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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> K. -v- Refugee Appeals Tribunal & Anor [2007] IEHC 397 (30 November 2007) URL: http://www.bailii.org/ie/cases/IEHC/2007/H397.html Cite as: [2007] IEHC 397 |
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Judgment Title: K. -v- Refugee Appeals Tribunal & Anor Composition of Court: Clark J. Judgment by: Clark J. Status of Judgment: Approved |
Neutral Citation Number: [2007] IEHC 397 THE HIGH COURT JUDICIAL REVIEW [2006 No. 291 J.R.] BETWEENM.K. APPLICANT AND THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDANTS JUDGMENT of Ms. Justice Clark delivered on the 30th day of November, 2007.1. This is an application for an order to extend the time within which to bring an application for judicial review pursuant to s.5(2)(a) of the Illegal Immigrants(Trafficking) Act, 2000 and for leave to quash the decision of the Refugee Appeals Tribunal which was notified to the applicant on the 31st January, 2006. The time for bringing such an application expired on the 13th February, 2006. These proceedings were issued on the 10th March, 2006. Section 5(2) of the Act of 2000, provides:-
2. It has been determined by the Supreme Court in G.K. v. Minister for Justice [2002] 2 I.R. 418 and C.S. v. Minister for Justice [2005] 1 I.R. 343, as had earlier been held by the High Court in Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561, that when deciding such an application to extend time, some consideration of the merits of the arguments proposed to be advanced is appropriate to the court’s decision. The applicant must have an arguable case before the application to extend time will be considered. 3. What constitutes an arguable case has been defined in G. v. DPP [1994] 1 I.R. 374 by Finlay C.J. as where:-
(c)…on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks. and finds that the applicant does not have an arguable case in law for judicial review and therefore the determination of the extension of time is unnecessary. 5. To see this decision in context it is necessary to outline some of the facts which preceded this application as the case was determined on the issue of credibility. M.K, the applicant, sought asylum in the State on the 4th May, 2005, on the basis that he was persecuted as a member of the Berti tribe living in the village of Armo, in the western Darfur area of Sudan. In his application form, which was completed in Arabic and translated into English, he claimed that he was born on the 15th June, 1984, that he was recently married to a wife who was seventeen years old, had no children and was a shepherd by occupation. He claimed that he left Sudan on the 18th March, 2005, having paid seven million shillings to an agent. He arrived in Dublin Port on the 3rd May, 2005. His stated reason for seeking asylum was race. 6. In his later narrative in the questionnaire provided by the Office of the Refugee Applications Commissioner (ORAC) he described persecution at the hands of the Janjaweed militia who captured him and kept him as a slave for approximately six weeks. He described how during a period of intense gunfire people were running towards the noise and he noticed that the officer who had maltreated him was not around so he escaped and returned to his village. He said that two weeks later, on the 17th March, 2005, his village was attacked and burnt out by the Janjaweed. His brother and sister were killed in the attack. He lost all his belongings including his birth certificate. He then decided to escape to a safe place outside Sudan through Port Sudan. 7. This later form at para. 26(a) contains the questions which are set out below together with the applicant’s answers:-
Q. 39. What travel arrangements did you make and how did you make them? Did you have to pay anyone and how much did you pay? Answer: I went to Port Sudan and met a fellow called Anwar Mohamed Adroub and paid him 700,000 Sudanese dinar.” “We all went out to see what was going on. There were no guards and it was my chance. I dashed out and ran away amidst the commotion and went back to the village of Armo.” He said that did not see any other prisoners there during the six week period of his detention. Everyone was wearing green uniforms but he did not know to which military grouping they belonged. His jobs consisted mainly of cleaning floors and washing clothes. He described how he was taken to the camp blindfolded so he did not know where it was located and said he was able to find his way back to his own village because as a shepherd he knew the area very well. When he walked for a while he started to see some landmarks that he identified. He then described an attack on his village where it was totally burnt down and many people were killed including his brother and sister and his home was destroyed. He described that in the middle of the chaos he saw a lorry moving out of the village and he jumped onto the lorry which took him to a neighbourhood in the city of Thalinja. He said that the lorry was owned by his father, a fact which he had not known when he jumped on it. In fact his father was the lorry driver and he took him to a friend of his and advised that he should go to a safer area because his village was no longer safe. His father’s friend knew someone who traded in cattle from a different area and he said that he would take him to a safer place for a certain amount of money. His father paid the money; he was put in a lorry with sheep and other people. The lorry journey took about six days. They took him to an area called Port Sudan. He paid 700,000 dinar for the journey. 9. When asked how he did not know that the lorry was owned by his father he answered:-
