High Court grants leave for judicial review of Refugee Appeals Tribunal decision on Sudanese asylum claim.

Neutral Citation Number: [2010] IEHC 435

THE HIGH COURT

2008 1039 JR

BETWEEN

A. A.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL AND

THE MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENTS

JUDGMENT of Mr. Justice John MacMenamin delivered the 25th day of November, 2010.

1. The applicant seeks leave to apply for judicial review of a decision of the Refugee Appeals Tribunal (“the Tribunal”) to affirm the

recommendation of the Refugee Applications Commissioner (“the Commissioner”) that he should not be declared a refugee.

Extension of Time

2. The first issue which falls for consideration is the elapse of time. The impugned decision was communicated to the applicant by

letter dated 22nd August, 2008. The time limit for challenging decisions by way of judicial review has been identified in the Statute as

being fourteen days. The within proceedings were issued on 10th September, 2008. The applicant is therefore out of time by no more

than three days. An extension of time is nonetheless required. In an affidavit sworn on 10th December, 2008, the applicant’s solicitor,

Mr. Michael Crowe avers that he was contacted by the applicant on 26th August, 2008. He was asked whether a challenge to the

Tribunal’s decision was merited. Mr. Crowe attributes such delay as occurred to the fact that counsel was not in a position to look at

the decision immediately upon receiving it by reason of the legal vacation. He states that a number of other matters had to be

clarified. The elapse of time is in itself very short. The applicant is only days out of time. I bear in mind, also, the merits of the case

which are considered later. I consider that a reasonable explanation has been given for the elapse of time and that as the judgment

indicates there are merits to the case which would justify such extension.

Background

2. The applicant is of Sudanese nationality. He maintains he is at risk of persecution if returned to that country by virtue of his

membership of the Tama tribe. This is a non-Arab ethnic group. He also claims that a man who he alleges enslaved him would pursue

him were he to return.

3. According to his narrative the applicant was born on 1st June, 1987 at Hashaba, Darfur, western Sudan. He is a single man with

little education. He cannot read or write. He states that he does not know where his parents or any member of his family can be

located. He informed the Tribunal that in 1992, at the age of five, he was brought to Alaou, a village in eastern Sudan. He was there

made to work as a shepherd for the owner of a large holding. He claims that this man was powerful and a former politician. He states

that his position was tantamount to that of being a slave; that he was beaten regularly and received little income.

4. In or about the year 2004, he was informed he was from Darfur. The applicant states he complained about his situation to the

police who took no action. According to the applicant he ran away in May 2005. A sympathetic lorry driver is said to have agreed to

take him to Libya. There he worked on a farm for approximately one year before travelling to Ireland. He arrived in this State on 13th

June, 2006 and applied for asylum.

The RAC decision

5. In a decision dated 24th August, 2006, the Refugee Applications Commissioner (“RAC”) issued a negative recommendation. The RAC

noted that there was country of origin information to the effect that mechanisms had been put in place in Sudan since the early

1990s to free slaves and that group repatriations to places of origin had taken place. The decision also cited discrepancies in the

applicant’s account relating to the nature of the complaints made to the police; the applicant’s inability to elaborate on his master’s

political status; or even his existence. The RAC also concluded that the applicant’s account as to why he did not escape earlier was

lacking in credibility.

The Appeal before the Refugee Appeals Tribunal

6. The applicant’s oral hearing was heard by the Refugee Appeals Tribunal on 30th June, 2008. In advance of the hearing, an

independent language analysis was carried out on the applicant’s speech patterns. This report concluded that the applicant spoke

Arabic to the level of a mother tongue speaker in a variety found “with certainty” in the western part of Sudan. I should note in

passing that I do not understand the report to preclude the possibility that such language patterns were to be found elsewhere in

Sudan. Thus I find the manner in which the Tribunal treated the language analysis somewhat puzzling. On the basis of the information

provided the Tribunal opined that the analysis raised a question mark over the applicant’s whereabouts between 1992 and 2005. The

Tribunal observed that it was reasonable to assume, without engaging in conjecture, that thirteen years of exposure to dialect in the

eastern part of Sudan would have manifested and superimposed itself over the first five years of the applicant’s formative life. I am

unsure as to the evidential basis for these observations. But this is not the gravamen of the applicant’s case.

