D.E v Refugee Appeal Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 25 June 2013
• Neutral Citation: [2013] IEHC 304
• Court: High Court
• Date: 25 June 2013

E (D) & Ors v Refugee Appeals Tribunal & Ors

BETWEEN

D. E., L. E. AND S. E. (A MINOR SUING BY HER FATHER AND NEXT FRIEND, D. E.)

APPLICANTS

AND

THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND ATTORNEY GENERAL

RESPONDENTS

[2013] IEHC 304

[No. 872 J.R./2009]

THE HIGH COURT

Judicial review – Credibility – Assessment of credibility

Facts: An application to seek leave for judicial review proceedings was brought by the applicant complaining that the assessment of his credibility during an asylum claim was unlawful.

Mac Eochaidh J held the rejection of general credibility, due to the absence of any documentary evidence to support certain facts, was unlawful in the circumstances. The applicant”s account had provided an explanation for the absence of the documents and there had been a failure to refer or apply the provisions of Article 5(3) of the EC (Eligibility for Protection) Regulations (S.I. 518 of 2006).

General credibility had been rejected based on facts connected to summons submitted by the applicant in evidence. The conclusions made by the Tribunal were based on speculation and not evidence, this extended to the reasoning given by the Tribunal based on the father being able to obtain the applicant”s military uniform. Many matters outlined also provided to be peripheral. I.R. v. Minister for Justice [2009] IEHC 353, considered.

Leave to seek judicial review was granted, a further order of certiorari was granted in the case with the matter remitted to the Tribunal for consideration.

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

O (R) (AN INFANT) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (LEVEY) UNREP MAC EOCHAIDH 20.12.2012 2012 IEHC 573

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 ART 5(3)

1 In these telescoped judicial review proceedings a complaint is made as to the manner in which the applicant's credibility was assessed. At the outset it is useful to recall the well known passages in I.R. v. Minister for Justice [2009] IEHC 353, where Cooke J. summarises the principles governing a review of credibility findings. I refer in particular to the following -

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.

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.

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.

…

9 ) Where an adverse finding involves discounting or rejecting documentary evidence or information relied upon in support of a claim and which is prima facie relevant to a fact or event pertinent to a material aspect of the credibility issue, the reasons for that rejection should be stated."

2 It is trite to state that where reasons are required, a mere recitation of reasons will be adequate. Reasons must meet certain minimum standards and these were described in R. O. v. Minister for Justice &. Ors [2012] IEHC 573 following a review of the relevant case law:

"A survey of this case law reveals principles which may be used to assess the adequacy of reasons for credibility findings in asylum cases:"

(i) Reasons must be intelligible in the sense that the reasons should enable the reader to understand why the applicant for protection is disbelieved on a certain point and/or generally…

(ii) Reasons must be specific, cogent and substantial…

(iii) Reasons must be drawn from correct facts and must bear a legitimate connection to the adverse credibility findings…

(iv) Reasons must relate to the substantive basis of the claim and not to minor matters…"

Background

3 The applicant and his wife left the Ukraine on 26 ^th November, 2006, and arrived in Ireland on 1 ^st December, 2006. The third named applicant was born on 13 ^th December, 2006. These asylum claims rest on the alleged persecution of the first and second named applicant because of the first named applicant's pursuit of corruption allegations against senior military figures. Mr. E. was a platoon commander in the Ukrainian army who served two tours of duty with the International Peacekeeping Force in Kosovo. During his second tour of duty he was asked to collect money from the men in his unit to give to certain officers. He refused this demand but the money was deducted from the soldier's pay. This was the matter that he pursued and which he says brought about his persecution.

4 The first named applicant says that he made numerous complaints about these events when he returned to the Ukraine from Kosovo. He made complaint to the military prosecutor of his garrison. He was advised, he says, by the commander to drop these complaints. He renewed his complaint to the military prosecutor. In a drunken incident, he says that the battalion commander threatened him.

5 The applicant states that he wrote a letter of complaint to a colonel in the Military Prosecutors Office. Some days later he says he was assaulted by a group of unknown people. Consequently, he spent four days in a military hospital and thereafter he was dismissed from the military. He received a letter from the Military Prosecutors Office saying that the complaint had been referred to the prosecutor's office of the Lvov Garrison.

6 On 24 ^th October, 2006, the applicant went to the prosecutor's office in Lvov to pursue the matter and he was informed by a commanding officer that the army were not interested in these events. When he arrived home he discovered that his pregnant wife was missing and it subsequently emerged that she had been abducted, assaulted and kept overnight. His wife made a complaint to the police in respect of this matter. The applicant approached a journalist who took a full record of these events and believed that it was a good story but the story was never published. The journalist later distanced himself from the applicant.

7 The applicant then pursued the matter with the Mayor's office in Lvov who at first appeared sympathetic. At 2.00am on the 25 ^th November, officials from the Anti-Corruption Unit (OBOZ) called to the applicant's home and demanded that he make a statement withdrawing the allegations. These men assaulted him and terrified his wife, who was in another room. Civilian police arrived (apparently called by neighbours who heard a commotion) and the OBOZ officials departed. The next day, according to a friend of the applicant, military authorities posted the applicant's photograph on a military wanted list in relation to embezzlement and the illegal sale of arms in Kosovo. It was at this stage that the applicant decided that he had to leave the Ukraine immediately.

8 Documentary evidence was submitted to the Tribunal in support of the claim: photographs showing the applicant in military uniform apparently deployed in Kosovo; military identification documents; medical reports describing injuries sustained by the applicant and his wife in October 2006; employment records of the second named applicant; and translations were supplied of a summons to appear in court.

Decision of the RAT

9 The first named applicant's credibility is rejected for three reasons.

(i) The absence of documentary evidence of the complaints made by the applicant to prosecutors, the police, a journalist and the mayor's office.

(ii) The summons was found to refer to an administrative violation (not criminal) and the fact that it had been sent to his father's home.

(iii) The applicant wore his military uniform at the RAT hearing although he said his apartment had been sealed after his departure leading to a doubt about how the applicant's father was able to access the apartment/uniform.

10 The first complaint made in these proceedings about the decision is that it fails to determine the applicant's core claim. It is a notable feature of this case that the Tribunal Member makes no finding in respect of the truth or otherwise of the applicant's account of being Ukrainian, ex-military, having served in Kosovo, having observed corruption and having made complaints in respect of same....