FO 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:[2014] IEHC 123
Nature of Proceedings:Judicial Review
Judgment Date/s:31 Jan 2014
Judge:O’Malley J.
Category:Refugee Law
Keywords:Asylum, Country of Origin (Safe), Persecution, Refugee
Country of Origin:Afghanistan
URL:https://www.courts.ie/acc/alfresco/51d7377f-7996-45cd-ac33-6a4c18793bb7/2014_IEHC_123_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:

The applicant claimed to be a national of Afghanistan and to fear persecution there on two bases. He said that his father had worked for the Taleban who wanted him to act as a suicide bomber. He underwent training for that purpose in a madrassa in Pakistan, but then changed his mind about it, and left a house in Kabul where he had been sent in preparation for the attack. He therefore feared persecution from them. In addition, he feared persecution from the Afghan authorities on account of his connections to the Taleban, whom he said had arrested his father. He travelled to Ireland via a number of countries, including Greece, where he had been briefly detained by the police.

The Refugee Applications Commissioner recommended that he not be declared a refugee. A number of findings were made which adversely affected his credibility. It was considered that he had had the opportunity of claiming asylum in Turkey and Greece and that his failure to do so was not consistent with the actions of a genuine refugee. He could also have claimed asylum in London and Belfast but chose to come to Ireland in the belief that it was easier to get asylum. It was also considered implausible that the applicant’s father would not have known that the madrassa which the applicant attended would have been used to train suicide bombers and that the applicant did not tell his father that he had been asked to become a suicide bomber, notwithstanding that he had been in telephone contact with him on five occasions. It was also not considered credible that he would have had English lessons in the madrassa or that the person from whose house in Kabul he had applicant escaped would have informed the police of his activities. Lastly, it noted that the name on the membership card of a Taleban-affiliated body submitted by him was not the same as his own name.

He appealed unsuccessfully to the Refugee Appeals Tribunal, whose decision he challenged by way of judicial review. The Tribunal adopted the findings made by the Commissioner on the applicant’s credibility. It took the view that s. 11B(d) of the Refugee Act 1996 was relevant given his failure to claim asylum in any of the countries he passed through en route to the State. It also did not accept that, even if his story were true, he would face persecution from either the Taleban or the Afghan authorities, and it noted that the country of origin information submitted by him simply supported a generalised fear arising from the poor security situation in Afghanistan.

The High Court quashed the Tribunal’s decision.

Reasoning:

The applicant had complained inter alia that there were two material errors of fact in the Tribunal’s decision. First, it was said to have erred in recording that his fear in relation to the Afghan authorities arose from the fact that he had “run away from the country”, whereas he maintained that he feared being arrested, imprisoned and ill-treated because they would have known of his connections with the Taleban and his involvement in a planned attack. He said that they had come to arrest him before he left the country and had arrested his father instead. He also argued that there was no finding in the decision in relation to the membership card. Secondly, he complained that the Tribunal had erred in stating that the Greek police had given him an address at which he could claim asylum. He also contended that, having regard to problems in the asylum system in Greece and caselaw of the Court of Justice and the European Court of Human Rights thereon, he ought to have been considered to have given a reasonable explanation for not having claimed asylum in Greece. The applicant also impugned as unreasonable the findings that his father would have to have known that the madrassa would be training students to be suicide bombers and, secondly, that it was not credible that he could not have told his father about it on the telephone.

The High Court disposed of the matter on a narrower basis. It concluded that the Tribunal had erred in its effective application of s. 11B(d) of the Act of 1996. The court adopted the view of the High Court (O’Keeffe J.) in AMK v. Refugee Appeals Tribunal [2012] IEHC 479 that the failure of an asylum seeker to apply for asylum in the nearest safe country or in the first safe country to which he fled was not a bar to refugee status per se and was not necessarily inconsistent with a genuine fear of persecution, and that, in theory, asylum seekers were entitled to choose their country of asylum. The court took the view that s. 11B(d) was applicable only where an applicant claimed that Ireland was the “first safe country” in which he or she had arrived since leaving the country of origin.

The court also held that there was no evidence to ground the assumption that the Greek police had directed the applicant to a place where he could claim asylum there. It noted that the applicant had denied that this had occurred and had maintained that the police had told him to leave the country and given him an “exit paper”. The court held that the Tribunal had not analysed the credibility of those statements, which were consistent with the reported practices of the Greek police as outlined in the EU and ECHR caselaw. It also considered that the Tribunal had not considered his reasons for failing to claim asylum in the United Kingdom, bearing in mind that the British authorities’ policy was to return such persons to Greece.

Decision:

In the light of all the above, the court quashed the Tribunal’s decision.

Principles:

The failure of an asylum seeker to apply for asylum in the nearest safe country or in the first safe country to which he fled was not a bar to refugee status per se and was not necessarily inconsistent with a genuine fear of persecution.

Section 11B(d) of the Refugee Act 1996 applies only where an applicant claims that Ireland is the “first safe country” in which he or she has arrived since leaving the country of origin.

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