10. The process by which a person is declared to be a refugee is determined by statute. Following a request for asylum to the immigration authorities or to the Minister for Justice, the applicant is required to fill in a number of standard application forms. The purpose of these forms and the interview which follows some time later is to recognise and protect those applicants who, under the Refugee Convention, have an objective fear of persecution in their home country and cannot be relocated to another safe part of that country. It is also a process for filtering out genuine refugees entitled to protection and asylum from those who seek to enter the country for economic or other reasons and who utilise the system illegally to enable them to stay. 11. The asylum process is designed to be user friendly and forms are available in several languages. There are guidelines for the completion of the questionnaire and the applicant is directed towards the assistance of professional legal advisors in the Refugee Legal Service where a free phone number is provided together with an information leaflet which includes details on legal advice. The applicant is reminded that:-
12. The applicant is told in a form described as “Information regarding your interview for refugee status” that:-
15. In reviewing the notes of Ms. Bell’s interview it is obvious that she had some knowledge of the geography of the western Darfur area. She raised specific basic questions in relation to the size of the village of Armo and its location relative to other villages and towns in the area. She sought to establish where Armo was and posed questions about whether for example it had a hospital and where the nearest hospital was located and whether there were rivers or mountains nearby. She asked how far the large town of Nyala was from the village and the direction in which Armo village was to be found in relation to Nyala or Thalinja, the town described by the applicant as having the nearest hospital. The applicant was asked questions in relation to s.11B of the Refugee Act, 1996, as inserted by s.7 of the Immigration Act, 2003, and in particular about his flight from Darfur and his journey to and arrival in this state and other core credibility issues.
He states while attending to his sheep a group of armed Janjaweed appeared from nowhere and attacked him. He states that he was blindfolded and brought to a camp where he was held against his will. He describes the camp as a school like building surrounded by tents. He was kept in solitary confinement for a week and after that he was let out on a daily basis and forced to clean the camp.” 20. Mr. Khaled appealed this decision on numerous grounds both factual and legal. He was represented by the Refugee Legal Service at the oral hearing which took place on 8th December, 2005. The Tribunal member informed the applicant at the commencement of the hearing that the overriding concern was to ascertain as much information concerning the flight from the country of origin and the inability to return. The applicant was also told that if his credibility fell to be determined, the Tribunal would have regard inter alia, to the provisions of s.11B of the 1996 Act. Submissions were heard from the applicant, and the presenting officer highlighted the unusual aspect of the applicant’s travel arrangements to Ireland and resubmitted the s.13 Commissioner’s report which outlined that he alleged that he arrived in the state through Dublin Port but was unable to explain how he entered without identity documents. He also alleged that he changed ships at sea having first boarded a vessel at Port Sudan. Having been alerted that flight, inability to return and credibility were the main issues his appeal commenced. The appellant was subsequently allowed an opportunity to furnish further country of origin information especially on the Berti tribe. 21. The decision of the Refugee Appeals Tribunal member was based on the evidence adduced at the oral hearing, the application forms and the written record of the interview of the 8th September, 2005, the further country of origin information, the s. 13 report of the Commissioner and the notice of appeal. 22. The appeal failed. The decision of the Refugee Appeals Tribunal indicates that the Tribunal member did not accept the basic credibility of the applicant. He noted that the applicant had furnished country of origin information which was fairly minimal and related to an extract from a learned tome on the tribes of Africa containing a small entry on the Berti tribe together with some information from the legal research department of the Refugee Legal Service to the effect that they were unable to locate the village of Armo on any map. The research documents furnished indicated that the Berti tribe were fairly scattered and living in villages of no more than 100 members, though the applicant alleged that his village had a population of between 1,000 and 1,300 people. 23. In reviewing the reasoned decision of the Refugee Appeals Tribunal it is clear that the finding that the applicant was not credible was supported by evidence. The Tribunal member who had the advantage of hearing and seeing the applicant, outlined several reasons for finding him not to be credible. He found it difficult to believe that a young man would have fled his village and left the country without first checking up on other members of his family and especially his young wife. He found it difficult to believe that the applicant would not have waited in another part of Sudan to check up on his family. He did not find the description of his return to his village after his alleged first capture by the Janjaweed credible. In this context he said that there was no reason to suggest that he could not have escaped persecution from the Janjaweed in Thalinja or in Port Sudan as country of origin information indicates that persecution arises in remoter parts of Darfur, particularly in western Darfur. It is clear that the applicant was not found to be a credible person in relation to his described experiences and his escape across Sudan or arrival in the state by ship without papers. 