7. A number of documents were submitted to the Tribunal. These included a letter from a Dr. Abdullah Osman El-Tom of the

Department of Anthropology, National University of Ireland, Maynooth, who comes from Darfur. Dr. El-Tom met with the applicant and

concluded with absolute certainty that the applicant was of Darfur origin. He also made a number of general observations on the

prevailing conditions in Sudan and referred to what he phrased as the “ugly truth” that slavery was deeply embedded in Sudanese

culture, particularly among the dominant elites who subscribed to Arab descent. Dr. El-Tom referred also to the “obstinate

appearance of slavery disguised under domestic labour”. A second set of documents was submitted to the Tribunal said to emanate

from bodies named “The Darfur Solidarity Group” and “The World Union of Tama Tribes”. These were also to the effect that the

applicant was a member of the Tama tribe from Darfur.

8. Thirdly, there was country of origin information. Importantly, this included a UNHCR position paper entitled “UNHCR’s Position on

Sudanese Asylum Seekers from Darfur”. This was dated 10th February, 2006. The paper described alleged persecution of non-Arab

Sudanese of Darfurian background both by government forces and pro-government militias. It dismissed the possibility of internal

relocation. Its conclusions may be summarised in these terms:

“In UNHCR’s assessment the threats are so widespread that it cannot be said that there is an internal flight alternative

anywhere in Sudan for asylum seekers from Darfur including for those who resided in Khartoum before the Darfur crisis.

Sudanese of ‘non-Arab’ and non-Darfurian background returning to Sudan face a heightened risk of scrutiny by the

security apparatus.”

9. During the course of the Tribunal hearing the applicant was questioned as to why he did not return to Khartoum, or avail of the

services of an organisation set up by the Sudanese government said to engage in repatriation of people to their places of origin. To

this the applicant replied that the authorities would kill him because he was from Darfur. On 26th July, 2008, after the applicant’s

hearing, but before the date of the Tribunal decision, the United Kingdom Home Office COI Service published a “Country of Origin

Information Bulletin” on Sudan. According to this, the Sudanese security forces had committed widespread human rights violations

following a May 2008 attack on Khartoum by insurrectionists known as the Justice and Equality Movement. These were a Darfur based

rebel group. The report said that, in the main, Darfurian ethnic groups had been targeted. They had been subject to arbitrary arrests,

torture and other ill-treatment. They had been held in detention incommunicado. They had been exposed to enforced disappearances

and extra judicial execution. It is argued on behalf of the applicant that the existence of the information in this bulletin effectively

changed the scene, and that it should have been obtained and referred to by the Tribunal because of its substantial bearing on the

case despite the fact that it had not been brought to the attention of the Tribunal itself (or the Minister) by the applicant’s solicitor.

10. In reaching its decision the Tribunal appears to have relied on an earlier operational guidance note of the United Kingdom Home

Office. This was dated 9th April 2008, some three and a half months before the “bulletin” referred to above.

11. This note concluded that ordinary non-Arab ethnic Darfuris were not at risk of persecution outside the Darfur states, and asserted

that it was not unduly harsh to expect them to relocate in an area in Sudan which would be safe.

12. However, this guidance note contained a disclaimer at para. 1.2 specifically referring to any additional country of origin

information which might be available at the Home Office Website. The question is whether arguably there was a legal duty on the

Tribunal to obtain, refer to or permit the applicant to make submission thereon at or before the time of the decision.

13. On this point the applicant relies first on an ex tempore leave decision of Birmingham J. entitled F.A.A v. Refugee Appeals Tribunal

(Unreported, High Court, 24th June, 2008). There, by coincidence the judge granted leave to challenge a decision by the Tribunal on

the basis that up to date country of origin information had not been considered. The document in question was the same 2006 UNHCR

position paper in Sudan.

14. In F.A.A. the Tribunal had regard to a Home Office guidance note, but not to a more recent February, 2006 UNHCR position paper.

At the leave stage Birmingham J. observed that this position paper was dated the 10th February, 2006, just a month before the oral

hearing. He found the UNHCR document had dealt fully with the specific issues in question; namely the possibility of internal location

in Khartoum. He observed “if internal location had become an issue in this case it is hard to imagine the document that is more

relevant than the UNHCR document”. The gravamen of Birmingham J’s decision in the leave application was that it was a counsel of

perfection – to say that the applicant was not a passive bystander and the onus was on him to produce a document.

- it was understandable that alternative sources were not accessed in the aftermath of the RAT Tribunal hearing

- that this was understandable particularly given that at that stage it could not have been known whether the issue of

the internal relocation would be central to the decision.

