D (A) v Refugee Appeals Tribunal (Christopher) & Minister for Justice

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Faherty
Judgment Date06 March 2015
Neutral Citation[2015] IEHC 268
Date06 March 2015

[2015] IEHC 268

THE HIGH COURT

[No 1231 J.R./2010]
D (A) v Refugee Appeals Tribunal (Christopher) & Minister for Justice
JUDICIAL REVIEW
No Redaction Needed

BETWEEN

A. D.
APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (CONSTITUTED OF PAUL CHRISTOPHER, TRIBUNAL MEMBER) AND
THE MININSTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENTS

Asylum – Immigration & Nationality – Refugee Appeals Tribunal – Refusal of asylum claim – Fear of persecution – Reg. 5 of the European Communities (Eligibility for Protection) Regulations 2006 – Whether applicant's evidence credible

Facts: The applicant sought an order quashing the decision of the first named respondent refusing refugee status to the applicant. The applicant contended that the first named respondent failed to verify the authenticity of the document that was presented before it and did not consider the country of origin information regarding treatment meted out to Kurdish persons in Iran by a political regime under the guise of justice.

Ms. Justice Faherty granted an order quashing the decision of the first named respondent and remitted the case for reconsideration by a different member of the first named respondent. The Court held that the first named respondent was bound to assess the country of origin information under reg. 5 of the European Communities (Eligibility for Protection) Regulations 2006 and gave reasoned decisions for the rejection of claim based on the scrutiny of that information. The Court held that the findings by the first named respondent that the Iranian Court document and its translated version presented by the applicant contained contradictory information made it incumbent upon the first named respondent to conduct inquiry at its own to prove the authenticity of the document.

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JUDGMENT of Ms. Justice Faherty delivered on the 6th day of March 2015

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1. This is an application for judicial review of a decision of the first named respondent refusing refugee status to the applicant.

Background
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2. The applicant is an Iranian national of Kurdish ethnicity. He was born in 1988 and prior to arriving in this State lived with his sister and uncle in a city in Iran. He sought refugee status in the following claimed circumstances:

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3. While living in Iran the applicant worked as a mechanic. On Thursday 10 th September 2009 a man came to the garage where the applicant worked, enquired after the owner (who was not present) and then requested the applicant to take in a damaged car for repair which the applicant duly did. Two days later as the applicant was arriving for work he saw that the garage was surrounded by Revolutionary Guards and intelligence officers and saw that they had put the car which had been left in for repair onto a tow truck. The applicant made enquiries about what was going on from an individual in a nearby shop, whom he knew, and was informed that the garage boss and an assistant had been arrested by the guards. Being a Kurd and because of his fear of the Revolutionary Guards and intelligence officers the applicant did not attend at his workplace but returned home and advised his uncle of what occurred. His uncle took him to a named village. Later that night his uncle returned and advised the applicant that the Revolutionary Guards and intelligence officers had come to the applicant's house to arrest him and had taken all of his belongings. Moreover, his uncle had told him that, according to the Revolutionary Guards, the garage owner and the other worker had disclaimed knowledge of the car before stating the applicant had taken the car into the garage. The applicant's uncle had ascertained that the car had been used for anti-government operations prior to it having been brought to the garage for repair. In light of what had occurred, his uncle had sent him to another village to stay with a friend. In the interim, the Revolutionary Guards came to the applicant's house a number of times. After ascertaining that they were still searching for the applicant, his uncle had arranged to send him abroad to protect him from the Iranian regime. Arrangements were made for him to leave Iran with the aid of traffickers. The applicant claimed to have been brought to Turkey by the traffickers where he remained in a room for a period of days without going outside. On the 13 th October 2009 he was taken from the place he was staying, brought to an airport and put on a plane and arrived in Ireland on the same date.

