B (O) v Refugee Appeals Tribunal & Min for Justice

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Hogan
Judgment Date22 September 2011
Neutral Citation[2011] IEHC 363
Date22 September 2011

[2011] IEHC 363

THE HIGH COURT

[No. 48 JR/2010]
B (O) v Refugee Appeals Tribunal & Min for Justice
BETWEEN/
OB
APPLICANT

AND

REFUGEE APPEALS TRIBUNAL

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENTS
Abstract:

Immigration - Asylum - Judicial review - Leave - Credibility - Whether the respondent erred in the conclusions he arrived at regarding the applicant's credibility.

Facts The applicant sought leave to challenge, by way of judicial review, the decision of the respondent rejecting the applicant's asylum request. The principal ground of challenge was that the respondent erred in rejecting the applicant's claims on credibility grounds. The applicant submitted herein that the inferences drawn by the respondent were vitiated by material errors of fact and, furthermore, were not reasonably drawn. The applicant alleged as part of her claim for asylum that she was arrested and raped by the police following her participation in a demonstration of about 10,000 people in Chisinau on 29/11/01. The respondent found that as there was no mention of the demonstration in the media it was neither plausible nor credible that the demonstration had taken place. The applicant submitted a medico-legal report prepared by two physicians in support of her rape allegation. The respondent found that those reports did not "address the relative likelihood or the causes in examining it by way of the Istanbul Protocol". The applicant also alleged as part of her claim that when returning from the General Prosecutor's office a minibus belonging to the Moldovan Government deliberately collided with her car and the traffic policeman on duty refused to help her at the scene. However, the respondent found her evidence in that regard to be neither plausible nor credible. The applicant further alleged that the respondent's assessment of her claim was flawed in that the respondent failed to have regard to what purported to be a letter from the Popular Christian Democratic Party averring to the applicant's participation in a demonstration on 29/11/01. The applicant submitted that the respondent erred in the inferences he drew from the applicant's failure to provide information regarding her hometown and also submitted that the respondent erred in observing that the applicant was fleeing criminal prosecution in Moldova.

Held by Hogan J. in refusing the application for leave: (1) That the standard principles to be applied in cases of this kind were set out by Cooke J. in his judgment in R v. Refugee Appeals Tribunal [2009] IEHC 353. Applying those principles to this case, the respondent's assessment regarding the demonstration could not be faulted and he was entitled to reach the view he did. (2) The respondent considered and weighed the medical evidence and then concluded that the report did not fundamentally assist the applicant since it did not tend to show that the perpetrators of the rape were police agents. (3) The respondent was perfectly entitled to conclude that the applicant's account of the road traffic incident was implausible and unlikely.

(4) Although the respondent did not consider the letter submitted by the applicant. Having regard to the respondent's overall views as to credibility it was readily understandable why he found that letter to be of little assistance. The lack of corroboration of the facts stated therein spoke volumes as regards the authenticity of the letter and the applicant's own credibility. (5) That the respondent did not err in the inferences he drew from the applicant's failure to answer questions regarding local geography. However, he did err in making the observations regarding the applicant fleeing criminal prosecution. However, those remarks were passing remarks, which were not critical to the decision-making process and they could not in themselves affect the conclusions made rejecting the applicant's account on credibility grounds.

Reporter: L.O'S

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JUDGMENT of Mr. Justice Hogan delivered on the 22nd September, 2011

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1. In these judicial review proceedings the applicant seeks to challenge the validity of a decision of the Refugee Appeals Tribunal dated 9 th December, 2009, as rejected the applicant's asylum request. The principal ground of challenge is that the Tribunal erred in rejecting the applicant's claims on credibility grounds.

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2. The applicant was born in Moldova in 1973 and she later qualified as a midwife. She commenced employment in Chisinau, the capital of Moldova. She says that she spoke and studied in Russian, but that the Moldovan language, history and culture had all been neglected. She then decided to become involved in political activity and got involved in the People's Front Union/Christian Democratic Party. Questions of language, history, school instruction and relations between Moldova, Romania and the Russian Federation both before and after the break-up of the erstwhile Soviet Union were (and, to some extent at least, still are) highly controversial at the time.