- that in the particular circumstances a delay that would otherwise have been quite unobjectionable “interacted” with the

issue of the Tribunal’s reliance on a UK Home Office guidance note, rather than the UNHCR report.

- that the issue was to be seen in the context of the overall sensitivity of the situation in Sudan.

12. However, at the substantive hearing in F.A.A. McGovern J. refused to quash the Tribunal decision. His reasoning was that the

applicant had not been believed by the Tribunal and therefore the issue of internal relocation was therefore irrelevant.

13. Counsel for the applicant in this case submits that this final decision is distinguishable precisely because here the Tribunal

accepted that the applicant may be from Darfur and did not make an adverse credibility finding as to his ethnicity. Moreover, it is

said, the issue of internal relocation was raised, relied upon and put to the applicant by the presenting officer adhering and the

applicant expressly stated he could not avail of internal relocation.

14. The respondent’s case is that by virtue of s. 11A(3) of the Refugee Act 1996, the burden of proof in an appeal rests on the

applicant. It is said a Tribunal member is not obliged to procure country of origin information after the hearing had taken place. In this

connection reliance was placed on a decision of Clark J. in M.M.A. v. Refugee Appeals Tribunal (Unreported, High Court, 12th May,

2009), also a leave application. It is true there are a number of similarities. In essence the point which arose in that case was that

the decision was made on the basis of a Home Office guidance note of December, 2005, but failed to have regard to the UNHCR

position paper of February 2006, where the conclusions of which were decidedly different. The UNHCR document had not been

brought to the attention of the Tribunal member by the applicant. While there was some uncertainty as to whether the paper was

available at the date of hearing, it was certainly in existence at the time of the Tribunal decision. Clark J. however, refused to grant

leave on the basis that the Tribunal member’s finding on internal relocation was “on the basis of reputable COI at the time” (para.

48). She added that if the situation had changed, this was a matter which should be drawn to the attention of the Minister for

Justice, Equality and Law Reform, but was not a matter that affected the validity of the Tribunal decision which could only be

assessed in the light of the information properly before the Tribunal.

15. I revert then to the F.A.A. decision at the leave stage. I am not persuaded that F.A.A. is of assistance to the applicant. It is true

that Birmingham J. rejected the proposition that it was for the applicant only to produce up to date country of origin information in

time for the oral hearing. But this argument was rejected by the court in F.A.A. solely on basis that there had been no prior indication

in advance of the Tribunal’s decision that internal relocation would be an issue. This stands in contrast to the present case, where as

was demonstrated, the issue of internal relocation had been specifically put to the applicant in the presence of his legal

representatives during the oral hearing. It is true also that the July 2008 bulletin, concerned events which occurred in Sudan between

the 10th May and 24th June 2008, which might have been in the public domain and might have been accessed by the applicant or his

representatives in advance of the date of hearing.

16. However, equally I am persuaded that there is arguably an important distinguishing feature between the legal of principles as

applied in M.M.A. and those of the instant case. I consider it arguable that a real legal distinction exists between the decision in

M.M.A. and the facts of the instant case. By virtue of the provisions of Article 8(2) of the Procedure Directive (2005/85/EC), and also

Regulation 5 of the European Communities (Eligibility for Protection) Regulations 2006, (SI 518/2006). Neither of these provisions were

opened before Clarke J. in M.M.A. and are not referred to in the judgment. It will be recollected that the gravamen of Clarke J’s

decision was based on a finding that the Tribunal member’s conclusion was on the basis of reputable country of origin information at

the time.

17. The real essence of the point is I think to be found in the provisions of Regulation 5 of the 2006 Regulations which are to the

following effect (emphasis added)

“5(1) The following matters shall be taken into account by a protection decision maker for the purposes of making an

protection decision.

(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application for

protection, including laws and regulations of the country of origin and the manner in which they are applied;

(b) the relevant statements and documentation presented by the protection applicant, including information on

whether he or she has been or may be subject to persecution or serious harm.”