Procedural History
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4. The applicant presented at the offices of the ORAC on the 14 th October 2009. His ASY interview was conducted on the 17 th November 2009. He completed a questionnaire on the 21 st November 2009. The applicant based his claim for asylum on a stated fear of persecution in Iran for reasons of nationality and political opinion. He was interviewed by the Refugee Appeals Commissioner on 10 th December 2009. The Commissioner's section 13 report issued on 10 th February 2010 and it recommended that the applicant not be declared a refugee. This recommendation was appealed to the Refugee Appeals Tribunal and an oral hearing took place on the 6 th July 2010. The decision of the Tribunal, dated 7 th July 2010 issued to the applicant on the 14 th July 2010.

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5. The Tribunal affirmed the recommendation of the Refugee Appeals Commissioner that the applicant not be declared a refugee. It decided the applicant's appeal primarily on the question of credibility.

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6. The Tribunal was not generally satisfied as to the applicant's credibility in relation to the particular claim for asylum advanced by him. It found that some of his evidence ran contrary to common sense and was implausible and that other aspects of his evidence were contradictory. The Tribunal set out a number of "examples" in respect of credibility, as follows:

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a) The Tribunal said that a document "purporting" to be a ruling of the Iranian Court (which had been submitted by the applicant to the Tribunal in advance of the hearing) conflicted in several respects with evidence given by the applicant, insofar as the court's document made reference to the applicant having confessed to the crime for which he was ultimately convicted. The document made reference to a Toyota car where the applicant had made it clear it had been a Kia. The applicant had referred to the document as a warrant for his arrest. It appeared from the document that the applicant had been sentenced to a year in prison and lashes for his offence, yet the applicant had initially told the Tribunal that he would be executed for taking the car in for repairs. When this had been put to him, the applicant had changed his evidence to say that he would be executed for having escaped.

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b) The Tribunal found the investigation of the circumstances surrounding the car "inherently implausible" because the applicant's relatives were never questioned as to his whereabouts, activities, political opinions, acquaintances, work life, etc. Moreover the Tribunal noted that despite having said that he would face the death penalty for taking the car in for repairs, the applicant had told the Tribunal that his boss, a far more responsible person had received a jail sentence.

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c) The Tribunal presumed that the authorities would have been interested in asking the applicant's uncle questions about any details that he was told by the applicant in relation to the incident and the authorities' failure to ask the applicant's uncle about such details struck the Tribunal Member as inherently implausible.

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d) The absence of knowledge on the part of the applicant's uncle or sister regarding the court hearing that resulted in the applicant's conviction also struck the Tribunal Member as inherently implausible.

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e) The Iranian court's ruling was on the 11 th September 2009 whereas the attempt to arrest the applicant was on the 12 th September 2009.

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f) The Tribunal upheld the finding made by the Refugee Appeals Commissioner at para. 3.3.3 of the section 13 report and afforded no weight to the copy document purporting to be a ruling of court and found that nothing proffered by the applicant to the Tribunal tended to undermine the validity of the Commissioner's finding.

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g) The Tribunal upheld the finding at para. 3.3.4 of the section 13 report that the applicant's evidence was vague and lacking in detail in relation to his journey to Ireland and that the applicant had not bothered to acquaint himself with the documents used for his journey.

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h) The applicant's failure to claim asylum in Turkey was not indicative of a well-founded fear of persecution.

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a i) The Tribunal afforded "the purported identity and other documents personal to the appellant printed by him no weight in the circumstances" and found "that they do not advance his claim in any material respect, indeed at least one of them serves to undermine the credibility of his claim".

The challenge to the decision
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7. The statement of grounds sets out six grounds of challenge to the Tribunal's decision, one of which was not pursued. In the course of the oral submissions, counsel for the applicant stated that the primary challenge to the decision was on the basis of the Tribunal Member's failure to assess the credibility of the applicant's claim in the context of country of origin information. Further, the Tribunal Member failed to take account of other documentation which had been submitted by the applicant in aid of his appeal, in particular his identity documentation and the record of his conviction and sentence by the Iranian court.

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8. The following country of origin information was before the Tribunal:

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1. Country of origin information taken from the Danish Fact Finding Mission to Iran 24 th August - 2 nd September 2008, Section 2 "Kurds". This document was attached as appendix...

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