AD (Afghanistan) v Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2015] IEHC 30
Nature of Proceedings:Judicial Review
Judgment Date/s:20 Jan 2015
Judge:Stewart J.
Category:Refugee Law
Keywords:Asylum, Asylum (Application for), Refugee, Refugee Law
Country of Origin:Afghanistan
URL:https://www.courts.ie/acc/alfresco/d2e84f26-d400-4cba-802a-624d1e379798/2015_IEHC_30_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicant claimed to be an Afghan national. He applied for asylum in Ireland on the basis that he feared persecution in Afghanistan on imputed political grounds. He stated that his father and brother were members of Hezb-e-Islami, the Islamic Party, whose membership was composed predominantly of ethnic Pashtuns. Where his family lived, most people were Tajiks and members of the Jamiat-e-Islami, a political party in government in Afghanistan at the material time. He claimed that the two parties had been at loggerheads for some time. He said that his brother, who had been abducted a year and half previously, was also a member of Hezb-e-Islami. He stated that the Jamiat-e-Islami had given false information about his father to the government, resulting in his father being arrested and taken into police custody. His brother intended to get revenge, and advised the applicant to leave because being the youngest in the family he was likely to be kidnapped. The applicant stated that he was not a member of any political party.

Having investigated his claim, the Refugee Applications Commissioner recommended that he not be declared a refugee. He appealed to the Refugee Appeals Tribunal, which affirmed the Commissioner’s recommendation on the basis of lack of credibility. The applicant challenged its decision in these proceedings.

In the course of his appeal, he submitted a number of documents to the Tribunal, namely his identity card, his brother’s Hezb-e-Islami identity card and a document issued to Afghan security personal by the Helmand Sub-Directorate of Intelligence and Situation Analysis, which named the applicant and his brother for being involved in terrorist activities, and called for their arrest.

The applicant submitted that the documentation furnished by him related to him and his family personally and therefore constituted strong corroborative evidence of his claim to be at risk from the Afghan authorities. They went to the core of his claim. He complained that, despite all that, the Tribunal had not dealt with them in its decision.

He argued that its decision was therefore irrational.

In addition, he pointed to the fact that the lack of corroborative evidence was central to the negative recommendation of the Commissioner and that it was incumbent on the Tribunal to have addressed the personal documentation submitted it in the course of his appeal. It was not appropriate in the circumstances for the Tribunal to have relied so heavily upon the conclusions made by the Commissioner.

He also submitted that the Tribunal had made a material error of fact in stating that his mother, not his brother, had been adducted He took issue with the Tribunal’s finding that he would not be at risk as he was not a member of Hezb-e-Islami. He claimed that the Tribunal overlooked the fact that he would be persecuted on the basis of an imputed political opinion and had therefore fundamentally misunderstood his claim for refugee status. He complained that the Tribunal had erred in upholding the Commissioner’s finding that internal relocation would be available to him, because the Commissioner did not have before him the documentation submitted at the appeal stage which, he claimed, showed that it was the national authorities who were seeking his arrest. Finally, he contended that the Tribunal had erred in applying s. 11B(b) to his claim, which required it to take into account for the purpose of assessing credibility whether an asylum applicant had provided a reasonable explanation to substantiate his claim that the State was the first safe country in which he had arrived since departing from his country of origin or habitual residence

The court decided to quash the Tribunal’s decision.

Reasoning:
It noted that, in the course of his appeal, the applicant had addressed criticism of the Commissioner of his lack of supporting documentation by sourcing same and putting it before the Tribunal. It held that that documentation was personal to the applicant and was, prima facie, capable of corroborating his story. The Tribunal ought to have considered it insofar as it related to his core claim and it had not done so. It held that the Tribunal had overly relied upon the Commissioner’s report and findings contained therein, and had failed to have sufficient regard to the fact that those findings had been made without the documentary evidence which had been before the Tribunal at the appeal hearing.

The court also upheld the complaint of error of fact made by the applicant.

The court held that the Tribunal had erred in finding that the applicant would not be at risk of persecution in Afghanistan because he was not a member or former member of Hezb-e-Islami. The applicant’s fear of persecution had been expressly based on imputed political opinion and, in making such a finding (and upholding one made by the Commissioner), the Tribunal had, it held, fundamentally misunderstood the applicant’s core claim.

The court also found that the finding on internal relocation was irrational and unreasonable given the lack of a reasoned engagement by the Tribunal with the core of the applicant’s claim and the documentary evidence suggesting that he was wanted by the Afghan authorities.

It also held that the application of s. 11B(b) to his claim was erroneous, as there was no legal obligation on him to apply for refugee status in the first safe country he entered.

Decision:
The court therefore granted leave and, the matter being telescoped, decided to quash the Tribunal’s decision.

Principles:

Where an application for international protection fails at first instance on the basis of lack of supporting evidence, and such evidence is furnished as part of an appeal, it is incumbent on the appellate decision-maker to take it into account when evaluating credibility. In such a situation, the appellate body cannot necessarily adopt the credibility findings made at first instance.
Evidence tending to suggest that the applicant is wanted by the authorities in his country of origin may mean that internal relocation is not possible if their treatment of him would be persecutory or cause serious harm.

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