18. It may also be said that this provision should be seen in the context of Article 8(2) of the Procedures Directive which provides

inter alia, that member states should ensure that decisions are taken after appropriate examination and that such states should

ensure that:-

“. . . (b) precise and up to date information is obtained from various sources such as the United Nations High

Commissioner for Refugees (UNHCR) as to the general situation prevailing in the countries of origin of application for

asylum, . . . “

19. I am not persuaded that the Procedures Directive adds anything other than context to the applicant’s case. However, turning to

Regulation 5(1) of the 2006 Regulations, I consider it arguable that under para. (a) there is an obligation on the Tribunal member to

consider “all relevant facts” as they relate to the country of origin “at the time of taking a decision”. Taking para. (a) in conjunction

with para. (b) I consider it arguable that it might be reasonable to conclude, on the facts of this case, that a Tribunal member’s

obligation actually goes further than a mere consideration of information provided by the applicant, or information obtained by the

Tribunal itself, neither of which may be entirely up to date. Arguably, the issue arises only on unusual facts. Additional factors

supporting the arguability (but no more) at this point are that it may be said that the Tribunal is an expert Tribunal often afforded a

measure of curial deference; that the onus on producing country of origin information is not solely on the applicant but also on the

Tribunal itself; that the May 2010 attacks by JEM Rebels were a major event in the Darfur conflict and might have had significant

consequences for people of non-Arab Darfuri background in Sudan and that in matters directly affecting a person such as the

applicant, there was a legal duty that the Tribunal to provide itself with up to date information as well as on the applicant. All this, it

might be argued, is to be seen in the context of Regulation 5 and in particular the obligation to consider “all relevant facts” at a time

when a decision is taken, as opposed to the time of the Tribunal hearing prior to such decision. Arguably, also, the April 2008

guidance note on this sensitive situation apparently relied on by the Tribunal member, itself, unsurprisingly, contained a warning

emphasising the need to have up to date country of origin information bulletins from the Home Office.

20. I am not persuaded that Birmingham J’s decision in F.A.A. should be read as applying only in circumstances where there is

uncertainty as to whether the issue of internal relocation would be central to a decision.

21. I am prepared to grant leave on this ground therefore.

22. I turn then to consider very briefly two further points relating to the UNHCR document.

23. It is firstly contended that it is arguable that the Tribunal member failed to consider the UNHCR paper. That organisation’s

assessment said that threats were so widespread that internal flight was not an alternative for asylum seekers from Darfur, including

for those who had resided in Khartoum before the Darfur crisis. The applicant’s case is that the UNHCR document of February 2006,

was central; that he was at risk by reason of his ethnicity; and could not relocate internally. It is claimed that the Tribunal member

failed to assess this paper either arguably or at all.

24. I do not think this point is arguable. In fact the Tribunal did explicitly consider the Home Office guidance note of April 2008. This

document explicitly considered in some detail the UNHCR paper of 2006, but ultimately rejected its conclusions. The guidance note

contained explicit reference to the UNHCR recommendations and that the UNHCR reiterated its call to all governments to refrain from

forced returns of Darfuris to Sudan. It referred to the UNHCR’s position paper of February 2006, which broadly describes the situation

in Darfur and Sudan. However, it pointed out that asylum and human rights claims were not decided on the basis of a general

situation, but based on the circumstances of a particular individual and the risk to that individual. Thus the Home Office concluded:-

“We do not therefore accept UNHCR’s conclusion based on their overview of the general situation that it is unsafe for all

Darfuris who have been found not to be in need of some form of international protection to return to Sudan.”

25. The onus of proof is on the applicant. The Tribunal has a statutory duty under the 2006 Regulations to consider country of origin

information. However, that Tribunal is not obliged to accept the information provided and may make findings contradicting it. It is true

that there is no reference to the UNHCR position paper of February 2006, however, there is reference to the Home Office guidance

note which provided a summary of that UNHCR paper. The evidential onus necessitates that the applicant must demonstrate the

evidence upon which a court might proceed is more probable than not. I do not consider it is established to the requisite standard of

proof that the Tribunal member ignored the UNHCR document or failed to have any regard at all to it. I do not consider leave should

be granted on this ground. The UNHCR report was recited and compiled in the Home Office which disputed its contents. Implicitly, the

Tribunal member preferred the Home Office’s conclusions. It was not necessary to recite each element of the decision or each

document submitted.

26. A final point is, as to whether the Tribunal member failed to provide reasons for not applying the UNHCR paper. This is quite

distinct from the first point on which leave has been granted. It has no necessary connection with the supervening Home Office

publication of 26th July, 2008. It is, in my view, a free standing point as to whether the UNCHR of February 2006 paper should have

been specifically addressed, giving reasons for its apparent rejection of its contents.

