IG v Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2014] IEHC 207
Nature of Proceedings:Judicial Review
Judgment Date/s:11 Apr 2014
Judge:MacEochaidh J.
Category:Refugee Law
Keywords:Asylum, Asylum application (Examination of an), Persecution, Refugee, Refugee (Convention), Refugee Law, Refugee Status
Country of Origin:Egypt
URL:https://www.courts.ie/acc/alfresco/d8c88f17-3d5b-4889-aed8-8119d099028e/2014_IEHC_207_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicant was an Egyptian national who claimed to have arrived in Ireland by boat, disembarking at Waterford Port in February, 2006, and making his way by bus to Dublin thereafter. He claimed that he did not apply for asylum immediately upon arrival in Ireland, as he was told by certain people he knew that if he made an application he would be deported back to Egypt. He worked in a series of jobs until he came to the attention of the Gardaí and was arrested and detained in Cloverhill Prison. He was charged with certain offences under the Immigration Act 2004 for failure to produce appropriate identification documents. The Probation Act was applied to him when a verified Egyptian maritime passport was presented to the District Court at the hearing. An application for asylum was made by him in November, 2010.

He claimed to have a well-founded fear of persecution in his home country on the basis of his membership of a particular social group, religion, race and political opinion. He said that he had a relationship outside marriage with a young woman who was a member of a particular tribe. She became pregnant and her family began looking for him. He managed to avoid them but he stated that he was later told that they had killed her in a so-called “honour killing.” He then fled Egypt. He also claimed that his nephew was kidnapped by his girlfriend’s family afterwards, and was still missing. He feared that if he were returned to Egypt, he would be similarly killed by his girlfriend’s family. He maintained that state protection was not available to him.

Having investigated his claim, the Refugee Applications Commissioner recommended that he not be declared a refugee, and he appealed unsuccessfully to the Refugee Appeals Tribunal, whose decision he impugned in these proceedings.

The court examined the complaints levelled by the applicant at the decision, and rejected them, upholding the decision.

Reasoning
First, the applicant complained that the Tribunal erred in fact in finding that he did not possess a passport.

His passport had actually been handed to a Garda based in a Dublin Garda station during the District Court proceedings. It had been returned to his solicitor but not been submitted during the interview with the Commissioner.

The court held that the Tribunal made a clear finding that the applicant did not produce any documentation as proof of identity, rather than a finding that he did not possess a passport. That having been adverted to in the Commissioner’s report, the onus was on applicant to address that fully in his notice of appeal. In the court’s view, the appropriate remedy for an applicant in such a situation was not to seek an order of certiorari in judicial review proceedings, but rather to make an application for re-admission to the asylum process pursuant to s. 17(7) of the Refugee Act 1996.

Secondly, the court rejected the applicant’s additional contention that the Tribunal had erred in finding that he had not provided a full and true explanation of how he or she travelled to and arrived in the State. It did not accept, for instance, that the applicant remained on a ship at all times from Egypt to Ireland over the course of a three month voyage or that he could have stopped at various ports before landing in Ireland “without let or hindrance.”

Thirdly, the court upheld the Tribunal’s adverse credibility finding on the basis of the applicant’s delay in claiming asylum. The finding was based not only on the age and life experience of the applicant, but also on his level of education and his work history, which by its nature necessitated his having a maritime passport. The possession of such a passport was indicative of an appreciation on the part of the applicant of the necessity of having the appropriate documentation in order to enter and remain in a foreign state.

Moreover, the court rejected the applicant’s submission that the likelihood of deportation (owing to low levels of recognition of refugee status) dissuaded persons like him from claiming asylum and provided a reasonable explanation for his failure to apply for asylum in a timely manner, holding that it had not been raised before the Tribunal and was unsupported by any facts or evidence.

Fourthly, the court rejected the applicant’s challenge to the Tribunal’s assessment of state protection. It held that the Tribunal rejected the applicant’s claim primarily on the basis of a general lack of credibility and was not satisfied that his explanation for failing to seek the assistance of the police was credible or reasonable.

The court also held that the Tribunal was entitled to reject as incredible the applicant’s failure to mention the serious matter of a close relative being kidnapped and not being seen for over two years until he was prompted to do so at the s. 11 interview with the Commissioner.

Fifthly, the court rejected the applicant’s complaint that the Tribunal had failed to have regard to the s. 13 report of the Commissioner and to the contents of the notice of appeal, in breach of s. 16(16) of the Refugee Act 1996.

Whilst the court was dissatisfied with the legality of the Tribunal’s finding on internal relocation, it held that the flaw was not substantial enough to justify an order of certiorari, and that the finding was also severable from the various separate credibility findings made by the Tribunal.

Finally, the court rejected the applicant’s complaint that the Tribunal failed to have regard to his psychological condition and to a medical report submitted by the Refugee Legal Service on his behalf. It noted that the Tribunal had expressly considered the medical report and quoted relevant passages from it in reaching its conclusion that it was not diagnostic and did not prove how the applicant’s traumatic state was caused. It found no inconsistency in the manner of assessment and held that it was valid.

Decision:
Having rejected the applicant’s complaints, the court therefore refused him leave to seek judicial review.

Principles:

An applicant who has been notified of the making of a s. 13(1) report by the Refugee Applications Commissioner has a duty, as an active participant in the asylum process, to take issue with any findings in it with which he disagrees on appeal to the Refugee Appeals Tribunal. A genuine mistake in failing to do so may provide an unsuccessful applicant with an entitlement to apply for re-entry to the asylum process pursuant to s. 17(7) of the Refugee Act 1996.

It will not be a satisfactory explanation for delay in claiming asylum to argue that it was motivated by fear of deportation, relying on an unsubstantiated reference to an allegedly low refugee recognition rate.

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