D (T) v Refugee Appeals Tribunal and Others

JurisdictionIreland
JudgeMr Justice Cooke
Judgment Date28 April 2010
Neutral Citation[2010] IEHC 125
Docket Number[No. 372 J.R./2008]
CourtHigh Court
Date28 April 2010

[2010] IEHC 125

THE HIGH COURT

[No. 372 J.R./2008]
D (T) v Refugee Appeals Tribunal & Min for Justice
JUDICIAL REVIEW
BETWEEN/
T.D.
APPELLANT

AND

REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENTS

REFUGEE ACT 1996 S13

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009 IEHC 353

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S11B

REFUGEE ACT 1996 S11B(C)

IMMIGRATION

Asylum

Credibility - Contradicted by known facts - Effect of finding that applicant lied - Manner of leaving country of origin - Whether failure of another to flee relevant to assessment of applicant's credibility - Absence of reference to events in country of origin information - Whether entitled todraw inference from lack of reference in materials - Discrepancy in personal account and country of origin information - R(I) v Minister for Justice, Equality and Law Reform [2009] IEHC 353 (Unrep, Cooke J, 24/07/3009) followed - Refugee Act 1996 (No 17), s 11(B)(c) - Leave refused (2008/372JR - Cooke J - 28/04/2010) [2010] IEHC 125

D(T) v Refugee Appeals Tribunal

Facts: The applicant sought judicial review of a negative decision of the first respondent refusing the applicant asylum. The applicant sought to challenge the basis on which conclusions as to a lack of credibility had been reached. The respondent Tribunal member had failed to find credibility in the account of the applicant given, in particular as to an absence of any confirmation of an account of mass arrest at a wedding in the country of origin, a discrepancy as to an account of her continuance in education and the details of the arrangement of her flight by an individual who did not leave the country. The applicant contended that the Tribunal member had engaged in personal conjecture and that findings made were erroneous in law and in breach of fair procedures.

Held by Cooke J. That it was not unreasonable for the Tribunal to express the views shown and there was no clear and fundamental error in the overall appraisal of the applicant that would jeopardise the soundness of any assessment. There was no serious error or misunderstanding and any observations or comments made were understandable. It was not a case where the Court would interfere with an assessment of credibility and the Court would affirm the negative recommendation made. Leave would be refused.

Reporter: E.F.

Mr Justice Cooke
1

This is an application for leave to seek judicial review of a decision of the Refugee Appeals Tribunal dated 22nd January, 2008 in which the Tribunal Member (Michelle O'Gorman) affirmed a report and negative recommendation dated 28th April, 2007, which had been made under s. 13 of the Refugee Act 1996 (as amended) by the Refugee Applications Commissioner.

2

The applicant is a national of Eritrea who arrived in the State as an unaccompanied minor aged seventeen years in October 2006. She made an application for asylum at the beginning of January 2007. Her claim to asylum was based upon the mistreatment she alleged she had suffered in Eritrea in 2006 as a member of the Kale Hiwot religion. The negative recommendation of the Commissioner and the appeal decision of the Tribunal turn entirely on the issue of credibility. Although both decision makers accepted the unquestionable effect of extensive country of origin information as to the suppression of that church and the arrest and harassment of its members and the eventual confiscation of all of its properties, each came to the conclusion that the applicant was not personally credible in the particular account she gave of the events in the years 2002 to 2006 which led to her flight first to Khartoum in Sudan and from there to Ireland.

3

The application for judicial review seeks to challenge the basis upon which the conclusion as to lack of credibility in the appeal decision has been. reached by the Tribunal member. The legal hurdle which faces such a challenge is well known and hardly needs repetition. This Court endeavoured to summarise some of the relevant principles in its judgment of 24th July 2009 in I.R. v. MJELR The appraisal of the personal credibility of an asylum seeker is the function of the administrative decision makers. The determination as to whether a claim to a well founded fear of persecution is credible falls to be made under the Refugee Act 1996 by the administrative decision makers and not by the Court. The High Court on judicial review must not succumb to the temptation or fall into the trap of substituting its own view for that of the primary decision makers. On judicial review, the function and jurisdiction of the High Court is confined to ensuring that the process by which the determination is made is legally sound and not vitiated by any material error of law, infringement of any applicable statutory provision or of any principle of natural or constitutional justice. Any 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.

4

Although the present application for leave is confined to seeking review of the decision of the Appeal Tribunal, it is relevant to consider first the approach taken to this issue by the authorised officer in the s. 13 report both because the report is confirmed by the appeal decision and because the Tribunal member places reliance upon the evidence derived from the s. 11 interview of the applicant which had been looked at in the report.

5

The applicant told how she had lived with her family in the village of Tukul about seven kilometres from Dekemhare which was about 40 kilometres from Asmara. She and her family were members of a pentecostalist church, the Kale Hiwot. She had attended its primary school in Dekemhare until 2003 and then went to Dekemhare secondary school until she left Eritrea in late 2006. She described how the church had been banned by the government in 2002 and the school she attended taken over although, following the takeover, it continued to operate as a school but without religion. From that point in 2003 they used to go to a house in the village belonging to the Gebru family where Mr. Gebru taught religion. In January 2006 her father was arrested while attending a big wedding. He was held in a camp and apparently tortured until released in August 2006. She said she and other children were arrested at the Gebru home in August 2006 and all the children were taken to the police station. Mr. Gebru was apparently not in the house when the police arrived. Thereafter her father arranged with Mr. Gebru to have her leave Eritrea and she was taken to Khartoum where, with an agent, she boarded an aeroplane which took them to Dublin stopping once en route. While some other passengers left the plane at the stopover she and the agent did not.

6

The authorised officer identified a number of specific points in that account as giving rise to doubts as to credibility:

7

(a) A search of country of origin information resources failed to disclose any record of the mass arrest said to have taken place at the large wedding in January 2006 although reports were found of similar mass arrests at another wedding associated with the Kale Hiwot church in 2005.

8

(b) Further consultation of country of origin information confirmed that the Eritrean government had indeed confiscated all property and assets of the Kale Hiwot church but in September 2006. The officer noted that the applicant had not been affected in her attendance of the school and said:

"While there are credible reports of Kale Hiwot and other Pentecostal church members being persecuted, I am not convinced that it is so in the case of the applicant, nor that she would be singled out should she return to her country of origin."

9

(c) The officer made a specific finding by reference to s. 11B of the 1996 Act to the effect that the applicant had not provided a full and true explanation of how she travelled to and arrived in the State. This is because an investigation of her account of the flight disclosed that there are no such direct flights between Khartoum and Dublin.

10

7. In essence, the Tribunal Member adopts a very similar approach to the issue of credibility. In particular, although it is mentioned at the every end of the decision, the Tribunal Member makes the same finding by reference to s. 11 B (c) of the Act based upon the absence of any flights of the kind described between Khartoum and Dublin. In the earlier part of the "Analysis of the Applicant's Claim", in section 6 of the decision, the Tribunal Member identifies particular facets of the personal history as the basis for doubting credibility.

11

8. First, the evidence as to the mass arrest of those (including the applicant's father) attending the large wedding is considered and the Tribunal Member says: "It is surprising that no reference can be found in country of origin information in relation to the mass arrest at a wedding or the arrest of a preacher at Dekemhare at a wedding in January 2006."

12

9. Secondly, the applicant's account of the takeover of the school by the government is referred to and the...

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