27. I think a number of points arise in this context. First the paper does not state categorically that all Darfuris from Sudan were

entitled to refugee status. It dealt with a number of matters over and above the application of the Refugee Convention itself. One

recommendation, specifically acknowledged, was that protection could be provided other than under the Refugee Convention. It

acknowledged that a state might feel unable, under its national law to grant refugee status in which case the UNHCR recommended

that a complimentary form of protection should be considered.

28. However, the operational guidance note of the 9th April, 2008, specifically addresses the position paper. It interpreted it as a

broad assessment of a general humanitarian situation in Darfur. But the author of the operational guidance note did not accept the

totality of the UNHCR document. The guidance note referred to the fact that, if refugee status could not be granted, then

complimentary protection should be afforded. Moreover, the guidance note specifically rejected the UNHCR’s conclusion that it was

unsafe for all Darfuris to return to Sudan. On that basis the guidance note concluded that a return to Sudan might be possible even

for Darfuri asylum seekers. I am not persuaded that such a position was arguably unreasonable, in the judicial review sense. It

appears to be corroborated, to some extent, by the UNHCR position paper of 2nd October, 2006, which was also contained in the

booklet of documentation submitted by the applicant to the Tribunal. There, the necessity of judging each individual case within its

own context was emphasised. It is not a situation, therefore, where there was no material before the Tribunal on foot of which the

discussion could have been recorded.

29. The general issue had also been addressed in two House of Lords decisions, Jansusi v. Home Secretary [2006] 2 A.C. 46 and A.H.

(Sudan) v. Home Secretary [2008] 1 A.C. 678. The first of these established that the issue of relocation should be assessed by

considering whether or not an asylum seeker could live a relatively normal life in the place of relocation, judged by the standards

generally prevailing in his country of nationality, rather than the country of asylum. In the second, the former House of Lords

confirmed that, while the treatment to be expected in the place of relocation need not reach the threshold of Article 3 treatment, it

should not be considered by comparison with the conditions in the country of asylum, but those in the country of origin generally.

These decisions were stressed in the operational guidance note of the 9th April 2008. Consequently, the note concluded that while

Sudanese of non-Arab background, identified through their political activity or their expression of anti-government views, might be

liable for treatment amounting to persecution, there was no evidence to indicate that the authorities would target each and every

Darfuri of non-Arab background on their return. The conclusion reached was that the applicants for asylum who claimed to be ordinary

members of non-Arab ethnic groups and feared persecution from State sponsored Arab militia groups based solely on their ethnicity in

the Darfur states were not generally at risk of treatment amounting to persecution outside the Darfur states, but that there might be

other factors present which would, for example, justify the grant of discretionary leave to remain in the United Kingdom.

30. The question is, whether the Tribunal member arguably acted “unreasonably”. The presenting officer had sourced country of origin

information on this point. The burden of proof rested on the applicant in the appeal. In the absence of further up to date information,

the presenting officer sourced what was a relatively recent operational guidance note, which was not only the most recent available,

but also specifically to took into account the contents of the UNHCR position paper of February 2006. A considerable time, more than

a year and a half, had elapsed since the UNHCR publication to that paper. The Home Office, in drafting its operational guidance note,

had taken the UNHCR document into account. The Tribunal member specifically relied on the operational guidance note of the 9th

April, 2008. Thus, while the applicant may not agree with the conclusion, the basis of the decision was sufficiently clear: the Tribunal

member based the decision on the operational guidance note which he considered contained reputable country of origin information

which had concluded there was no general risk to Darfuri asylum seekers when returned to Khartoum.

31. The obligation of a Tribunal member when faced with the selection of country of origin information is to make an assessment

overall of the content of that information (see M.E. v. Refugee Appeals Tribunal (Unreported, Birmingham J., High Court, June, 2008)).

Furthermore, the nature of the duty to give reasons should be recalled. In Pamba v. Refugee Appeals Tribunal (Unreported, Cooke J.,

High Court, 19th May, 2009), confirmed that the duty to give reasons contained in s. 16(16) of the Refugee Act 1996, as amended, is

one to give reasons for the affirmation of the recommendation of the Commissioner. It did not involve a duty to analyse each and

every piece of evidence or information before the Tribunal member. Once the applicant was aware of the reason why his case was

being rejected, the duty to give reasons was satisfied. I am not persuaded that the applicant established reasonable grounds that

there was a failure to consider the UNHCR paper or a failure to provide reasons for not applying its contents. I will refuse leave on this

ground also.