25. These are the arguments advanced for judicial review and the background in which the applicant seeks to extend time. The delay is a period of 24 days. The reason offered for the delay was that following the adverse decision of the Refugee Appeals Tribunal, the Refugee Legal Service was unable to provide any further assistance and notified Mr. Khaled that it was open to him to seek advices of a private practitioner. He averred that on receipt of the decision he was “determined to challenge it in any way possible”. Because of his particular living conditions as an asylum seeker it took some time to obtain the name of a solicitor and to receive his file from the Refugee Legal Service and then to obtain an opinion from counsel and that this delay caused him to be out of time. 27. Both parties agreed that C.S. was the standard case on extension of time. I was also referred to the decision of the Supreme Court In Re. Article 26 and the Illegal (Trafficking) Bill [2000] 2 IR 360 and the arguments accepted by the Court relating to the special difficulties which non-nationals may be presented with in accessing the courts and which would be recognised and remedied by the residual discretion of the court to extend the time to apply for leave where the applicant shows ‘good and sufficient reason’. 28. The question of extension of time was again considered by the Supreme Court in S. v. Minister for Justice Equality and Law Reform [2002] 2 IR 163. In that case the Court held, in allowing the appeal and extending time, that the stringent time limit in s.5 of the 2000 Act was balanced by the court’s discretion to extend time where there was good and sufficient reason, such good and sufficient reason to include the merits of the case. 29. As the applicant did provide special reasons for the delay in accessing a solicitor, these reasons could perhaps warrant exercising discretion in favour of an extension of time but only if the applicant had demonstrated an arguable case. He has been unable to present even prima facie arguable grounds for impugning the decision of the Refugee Appeals Tribunal as the question of lack of credibility blights all other aspects of the case. 30. There was no transcript of the appeal or even a solicitor’s note of evidence furnished. It has been necessary therefore to rely on the contents of the appeal file, the appeal decision and the applicant’s affidavit to determine what happened at the oral appeal. I have fully and carefully considered the process of the appeal and all the documents furnished. It could not be said that the applicant failed in his appeal because the tribunal member based his decision on the failure of the applicant to relocate within Sudan although specific information was given to the applicant and his representative at the commencement of the hearing that the main issues to be addressed were flight, inability to return and credibility. The appeal decision was based on obvious discrepancies in the applicant’s description of his origins and his flight. It is difficult to ignore the finding of lack of credibility in the applicant’s narrative, especially in relation to his flight from his village and the journey to Port Sudan and thereafter I cannot find any failure or defect in the process nor can I find that the process failed to operate under the rules of fairness and justice. It seems to me that the evidence, taken as a whole was reasonably capable of supporting the finding that the applicant was not credible when he asserted that he was a victim of persecution. 31. Country of origin information furnished indicates that the main victims of the Janjaweed and other government sponsored persecution are the larger tribes living in the Darfur region but that there have been reports of smaller tribes, including the Berti being targeted with the geographic broadening of the conflict. There was no country of origin information supporting the contention made by the applicant that as a member of the Berti tribe, he would be persecuted by Arabs anywhere in Sudan. 32. The Tribunal member’s decision was not that the applicant should have availed of relocation but rather that he had not established persecution. While the expression of the Tribunal member’s opinion relating to relocation could be mildly criticised as this aspect of the case was minimally canvassed at his initial interview, the expression of opinion should be seen in the context of the overall facts of this particular case where the applicant stated that he as a member of the Berti tribe and therefore a black, as opposed to an Arab Sudanese, would be persecuted no matter what part of Sudan he lived in. While it is true that there was no country of origin information to support an opinion on relocation, it is important to note that this opinion was not in any way determinative of the ultimate decision to refuse asylum status and where many reasons were outlined in the original Commissioner’s decision and then on appeal by the Refugee Appeals Tribunal. I am satisfied that the core decision was a finding that the applicant was not credible in his assertion that he was a victim of persecution by the Janjaweed. In those circumstances, the opinion or comment that he could have escaped persecution by moving to Thalinja or Port Sudan was irrelevant and had no bearing on the decision. Unfortunately, the applicant was found not credible on more basic grounds and the application for an extension of time to seek leave to bring judicial review fails. |