks after the first fighting.” 37. The second finding of the RAT, concerned the fact that despite having received medical attention in Libya in the form of a penicillin injection, the applicant could not definitively say whether he had been shot in the leg, or had obtained that wound in some other fashion. In particular, the applicant complains that the Tribunal Member engaged in speculation or conjecture in finding that given that he had received medical treatment on 28th May, 2008, it was difficult to understand how the applicant did not know whether he was shot or not. There was no evidence before the Tribunal that the nature of the applicant’s injury was explained to him by any medical personnel. There was no evidence that the applicant could have understood the language used by the doctors in Libya. 38. In the circumstances, I am satisfied that this finding was based on speculation or conjecture as to what the applicant may or may not have been told at the time of receiving medical attention. As such, the finding is irrational and cannot stand. 39. The third contested aspect of the decision concerned the applicant’s lack of knowledge of the new Sudanese currency. The applicant submitted that the new currency was introduced by the government in Carthoun, which is in the north of the country. The applicant stated that it was not used extensively in the south of the country. The respondent pointed out that the COI produced by the applicant on this aspect referred to the old Dinar which was never introduced or accepted in the south of the country. There was COI before the Tribunal which referred to the introduction of the new currency in 2007. The applicant submitted that this was an aspirational document issued by the Sudanese Central Bank as to what would happen on the introduction of the new currency. 40. The applicant submitted that his evidence was to the effect that the use of the new currency did not materialise in the south of the country, and that he and others in southern Sudan continued to trade without reference to the new currency. This evidence was entirely ignored by the Tribunal. In so doing, it was submitted that the Tribunal acted in violation of the requirements of natural and constitutional justice by failing to have regard to relevant considerations. 41. The applicant submitted that there was an obligation on decision-makers to consider an explanation offered by an applicant for asylum for an apparent inconsistency or differing account provided to the decision maker. In support of his contention that the respondent should have considered any explanation offered by the applicant in relation to the currency issue, the applicant relied on the following extract from the decision of the High Court (Finlay Geoghegan J.) in Bujari v. Refugee Appeals Tribunal [2003] IEHC 18:-
I have concluded that on the facts of this case the tribunal member was under an obligation as a matter of fair procedures in the assessment of the applicant’s claim for refugee status to consider and assess the explanation given to him at the appeals oral hearing of the reason for which the applicant did not disclose at an earlier stage and was now disclosing the fact that his father was a Serb collaborator and that this was the cause of his parents killing and his fear of returning to Kosovo.”
The respondent, on the other hand, seeks to distinguish Bujari on the grounds that the RAT in that case was concerned with a contention of a psychological barrier which allegedly prevented disclosure of the ground at an early stage. … It may well be that if the decision maker had actually recorded a conclusion similar to the submission by counsel, it would have been difficult for the applicant to mount a challenge to it. However, the point here is that, as in Bujari, there is no evidence that the RAT decision maker actually considered the explanation. It seems to me therefore that the applicant has established substantial grounds under this heading for his challenge.” 44. The applicant also took issue with the manner in which the Tribunal stated that the applicant had done “nothing to support his claim to have suffered persecution or indeed that he is a national of Sudan”. In this regard, the applicant noted that the Commissioner had accepted that he was a national of Sudan, so that he did not have to appeal that aspect of the Commissioner’s decision. The applicant submitted that if the statement by the Tribunal constituted a finding that the applicant was not from Sudan, then it was not lawfully made, and was without basis. In addition, it was noted that the Tribunal failed to make a finding about the applicant’s ethnicity, despite acknowledging that that issue was at the core of his case. It was submitted that the Tribunal failed to take into consideration all relevant matters. 45. It was not clear whether the Tribunal was actually making a finding that the applicant was not from Sudan. It seems to me that if such a finding had been made by the Tribunal, an explanation would be required, given that ORAC in its decision had held that the applicant was from Sudan. 46. The applicant also took issue with the finding that the applicant did not have the usual Dinka facial markings. The applicant had explained at interview that he did not want to have these markings. In the absence of evidence that all members of the Dinka tribe had such markings, the applicant submitted that it was not open to the Tribunal to make the finding that he was not of the Dinka tribe. 47. The respondent submitted that the applicant had not supplied any COI about the tradition of having the markings which supported his explanation. In the circumstances, it was submitted that it was legitimately open to the Tribunal Member not to accept the applicant’s explanation for the lack of the markings and the finding was reasonable and rational. 48. The question of the applicant’s tribe was central to the case. If the Tribunal Member was going to make a finding that the applicant was not of the Dinka tribe, due to the absence of facial markings, he would have had to have some evidence that such markings were always found on Dinka men. There was no engagement by the Tribunal with the applicant’s explanation for why he did not have the facial markings. The applicant’s complaint in this regard is well made. 49. The applicant also took issue with that portion of the Tribunal’s decision which stated that he appeared to have more education than the four years that he admitted to having spent in an English school. It is not clear that any adverse finding was made against the applicant under this heading. While the Tribunal Member noted that he went to an English school but did not speak English, I do not think that this formed a major credibility finding against the applicant. 50. The applicant also submitted that the Tribunal Member did not make any finding in relation to the prospects of him suffering persecution if he is returned to Sudan. This appears to be correct. There is no forward looking test in the decision. Conclusion |