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3. She says that in 2001 she became active on behalf of the party with students in schools and colleges. Matters came to a head in November, 2001 when she says that a large demonstration was organised in Chisinau in order to promote the teaching of Moldovan and the re-unification of Moldova with Romania and that she spoke at the demonstration. Ms. B. contends that she was arrested after the demonstration and then brought to the main police station. She says that she was severely raped during the course of her detention and that she felt humiliated and disgusted as a result. She nonetheless says that she managed to speak at a further public demonstration a few days later.

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4. After that meeting she met her ex-husband and after they returned to her apartment she says that she was accosted by masked men who assaulted them both and went through their personal documentation. She says that she was hospitalised as a result. She maintained that it was pointless to go to the police to complain, but that when she went instead to the General Prosecutor on 14 th December, 2001, with her medical file, she was curtly dismissed and her documentation destroyed. She further contends that shortly after she drove away from the Prosecutor's office her car was hit on a city centre roundabout exit by a minibus belonging to the Moldovan Government. The lefthand side of the car door and a headlamp were damaged. The traffic policeman on duty refused to help her, but she says that she recognised that the car (or minibus) was a Government car because she there was "a government number on the car."

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5. The Tribunal found against the applicant on credibility grounds. The applicant now wishes to impugn these findings on the general grounds that the inferences drawn by the Tribunal member are vitiated by material errors of fact and, furthermore, were not reasonably drawn. We can now proceed to examine the analysis of the applicant's claim which the Tribunal conducted.

The demonstration on November 29 th, 2001
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6. In many ways, the events which are said to have taken place at and following the demonstration in Chisinau on 29 th November, 2001, are central to the applicant's claim. After all, the applicant's maintains that in its aftermath she was arrested and subsequently raped by the authorities. I pause here to observe that it is clear from the country of origin information that the human rights record of the Moldovan Government during this period can only be described as deplorable. Regrettably, accounts of arbitrary arrest, the suppression of free speech, the intimidation and arrest of journalists, the absence of an effective prosecutorial and judicial system to deal with complaints against the police and the widespread ill-treatment (and worse) of detainees were all too frequently documented in respect of this period.

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7. So far as the credibility of the applicant's claim with regard to the events of 29 th November, 2011, is concerned, the Tribunal member concluded:-

"The applicant was referred to her evidence that there was a demonstration on the 29 th of November of about 10,000 people. The Presenting Officer said that it was not credible that there would be no mention of this demonstration in the media. Her reply to that was that the communist press control the media. I find it to be neither plausible nor credible that such a demonstration could have taken place in view of the large number of people the applicant contended had attended such a demonstration."

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8. The standard principles to be applied in cases of this kind have, of course, been helpfully set out by Cooke J. in his judgment in R. v. Refugee Appeal Tribunal [2009] IEHC 353. So far as the present case is concerned, it is principles (4) to (8) which are the most relevant:

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2 ".....(4) The assessment of credibility must be made by reference to the full picture that emerges from the available evidence and information taken as a whole, when rationally analysed and fairly weighed. It must not be based on a perceived, correct instinct or gut feeling as to whether the truth is or is not being told.

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(5) A finding of lack of credibility must be based on correct facts, untainted by conjecture or speculation and the reasons drawn from such facts must be cogent and bear a legitimate connection to the adverse finding.

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(6) The reasons must relate to the substantive basis of the claim made and not to minor matters or to facts which are merely incidental in the account given.

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(7) A mistake as to one or even more facts will not necessarily vitiate a conclusion as to lack of credibility provided the conclusion is tenably sustained by other correct facts. Nevertheless, an adverse finding based on a single fact will not necessarily justify a denial of credibility generally to the claim.

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(8)...

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