S -v- Refugee Appeals Tribunal & Anor
High Court
Judgment was given on July 15th, 2009, by Ms Justice Irvine
Judgment
The Refugee Appeals Tribunal failed to act in accordance with the requirements of natural and constitutional justice, and had regard to irrelevant considerations or failed to have regard to relevant considerations, in considering the appeal of an Afghan national against a refusal of refugee status. Leave was granted to seek a judicial review of the decision.
Background
The applicant sought asylum in Ireland in January 2005, when he was 15, on the grounds that his father was a communist and a member of the communist group Hizb-I-Islami, and that his father’s enemies were trying to kill his father and his family. His father fled the family home and the family was visited by American soldiers, who questioned him about his father, and by a local anti-communist group who threatened to kill his mother and her children. The family decided they could no longer live in Afghanistan.
While fleeing, the applicant was separated from the rest of his family and put in another car with strangers. He has not seen his family since. When he sought asylum in Ireland in January 2005 he said he was afraid to return to Afghanistan because of his fear of the anti-communist local commander. He also said he was afraid he would be sold to Arabs or sent to jail if he returned. He was afraid of the drug problem and the human trafficking problem if he was returned in the absence of his parents.
He was refused asylum by the Refugee Applications Commissioner, who stated that former Hizb-I-Islam members were not at significant risk, and that he was not even a member.
In relation to human trafficking, the commissioner relied on the fact that a programme had been set up in Afghanistan to combat human trafficking, and stated he was not in any more danger of being trafficked than any other Afghan child.
S appealed this decision to the Refugee Appeals Tribunal (RAT). In the meantime, he had been made a ward of court arising out of the occupation of St Patrick's Cathedral by Afghan asylum-seekers, in which he participated. Freda McKitterick, a social worker with Barnardos, was appointed his guardian ad litem, and she wrote to the RAT on his behalf.
She said he was intelligent, articulate and vulnerable. He was distressed by the separation from his family and lonely. She found him credible, though exhibiting symptoms of post-traumatic stress disorder.
She also said that he was nervous in the course of his first interview and spoke so fast that all his answers could not be taken down. She had spoken to journalist Robert Fisk who told her there was widespread trafficking of vulnerable young men in Afghanistan.
The RAT member found that the failure of the applicant in his first interview to mention that his cousin, also a member of Hizb-I-Islami, had been murdered in 2003 undermined his credibility. She also found that as he was not a member, he would not be of any interest to the current government, and that child trafficking was a worldwide problem and he would be no more at risk than any other child if he were returned.
The applicant brought judicial review proceedings against this decision, submitting that there was no evidence to show that the matters raised by Ms McKitterick had been considered by the member.
His counsel, Nuala Egan BL, also said that country of origin information showed that there was a real risk of danger to ongoing members of Hizb-I-Islami. Referring to his omission of reference to his cousin’s death in the first interview, she said he should have latitude as a minor, and this omission was understandable in the circumstances. In any case, he had left Afghanistan due to threats to his father. She said that as a young man without family or social supports he was part of a social group vulnerable to persecution.
Emily Farrell BL, for the RAT, said there was clear evidence that Ms McKitterick’s letter was considered, pointing to the fact that it was listed by the RAT member. She also said that the applicant was not a member of Hizb-I-Islami, and so was unlikely to be targeted.
Decision
Ms Justice Irvine said she did not accept that Ms McKitterick’s letter was not considered. She said it was not for the court to substitute its own view on credibility for that of the tribunal member.
She also said it could not be argued that the tribunal member failed to have regard to relevant considerations whilst making their decision on country of origin information.
She then considered the question of whether he qualified as a refugee as a member of a particular social group, in this case as a young man without family or community support, a category that was described as being vulnerable to trafficking by Robert Fisk. Ms Justice Irvine said there was no express consideration of this issue.
The tribunal member also failed to assess whether “children in Afghanistan” themselves constituted a particular social group at an unacceptably high level of risk for the purposes of the UN Convention.
Granting leave for judicial review, she said: “I am of the view that for the purposes of this leave application the applicant has crossed the necessary threshold in establishing grounds for seeking leave, though I wish to reiterate that the finding of this court goes no further.”
The full judgment is on www.courts.ie.
Ms Nuala Egan BL, instructed by the Refugee Legal Service, for the applicant; Ms Emily Farrell BL, instructed by the Chief State Solicitor, for the respondent.