High Court: Refugee Appeals Tribunal must reconsider application with a forward-looking assessment

About this case:

• Judgment:
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Background

The applicant, HMI, arrived in Ireland in 2008 after being detained and tortured in Sudan.

As a Sudanese national of the Bergid Tribe, HMI claims to have been born in a small village in north Darfur on 15th August 1981. According to HMI’s asylum questionnaire, he and his family left his native village because of the “waging wars” and headed to Omdurman in 2000.

HMI claimed that in May 2008 security forces arrested him on his way to work as a market trader in Omdurman; accused of being a supporter of the Justice and Equality Movement (JEM), and coming from Darfur to engage in attacks on government forces.

HMI subsequently fled Sudan and sought asylum in Ireland.

After arriving in Ireland, HMI was not successful in his application for refugee status to the Office of the Refugee Applications Commissioner, and appealed to the Refugee Appeals Tribunal.

In 2010, the Tribunal upheld the original decision after it found that HMI failed to explain the ‘manifest inconsistencies’ in his story. The Tribunal emphasised the ‘onus on every applicant to be truthful throughout the asylum seeking process’, and that HMI had failed in that regard. Further, the Tribunal was not convinced that HMI had a well-founded ‘fear of persecution on any convention grounds’.

Judicial review

In December 2015, HMI obtained leave to challenge the validity of the Tribunal’s decision on three grounds:

(1) The decision lacked clarity as numerous crucial matters relevant to HMI’s claim were not dealt with – it was unclear whether the Tribunal accepted that HMI was who he said he was or came from the claimed country of origin. In circumstances where the decision of the Tribunal is utilised by the Minister for Justice and Law Reform for other purposes (e.g. whether to grant refugee status, subsidiary protection/leave to remain on humanitarian grounds), it is of crucial importance that the decision is coherent and clear – therefore lack of clarity renders the decision invalid;

(2) No proper forward-looking test was carried out

(3) There had been insufficient analysis of HMI’s claim

Was there a finding made by the decision maker as to the applicant’s nationality and/or ethnicity?

On behalf of HMI it was contended that he was entitled to have his core claim dealt with and for it to be clear from the decision the basis upon which the rejection of his claim came about. It was submitted that it was not clear from the decision whether the credibility findings made by the Tribunal, and the view expressed as to HMI’s truthfulness, encompassed a rejection of HMI’s claimed ethnicity and of the events which he claimed led to his decision to flee Sudan.

HMI asserted that the Tribunal failed to make a finding on the core issue of whether he was targeted in Omdurman because of his Darfuri/ Bergid ethnicity.

Justice Faherty held that there was no clear determination as to whether HMI was of Bergid/Darfuri ethnicity, and that given the context of what was known to the Tribunal about Sudan, and bearing in mind the forward-looking nature of the Convention, such a determination was necessary.

Accordingly, HMI succeeded in his first challenge.

The need for a forward-looking assessment

Counsel for HMI contended that there was a failure by the Tribunal to carry out any forward-looking assessment, arguing that such an assessment was necessitated by HMI’s circumstances. Furthermore, even on the Tribunal’s own reference to the situation in Sudan as “dire”, such an assessment was merited.

Consequently, it should be manifest from the decision that a forward-looking assessment was carried out, which was not the case.

Justice Faherty stated that the ‘necessity for a forward looking assessment in circumstances where a claim of past persecution has been rejected was the subject of consideration’ in MAMA v Refugee Appeals Tribunal IEHC 147.

If Justice Faherty had found that a ‘clear determination on the applicant’s ethnicity was made and that the Tribunal did in fact accept the applicant as a Sudanese national of Bergid/Darfuri origin’, it was even more imperative that the Tribunal Member ‘engage in “reasonable speculation” as to the risk of repatriation’ as per MAMA.

Given the Tribunal’s acknowledgement of the “dire” circumstances in Sudan, once it was accepted that HMI was Sudanese, the Tribunal was obliged to clearly consider the implications of sending him back to Sudan.

Thus, the acceptance of his nationality required an assessment of what aspects of HMI’s particular characteristics might put him in fear of persecution.

HMI’s ‘asserted nationality and ethnicity was the springboard from which the forward looking assessment should have been commenced’, and there was no indication from the decision that ‘such an assessment was embarked upon or concluded’.

Consequently, Justice Faherty found that ‘nothing in the decision was posited on a forward-looking test’ in respect of HMI.

Given the failure of the Tribunal to address the consequences for HMI if returned to Sudan, Justice Faherty was satisfied that the second challenge was made out.

As a result, Justice Faherty did not find it necessary to decide upon the third challenge, as she found that the salient issues regarding HMI’s nationality and ethnicity and the requirement for a forward-looking test were sufficiently subsumed in the findings made by the court.

Conclusion

An order of certiorari was granted and the matter was remanded to the Refugee Appeals Tribunal for de novo consideration.