F (F) [Iran] v Refugee Appeals Tribunal (Garvey) & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 14 October 2011
• Neutral Citation: [2011] IEHC 390
• Court: High Court
• Date: 14 October 2011

[2011] IEHC 390

THE HIGH COURT

[No. 1431 J.R./2008]

F (F) [Iran] v Refugee Appeals Tribunal (Garvey) & Min for Justice

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

F. F. [Iran]

APPLICANT

AND

BEN GARVEY SITTING AS THE 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 2009/47/11866 2009 IEHC 353

REFUGEE ACT 1996 S11

IMMIGRATION LAW

Asylum

Decision - Reasons - Credibility - Errors of fact - Principle that decision be read as whole Whether errors of fact material - Adverse credibility finding regarding action of parents of applicant - Whether finding erroneous, speculative or unsupported by evidence - Finding of inconsistency of evidence - Whether requirement to put this finding to applicant - Misunderstanding of evidence - Whether distinct finding based on misunderstanding - Observation based on insufficient evidence -Whether observation part of overall evaluation - Finding regarding censorship - Whether based on evidence - Finding regarding lack of documentation - Whether conclusion reached open to respondent - Alleged mistake in interpretation of evidence - Whether mistake as to material fact - Whether substantial grounds to grant leave - R(I) v Minister for Justice, Equality and Law Reform [2009] IEHC 353, (Unrep, Cooke J, 24/7/2009) approved - Refugee Act 1996 (No 17), s 13 - Leave refused (2008/1431JR - Cooke J - 14/10/2011) [2011] IEHC 390

F(F) v Refugee Appeals Tribunal

Facts The applicant was an Iranian national and had sought asylum in the State. The first named respondent affirmed the negative recommendation of the Refugee Applications Commissioner to refuse the application. The applicant had made the case that he had been a member of a particular political group and as a result had come to the attention of the authorities. It had been submitted that he had been forced to flee the country and to seek asylum. The applicant initiated judicial review proceedings contending that there had been a number of errors in the manner that his case was assessed. The Tribunal member had found that no such political group (the "Sun Group") could be found and had also found various details in the applicant's evidence to be lacking in credibility and lacking corroboration.

Held by Cooke in refusing the application. Although, it might be possible to point to one admitted error and a number of other arguable discrepancies or mistakes attributable to mistranslation, these were not either individually or in their cumulative effect sufficient to undermine the validity of the overall assessment made by the Tribunal member. The Tribunal member had carefully considered the essential basis upon which the claim to a fear of persecution has been made and had found it wanting. Where mistakes or misunderstandings did not materially undermine the soundness of the overall assessment, it was not the function of the High Court to intervene.

Reporter: R.F.

1 1. The applicant in this case is a national of Iran who applies for leave to seek judicial review of an appeal decision of the first named respondent dated the 22 ^nd October, 2008, which affirmed the negative recommendation upon his asylum application contained in a report of the Refugee Applications Commissioner under s. 13 of the Refugee Act 1996, dated the 29 ^th August, 2007.

2 2. The applicant is described in the contested decision as "articulate, competent, educated and well able to communicate to the Tribunal" and the essential details of his background and his personal circumstances were not, as such, doubted either by the Tribunal member or by the Commissioner in the s. 13 Report. The negative recommendation is, nevertheless, based entirely upon a finding of lack of credibility in the essential claim to a fear of persecution upon which the application for asylum was based.

3 3. He claimed to be at risk of persecution if returned to Iran because of his past political activities as a member of a particular political group and he claimed that it was because his life was in danger as a result of these activities that he was forced to flee Iran in October 2006 and shortly afterwards to claim asylum in the State.

4 4. It is this claim to involvement in the activities of this opposition or dissident group that was at the heart of the finding of lack of credibility. In particular, the applicant's claim was doubted because no trace could be found of the existence of the group in question.

5 5. According to the applicant, his father was a dentist and his mother a teacher and both were politically active. He had an older sister who he claimed had also been obliged to flee Iran because of her similar political activities. She had gone to Canada and when his flight from Iran was arranged he believed that he too was headed for that country.

6 6. The applicant claimed to have been born on the 9 ^th September, 1990 and thus to have been a minor when he arrived in Ireland "in or about, 21 ^st November, 2006". Prior to leaving Iran he claimed to have been active in a political group caned "Etelafeh Aftab" in the Farsi language, a name which appears to have been translated during the asylum process as the "The Sun Organisation Group" or "Sun Group". He said his role involved printing and distributing leaflets in order to promote interest in civil liberties issues. At the age of fifteen he claimed that he followed his parents in joining the Sun Group. His activity particularly involved the use of the computer to propagate the views of the group. He claims that as a result of his activities with a particular friend in distributing pamphlets he was arrested in December 2005, detained, interrogated and tortured over a period of 63 days. He and his friend were beaten but then released apparently because the security forces appeared to accept the story they gave of having been given the pamphlets to distribute by strangers.

7 7. In spite of these events he decided on his release to recommence his activities on behalf of the Sun Group and he claimed that he was encouraged to do so by his parents. He described his role as an activist as involving collating photos which showed the brutal behaviour of the police towards those involved in demonstrations and publishing them on the internet.

8 8. The s. 13 Report based its negative recommendation upon the implausibility of the applicant's account and specifically upon doubts as to his claim to have been that actively involved in a particular political group of which no trace could be found through internet searches. The report noted the lack of any documentation corroborating his claim to have been so involved. It concluded, "On balance, it is difficult to accept the applicant has presented a credible claim that he was persecuted for membership of the Sun Group or that he was an active member of such a group. The lack of any corroborating evidence concerning the Sun Group, his inability to offer any documentary evidence of this group or of his involvement in it, and serious inconsistencies regarding his return to work for this group after his alleged detention are issues that go to the heart of that claim".

9 9. The contested decision of the Tribunal is also, as mentioned, based entirely upon a finding of lack of credibility as to the applicant's claim to political involvement in the group in question. The analysis of the claim in this regard as set out in Part 6 of the decision is, in the view of the Court, thorough, careful, balanced and detailed. The analysis extends over six pages. It acknowledges that the applicant was able to give detailed information about the area from which he claimed to come so that "his claim to be from Iran is not doubted". Nevertheless, the Tribunal member identified "a number of problematic inconsistencies" which put his credibility in question. It is these specific points, identified by the Tribunal member in the account and claim of the applicant, which form the basis of the grounds sought to be presented by way of challenge to the validity of the conclusion as to lack of credibility upon which the Tribunal decision rests.

10 10. Nine particular points are identified on behalf of the applicant and challenged as being based upon errors of fact, mistaken assumptions, on speculation or on matters which ought not to have been relied upon without first having been put to the applicant for comment or rebuttal. The nine specific points thus identified were set out in the applicant's submissions as points A to I, and were relied upon both individually and cumulatively as undermining the soundness in law of the conclusion on credibility ultimately reached.

11 11. Before addressing the specific arguments raised in this regard it may be no harm to recall some of the basic principles which circumscribe the jurisdiction of this Court in entertaining and evaluating attempts to set aside assessments of credibility made by administrative and quasi- judicial decision-makers which have been reached in procedures involving the hearing and personal assessment of the credibility of a claimant. This Court endeavoured to distil some of the salient principles from the case law in this topic in its judgment of 24 ^th July, 2009, in I.R. v. Minister for Justice, Equality and Law Reform and Another [2009] I.E.H.C. 353. It is unnecessary to reiterate the ten points set out by the Court at para. 11 of that judgment, but in the context of the present case, the Court would draw attention to the principle identified at subparagraph (8):

"When subjected to judicial review, a decision on credibility...