Ireland - High Court, 20 November 2012, J.N.A. v Refugee Appeals Tribunal & Minister for Justice and Equality, Ireland and the Attorney General [2012] IEHC 480

Facts:

The Applicant was a Somali man who applied for asylum in Ireland in June 2005. He claimed to be a member of the Reer Hamar clan, a minority group within Somalia whose members are vulnerable to attacks and serious human rights violations by dominant clan groups.

This was the second case in which he challenged a negative appeal decision by the Refugee Appeals Tribunal in the High Court.   

The Applicant initially claimed to have travelled to Ireland by air via one unknown country and to have never left Somalia before January 2005 or applied for asylum in any other country. When it was put to him that there was evidence of him having been in the United Kingdom in 2004 the Applicant admitted that this was correct, that he left Somalia in 2003 and had previously applied for asylum in the UK and the Netherlands. He denies that he ever applied for asylum in Italy.

The Tribunal agreed with the finding in the first instance decision that the Applicant is "fundamentally lacking in candour and credibility". The Tribunal found that "no convincing argument had been forwarded that the Applicant had not adduced manifestly false evidence in support of his application; that despite the alleged persecution, the Applicant's family remain in Somalia, albeit relocated, and that "this element further objectively undermines his claimed subjective fear of persecution;" that his failure to await the result of asylum applications in other EU states damaged the Applicant's credibility; and that no weight would be afforded in the circumstances to "other documents personal to the appellant presented by him.” The Tribunal concluded that the Applicant's claim was "lacking in credibility, particularly in relation to the core elements of the claim."

The Court adjudicated on whether judicial review should be granted, and the decision quashed.

Decision & reasoning:

The Applicant’s case was based on the contentions that there was a failure to analyse the risk of future persecution; that there were material errors of fact and unfair findings in the Tribunal decision; and that there was a failure to give due regard to documents submitted by the Applicant.

The Applicant contended that the Tribunal erred in law by failing to make an assessment of future risk of persecution faced by the Applicant on return to Somalia. No issue was taken with the Applicant's nationality as Somali and there was no finding that he was not from the Reer Hamar clan. The Applicant stated that there was a requirement on the decision-maker to carry out an assessment of future risk, irrespective of an adverse credibility finding.

Secondly, the Applicant argued that the Tribunal's conclusion that the Applicant's claim is undermined because his family remain in Somalia was a gross error of fact because he alleged that his family had suffered on-going persecution in Somalia since he left and that his father has been murdered and his sister kidnapped. His family had not voluntarily relocated within Somalia but rather they had been forced out of their home by a dominant clan group. The Applicant also claimed that as this matter was not considered at first instance he should have had an opportunity to respond to that proposition, and the failure to afford him one amounted to a breach of fair procedures.

Thirdly, the Applicant challenged the finding that the Tribunal afforded "no weight" to "other documents personal to the appellant" and  submitted that it is not clear what the Tribunal meant by this phrase and whether it referred to documents which were obtained by the Applicant (such as those furnished by the Red Cross who had been requested by the Health Services Executive in Ireland to carry out a tracing process of the applicant's family) or the  country of origin information generally available. If the Tribunal discarded the Red Cross information, it should have warranted careful consideration because it contained important information as to the fate of his family members. The Applicant claimed that these documents, as well as other COI documents, are evidence of his well-founded fear of persecution and that the Tribunal erred in failing to give them any weight.

The Respondent submitted that the findings of the Tribunal were validly made; that throughout the entire asylum process the importance of providing truthful and accurate information was reiterated to the Applicant. Existing case law shows that the Court places a high degree of importance on the candour and credibility of Applicants and due to the Applicant's dishonesty in relation to his passage to Ireland and previous asylum applications, the Tribunal was correct to treat his entire claim with a high degree of scepticism. The Respondent also submitted that information about the Applicant's family having relocated within Somalia was raised by the Applicant and is therefore not a new finding by the Tribunal which should have been put to the Applicant and said that decision makers should treat public documents from Somalia with a high degree of caution due to the chaotic nature of that State.

The Court held that because the Applicant feared persecution by dominant clan groups and offered evidence of his membership of the Reer Hamar group, this suggests a genuine risk of persecution and human rights violations. The Applicant’s alleged past persecution had also remained unaltered despite his untruths, and these factors were in contrast to cases where lack of candour removed the obligation for a decision maker to consider the prospective risk of harm. In the present case, there was an obligation on the decision maker to carry out a future risk assessment because his untruths did not go to the core of his claim.

The Court held that the Tribunal's finding that it would afford "no weight" to "other documents personal to the appellant" lacked clarity and the decision should have been more specific. The potential ambiguity should not be construed in favour of the Respondent's contention that Somali documents should be treated with caution, and the Court emphasised that the documents in question were produced by the Red Cross, and not Somali Authorities.

The court held that the issue of the Applicant's family members being relocated within Somalia was raised by the Applicant in his submissions to the Tribunal and consequentially no breach of fair procedures arose.

The Court decided to quash the contested decision on the basis of the failure by the Tribunal to carry out an assessment of future risk and the failure by the Tribunal to give due regard to relevant documents.

Outcome:

Relief granted: the contested decision was quashed.