Hussein v The Minister for Justice and Law Reform

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Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2014] IEHC 130
Nature of Proceedings:Appeal
Judgment Date/s:18 Mar 2014
Judge:MacEochaidh J.
Category:Refugee Law
Keywords:Asylum, Burden of Proof, Refugee, Refugee (Convention), Refugee Law, Refugee Status, Refugee Status (Withdrawal of)
Country of Origin:Sudan
URL:https://www.courts.ie/acc/alfresco/e69eaf33-1a83-436b-b525-a37986fd1d19/2014_IEHC_130_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The appellant was a Sudanese national who had been granted a declaration of refugee status in Ireland by the Minister for Justice on foot of a positive recommendation of the Refugee Applications Commissioner. He claimed that he had fled Sudan for Ireland, arriving in it in November, 2006, after his village was attacked by Sudanese government forces and the Janjaweed.

The Minister for Justice subsequently notified him that it had come to his attention that he had returned to Sudan since being granting refugee status, suggesting that he no longer required the protection of the State, and that he had provided the Commissioner with a false identity when he arrived in the State. The Minister accordingly proposed to revoke his declaration of refugee status, pursuant to s. 21(1)(a) and s. 21(1)(h) of the Refugee Act 1996 on the basis, respectively, that he had voluntarily re-availed himself of the protection of the country of his nationality and that he was a person to whom a declaration had been given on the basis of information furnished to the Commissioner which was false or misleading in a material particular.

Attached to the notification was a letter from the United Kingdom Border Agency (“UKBA”) which stated that the appellant, under a different name and date of birth, had applied for a British visa in Khartoum on in 2006 in order to go on honeymoon to the United Kingdom, which application had been granted. The UKBA also stated that he had applied for a further visa in Khartoum in 2007, which was granted, and that he had applied for a visa in 2009, which was refused. The UKBA indicated that in 2008, he was stopped at Heathrow airport, travelling on an Irish 1951 Convention document and under the name given by him to the Commissioner, and his fingerprints were taken. The UKBA also stated that when he applied for the visa in 2009, his fingerprints were taken and matched those taken at Heathrow airport. The appellant denied the truth of the assertions put to him by the Minister. After some further correspondence between them, the Minister revoked his declaration of refugee status on the basis that he had provided the Commissioner with a different identity to that on his Sudanese passport, failed to disclose that he possessed a Sudanese passport, and applied for British visas on three separate occasions, using his Sudanese passport.

The appellant appealed that decision to the High Court under s. 21 of the Act of 1996. Whilst confirming on affidavit that his denials in correspondence were incorrect, he then advanced a different basis for his flight from Sudan, claiming that he had fallen foul of a criminal gang to which he owed money. He said that the applications for British visas had been made using a false passport, which he maintained was posted to him when he needed it by a trafficker. He admitted returning to Sudan to effect a sale of land to the criminal gang and to sign paperwork for his daughter, who was ill in hospital there.

The appellant gave oral evidence on his appeal, which revealed a number of inconsistencies with the content of his affidavit.

Reasoning:
The court held that the appellant could only succeed in his appeal if he persuaded it that the Minister had incorrectly decided to revoke his refugee status. The burden was on him to demonstrate that the Minister’s decision was incorrect. It held that, even if it were incorrect in that finding, the Minister had, in any event discharged the burden of showing that his decision was correct.

The court held that, in line with established caselaw, it was entitled to consider whether the Minister’s decision to revoke was correct, having regard not only to the material which he reviewed when making it, but also to the evidence adduced by the appellant orally and on affidavit.

The court held that it was required on the appeal to seek to identify false and misleading information and, should such be found, to enquire as to the effect of that on the appellant’s application for refugee status. It had to be satisfied that the false or misleading information would have produced a negative decision on the application for refugee status.

The court held that numerous falsehoods underpinned the appellant’s application for refugee status.

It found itself unable to believe anything he had said in relation to the Sudanese passport, because he had changed his story so often. It found that at all material times he had had, and probably still had, a valid Sudanese passport with which he had travelled extensively internationally.

It also disbelieved his claim to have had a difficulty with a criminal gang in Sudan on the basis that, had it been true, he would have informed the Minister about it during the revocation process. It also rejected his explanations for returning to Sudan.

The court held that the appellant had been granted asylum on the basis of information which was false or misleading in a material particular, in the sense that, had it been known at the time, the application for asylum would have been decided differently and, indeed, refused.

The court held that if the Irish authorities had discovered that he was using a false identity to apply for asylum, they would have refused him status.

Decision:
In all the circumstances, the court concluded that the Minister’s decision to revoke the appellant’s refugee status was correct, and it rejected his appeal.

Where a person is appealing a decision of the Minister for Justice to revoke his or her declaration of refugee status, such an appeal can only be successful if the High Court is persuaded that the Minister incorrectly decided to revoke the declaration. The burden is on the applicant to demonstrate that the Minister’s decision was incorrect.

The High Court is entitled to consider whether the Minister’s decision to revoke was correct, having regard not only to the material before the Minister when making it, but also to the evidence adduced by the appellant orally and on affidavit in the appeal.

The High Court must seek to identify false and misleading information and, should such be found, to enquire as to the effect of that on the appellant’s application for refugee status. In order for it to dismiss the appeal, it must be satisfied that the false or misleading information would have produced a negative decision on the application for refugee status.

Principles:

Where a person is appealing a decision of the Minister for Justice to revoke his or her declaration of refugee status, such an appeal can only be successful if the High Court is persuaded that the Minister incorrectly decided to revoke the declaration. The burden is on the applicant to demonstrate that the Minister’s decision was incorrect.

The High Court is entitled to consider whether the Minister’s decision to revoke was correct, having regard not only to the material before the Minister when making it, but also to the evidence adduced by the appellant orally and on affidavit in the appeal.

The High Court must seek to identify false and misleading information and, should such be found, to enquire as to the effect of that on the appellant’s application for refugee status. In order for it to dismiss the appeal, it must be satisfied that the false or misleading information would have produced a negative decision on the application for refugee status.

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