H -v- MJELR Anor
High Court
Judgment was delivered by Ms Justice Clark on March 4th, 2009
Judgment
A member of the opposition Darfur-based Sudanese Liberation Movement, and a member of the Fur tribe there, did not show substantial grounds required to challenge a decision of the Refugee Appeals Tribunal (RAT) to refuse him refugee status.
Background
The applicant was born in 1966, a member of the Fur tribe, who grew up in the capital, Khartoum. In 1981 his family moved to Al Fasher in the Darfur area, where he attended secondary school. From 1986 until 1990 he worked in the private sector, including for an Italian company that did work for the UN.
In 1990 he started attending university while still working, but after a year and a half he was forced to sign on with the security forces. Also that year he was detained and threatened, and released when the Italian company paid some money to his abductors. His father was arrested and detained for a year and a half. From 1990 he was self-employed.
In 2003 he joined the SLM and was involved in printing SLM leaflets and distributing reports from Human Rights Watch and other organisations. In March 2006 his house was attacked and leaflets seized. He managed to escape and fled to Libya, and from there to Ireland. His wife, father, two sisters and three brothers remain in Al Fasher.
When he arrived in Ireland he applied for asylum at the Office of the Refugee Applications Commissioner (ORAC). He had a letter from the chairman of the Italian office of the SLM confirming his active membership of the organisation.
The ORAC official said that the Home Office Operational Guidance Notes (OGN) on Sudan advise that low-level SLM members are not subject to persecution outside Darfur, but he did not agree. ORAC refused him asylum on a number of grounds, but particularly stating that the option of internal location within Sudan could have been explored.
He appealed to the RAT with additional information, including a statement from a Sudanese Doctor of Anthropology in NUI Maynooth, with details on the Fur tribe in that region of Darfur, and confirming his membership of this tribe.
The RAT upheld the ORAC decision. The tribunal member particularly relied on a Home Office OGN of November 2006 which stated that there was no evidence that low or middle-level activists of the SLM were likely to come to the attention of the Sudanese authorities in Khartoum, stating the grant of asylum in the UK would not be appropriate.
The tribunal member found that a person involved in the publication and distribution of leaflets could not be regarded as a leader and therefore likely to be persecuted, noting that other members of the applicant’s family remained in Darfur.
The applicant’s counsel said that the RAT member had focused on one aspect of the OGN note, pointing out that it also stated: “Students, educated persons or influential members of a tribe or community” ran a risk of persecution, and that people associated with the SLM who were regarded to be “intellectual” by the authorities were likely to face persecution both in Darfur and in Khartoum, and that such people should be granted asylum.
Counsel for the State submitted that the applicant did not fall within the categories of a person who might come to adverse attention of the authorities in Khartoum, as he was not a prominent member of the Fur tribe or the SLM. He had also failed to reach the threshold of “substantial reason” set out in the Illegal Immigrants (Trafficking) Act 2000.
Decision
Ms Justice Clark said that the Act required that there should be substantial grounds to justify quashing the decision of the RAT.
The applicant was arguing that the RAT member was relying on a part of the OGN. No inference could be drawn from his reliance on passages deemed relevant to the appeal and to the issue of internal relocation, rather than other passages. What was at issue was whether this reliance on that passage was fair in all the circumstances.
After describing his political activity, she commented: “All of this partisan activity was clandestine and confined to Al Fasher, and is not indicative of a high profile or prominent position in the SLM. The Tribunal member considered the option of relocation in this context. That being so, there can be nothing either unreasonable [or] irrational in his reliance on the paragraph of the OGN contained in the report . . .
“The general thrust of the report is undoubtedly as found by the Tribunal member.”
Referring to the section of the OGN stating that people regarded as intellectuals were likely to be targeted by the Khartoum authorities, she said: “[The applicant] may well be considered a relatively educated person in his community, having been a part-time student for a brief time in 1990, but it is difficult to envisage that this equates to an ‘intellectual’ and a risk category to the Sudanese government.”
She said he was aware that the question of re-location was relied upon by ORAC, and he made no submissions on it at appeal stage. When the matter was put to him at the oral appeal he said he would have to hide in the capital, asking: “What kind of life is this?” He had asserted that every member of the SLM was at risk, but had not submitted country-of-origin information to support this.
The RAT assessment was both reasonable and rational, and leave for judicial review was refused.
The full judgment is on www.courts.ie.
David O’Neill BL, instructed by James Watters Co, Arran Quay, Dublin, for the applicant; David Conlan Smyth BL, instructed by Chief State Solicitor, for the Minister