Judge criticises ‘unfair and irrational’ Refugee Appeals Tribunal decision

In a written judgement published in February, High Court judge Ms Justice Maureen Harding Clark aimed withering criticism at the Refugee Appeals Tribunal over a decision it made concerning a Sudanese asylum-seeker. That a judge would criticise the appeals tribunal is not particularly remarkable in itself, but the strength of Ms Justice Clark's language suggested a considerable level of exasperation at what she described as an extraordinary, "unfair and irrational" decision, one reached seemingly more out of dislike for the individual than anything else.

AAMO, as he is referred to in the judgment, was seeking judicial review of a ruling by the appeals tribunal upholding a decision to refuse him asylum in Ireland. “Sometimes,” Ms Justice Clark wrote in her opening paragraph, “the court is called upon to review a decision which is so unfair and irrational and contains so many errors that judicial review seems an inadequate remedy to redress the wrong perpetrated on an applicant. This is such a case.”

The applicant applied for asylum in Ireland in July 2009, alleging he would be at risk of persecution in Sudan because of his work as a human rights defender and opposition party activist, as well as past persecution.

After qualifying as a doctor from Juba University in the Sudanese capital Khartoum in 2002, AAMO travelled to the war-ravaged Darfur region where he worked with aid organisation Médecins Sans Frontières between October 2004 and May 2005. While there, he documented human rights violations, in particular the incidence of widespread rape being committed by the government on the Darfuri population.

Report on sexual violence
His observations and those of other doctors would form the basis of a report on sexual violence in the region. Soon after its publication, AAMO learned he was at risk: the Sudanese authorities, sensitive as they were to any criticism of their conduct in Darfur, were displeased with his work.

Fearing for his safety, AAMO left Médecins Sans Frontières and relocated to a village in the north of the country where he worked as a GP. He continued, however, to highlight human rights violations in Darfur by holding local meetings and publishing articles online. This activity earned him several warnings and in 2008 members of the Sudanese security forces attacked his medical practice, destroying three of its six rooms.

When the International Criminal Court issued an arrest warrant for president Al Bashir in March 2009 the Sudanese authorities started to crack down on human rights organisations. They kicked NGOs out of Darfur and set upon activists. That month, members of the security services came looking for AAMO at his clinic but the doctor managed to flee, escaping to the capital.

Some days later, while grocery shopping, he was confronted by armed guards who abducted, beat and tortured him, eventually kicking him unconscious. He came to in the back of a truck just before his abductors, thinking him dead, threw him from the vehicle onto the street.

The attack was reported to the UN Mission in Sudan and picked up by Amnesty International, who contacted the applicant and eventually contacted Irish NGO Frontline Defenders, who invited him to Ireland for a period of respite.

Frontline arranged his visa and when it was about to expire AAMO applied for asylum but was refused leave to remain within the State. He appealed this decision, but in August 2012 the appeals tribunal upheld the initial negative recommendation.

In the original application, AAMO furnished some 25 pieces of documentation, including his passport, his Sudan Medical Union membership card, his degree, his certificate of registration as a doctor, a Sudanese People’s Liberation Movement statement (referring to him as his nickname A.S.) outlining his capture and assault by Sudanese security agents, as well as letters from a number of NGOs.

As the judicial review case related solely to the tribunal decision, Ms Justice Clark did not dwell on the initial recommendation only to say the Commissioner’s Office “failed the refugee assessment process abysmally”. She was equally caustic about the appeals tribunal. “The extraordinary feature of this application,” she noted, “was that the applicant’s case was documented and supported to an unusual level but was nevertheless refused on credibility grounds.”

The tribunal described AAMO’s evidence about being thrown from a truck as “transparently contrived”; it said he gave contradictory information about the origin of his nickname; it said if he genuinely feared persecution he would have immediately sought asylum in Ireland.

The tribunal also questioned his claim of torture and said he should have moved to the southern part of Sudan (now an independent state) instead of seeking asylum here. In addition, the tribunal claimed the applicant did not make a report to the police and, therefore, had failed to show an absence of state protection.

Ms Justice Clark said the applicant’s counsel, in the face of those claims, laid out his argument with “admirable restraint”. This involved accusing the tribunal of failing to consider the content of documents presented to it, and contending that its conclusions on internal relocation and state protection were irrational, unreasonable and reached in error of law.

Even though counsel for the respondents (the Refugee Appeals Tribunal and the Minister for Justice) accepted the tribunal erred in law, they still sought to argue that the decision could stand because the tribunal made three separate findings, the first and most important being that it did not believe the applicant’s account.

Giving her reasons for quashing the tribunal’s decision, Ms Justice Clark said: “When reviewing this quite extraordinary decision on the day of the hearing, the only conclusion which the court could draw for the tribunal’s decision not to recommend that the applicant should be declared a refugee is that the tribunal member simply did not like the applicant.”

She went on to say “personal dislike is not a valid reason for any legal decision and certainly not a reason for ignoring numerous documents relevant to a claim which appear to emanate from reliable sources”.

Indeed, the court expressed surprise the respondents were even defending the decision, given how it found key parts of the applicant's case were ignored and/or misunderstood or simply wrong. "For instance, the finding that the applicant could have relocated to another state [the newly constituted South Sudan] to avoid the need for international protection when South Sudan is a state with which he has no ties at all was so evidently flawed that on this ground alone the decision was legally unsound."

Documentary evidence

The court also pointed out the applicant produced documentary evidence to prove he had filed a complaint with the police following his abduction – something which the tribunal member must have chosen to ignore or simply never consider.

Ms Justice Clark added: “The court is satisfied to a very high degree that documents clearly capable of corroborating or confirming the truth of the applicant’s account were disregarded in favour of a heavy reliance on the applicant’s demeanour which the tribunal member did not favour.” In conclusion, she said the decision lacked “justice and understanding” and represented a “fundamental breach” of the Refugee Act 1996. She quashed the decision at the hearing date, remitted the appeal and granted AAMO his costs. “It is hoped” she said, “that the new appeal has been heard humanely and expeditiously.”

Contacted by The Irish Times , the Refugee Appeals Tribunal said it did not comment on individual appeals, judicial reviews before the superior courts or judgments delivered by the superior courts.


Refugee Appeals Tribunal: Recent High Court decisions
January 2014
A young man who claimed he fled his native Afghanistan to avoid being killed by the Taliban after failing to carry out a suicide bomb attack won a challenge to the refusal of his bid for refugee status.

The judge ruled the refusal was based on an incorrect application by the RAT of legal tests concerning assessment of the man’s credibility.

October 2013
A 36-year-old man who claimed he fled his native Iran fearing he would be persecuted over his gay sexual orientation and after being raped by a police officer's son there won an order quashing a decision refusing him refugee status.

The judge pointed to errors in how the tribunal member decided he did not believe the applicant was either gay or had been raped.

July 2012
A Kosovan man who claimed he would be in danger if he was sent home won an order quashing a decision to refuse him refugee status.

The High Court judge ruled the RAT failed to consider medical reports backing up the man’s claim that he was shot in the leg by Albanians.