Carciu v Minister for Justice, Equality and Law Reform & the Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: MS. JUSTICE FINLAYGEOGHEGAN
• Judgment Date: 04 July 2003
• Neutral Citation: [2003] IEHC 41
• Docket Number: NO. 148 JR/2003
• Date: 04 July 2003
• Court: High Court

[2003] IEHC 41

THE HIGH COURT

FINLAY GEOGHEGAN

NO. 148 JR/2003

CARCIU v. MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL

VIOREL CARCIU

APPLICANT

THE MINISTER FOR JUSTICE,

EQUALITY AND LAW REFORM

AND THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

Citations:

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

BUJARI V MIN JUSTICE UNREP FINLAY-GEOGHEGAN 7.5.2003

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992

Synopsis:

IMMIGRATION

Asylum

Judicial review - Leave to apply for judicial review - Whether substantial grounds - Decision to refuse asylum - Whether irrational or unreasonable - Jurisdiction - Assessment of credibility - Whether assessment carried out on false premises - Error of material fact - Whether decision of adjudicator vitiated thereby - Whether leave should be granted - Illegal Immigrants (Trafficking) Act, 2000 section 5 (2003/148JR - Finlay Geoghegan J - 4/7/2003)

Carciu v Minister for Justice, Equality and Law Reform

the applicant applied for leave to issue judicial review proceedings seeking to have the recommendation of the second respondent quashed. The applicant's claim for asylum was based on his political opinion and his religion. It was acknowledged by the applicant that he had not been truthful at the interview stage prior to the appeal hearing in relation, inter alia, to his wife's whereabouts but that he had been truthful in relation to her whereabouts when making his initial application for asylum. The second respondent in its decision erroneously stated that the applicant had misrepresented the location of his wife both at interview and in his initial application. The tribunal held that those alleged inconsistencies were material and warranted a negative finding in relation to his credibility on the substantive information presented by him supporting his claim for asylum. It was submitted by the applicant that the premise upon which his credibility had been by assessed by the second respondent was false thereby and that that false premise had been treated as material by the second respondent. Accordingly, the decision was irrational as based on an erroneous fact.

Held by Finlay Geoghegan J in granting the applicant leave to seek to have the impugned decisions of the second respondent quashed that the process by which the credibility of an applicant for asylum is assessed by an adjudicator was a matter within the remit of judicial review. The correct process for such an assessment was set out in paragraph 199 of the UNHCR Handbook. If the decision on the credibility of an applicant was based on an incorrect, undisputed fact then, unless it could be established that that incorrect fact was so insignificant that it was not material to the decision maker, there was a potential breach of an obligation to observe fair procedures and it could be asserted that the decision was irrational as based on an erroneous fact.

1 EX-TEMPORE JUDGMENT DELIVERED BY MS. JUSTICE FINLAYGEOGHEGANON FRIDAY, 4TH JULY 2003

2 This is an application for leave to issue judicial review against a recommendation of the Refugee Appeals Tribunal which is contained in a decision of the 5 ^th of February, 2003.

3 The applicant is obliged to establish that there are substantial grounds for alleging the invalidity of the decision having regard to the provisions of Section 5 of the Illegal Immigrants (Trafficking) Act 2000. That requires the applicant to establish that there are reasonable, arguable and weighty grounds for asserting the invalidity of thedecision.

4 This is not an application where I was asked to determine in the event that I found that there were substantial grounds within the meaning of Section 5 the substantive issue.

5 I would like to commence by making two observations in relation to the decision which are relevant to the claims which are made on this application for leave.

6 The claim for declaration of refugee status at the time it came before the tribunal was based on two grounds. There was an allegation of persecution on grounds of religion or religious belief, and secondly an allegation of persecution grounded on political opinion.

7 The member of the tribunal deals with the claim based on religious ground in one single paragraph at the top of page six of his decision where he commences by stating:

"Insofar as the applicant claimed he was persecuted as a consequence of his religion, there is evidence to supportthis."

8 He then goes on in fact to find that the claim is not well grounded in the sense that there is not objective evidence to support the subjective fear, and therefore the claim is not well founded.

9 However, in considering that paragraph, counsel for the applicant has laid stress upon the fact, and indeed it hasn't been disputed, that in respect of this aspect of the claim the tribunal member appears to have accepted as credible the evidence which has been offered by the applicant in support of the allegation that he was persecuted as a consequence of his religion. There doesn't seem to be any other explanation for the conclusion which is stated therein, that there is evidence to support this referring as he does to the alleged persecution as a consequence of religion.

10 Therefore notwithstanding the later conclusions in the decision, I must treat this decision as a decision in which it appears from the content of thedecision itself that the tribunal member has not considered the applicant's story to be wholly in credible.

11 The second observation that I would like to make and which is relevant to the grounds which are raised is the conclusion expressed by the tribunal member in the next paragraph on page six of his decision, where he states, in relation to the claim of a well-founded fear of persecution for political opinion, that if he, the applicant, is...