MAB v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform and the Refugee Appeals Tribunal

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Respondent/Defendant:Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform and the Refugee Appeals Tribunal
Court/s:High Court
Nature of Proceedings:Judicial Review
Judgment Date/s:13 Jan 2014
Judge:O'Malley J.
Category:Refugee Law
Keywords:Asylum, Asylum application (Examination of an), Persecution, Refugee, Refugee (Convention), Refugee Law, Refugee Status
Country of Origin:Sudan
Geographic Focus:Ireland

The appellant claimed to be a Sudanese national, a member of the Zaghawa tribe from Darfur. He claimed that he had fled Sudan for the State after his village was attacked by Sudanese government forces and the Janjaweed. He sought asylum in Malta in June, 2005 and was granted temporary humanitarian protection. The latest extension of that status was to expire in May, 2008. In 2007 he travelled to The Netherlands and applied for asylum there. His application was refused and he was returned to Malta. He came to Ireland from Malta in June, 2007 and applied for refugee status in October, 2007. His explanation for the delay was that he was sick and needed medical treatment, but no medical evidence was submitted by him to substantiate that.
Having investigated his claim, the Refugee Applications Commissioner recommended that he not be declared a refugee. A number of adverse credibility findings were made on his claim.

The applicant contended that the Commissioner made fundamental errors of such a nature as to deprive him of jurisdiction and require the quashing of his decision. In particular, he alleged that the Commissioner applied the wrong test by requiring him to show that he, as an individual, would be a target for persecution; failed to make a finding on the question of whether or not he was a member of the Zaghawa tribe; and acted unreasonably in finding that the attack on his village was due to the general unrest within Darfur, and was therefore irrelevant to the question of future risk of persecution.

The applicant resisted the respondents’ contention that he should exhaust his appeal to the Refugee Appeals Tribunal rather than seek judicial review. He argued that the alleged failure to address the “core” of his case by making a finding on his claimed membership of the Zaghawa tribe, constituted a flaw or illegality which would be heard only for the first time on appeal, meaning that he did not have a fair initial hearing.

The court accepted that the applicant was entitled to seek relief by way of judicial review. Addressing his grounds of challenge, it held that there were two serious problems with the Commissioner’s decision.

The first problem was the failure of the Commissioner to state whether or not it was accepted that the applicant was a member of the Zaghawa tribe. The court noted that that was a core part of his claim in that, if it were believed, he would not have any case at all, but that, if it were believed, it would not necessarily determine the issue of his status, but would constitute a significant accepted fact.

The court noted that the respondents’ contended that no adverse finding had been made on his claim to be a member of the tribe in question, and that he could proceed with his appeal on that basis, relying on the decision of Cooke J. in HPO v Refugee Applications Commissioner [2011] IEHC 97.

The court did not accept that that would constitute a satisfactory resolution of the case. It considered that HPO involved a case where the appeal was on the papers only and where it was open to the applicant to argue that his claimed religion had been accepted by the Commissioner, there being no explicit rejection of it. In the instant case, however, it took the view that there had been no formal concession as to the question of the applicant’s tribal membership, simply a statement made at the hearing that there had as yet been no negative answer to it. The court held that the question of his tribal membership would therefore be determined for the first time at the appeal, meaning that there would not be a re-hearing on an issue that was central to the his claim.

Secondly, the court held that the Commissioner had fallen into fundamental error in applying a wrong test of individuality when stating that the applicant had not provided any convincing reason as to why he “as an individual” would be a target if returned to Sudan.

The court accordingly granted leave and made an order quashing the Commissioner’s decision.


Where an applicant relies upon a matter fundamental to a claim of forward-looking fear of persecution in his country of origin, a first-instance protection decision-maker like the Refugee Applications Commissioner should make a reasoned finding on whether or not that matter is accepted. Failure to do so, leaving the applicant to address it on appeal to the Refugee Appeals Tribunal, will result in that matter being determined for the first time at the appeal, and constitute unfairness to the applicant, making it likely that a court will set aside the first-instance decision.

An applicant for refugee status does not have to show that he or she will likely be targeted individually if returned to his or her country of origin in order to make out a well-founded fear of persecution.

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