G (M Y) v Min for Justice & Refugee Applications Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 28 April 2010
• Neutral Citation: [2010] IEHC 127
• Court: High Court
• Date: 28 April 2010

[2010] IEHC 127

THE HIGH COURT

[No. 814 J.R./2008]

G (M Y) v Min for Justice & Refugee Applications Commissioner

JUDICIAL REVIEW

BETWEEN

M.Y.G.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

CAMARA v MIN FOR JUSTICE & ORS UNREP KELLY 26.7.2000 2000/4/1247

GOODWIN-GILL REFUGEE IN INTERNATIONAL LAW 2ED 1988 354

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S11B(D)

IMMIGRATION ACT 2003 S7(F)

REFUGEE ACT 1996 S13(6)( C)

IMMIGRATION ACT 2003 S7(H)

REFUGEE ACT 1996 S13(5)1

REFUGEE ACT 1996 S13(1)

IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416

X (J) v REFUGEE APPEALS TRIBUNAL UNREP DUNNE 2.6.2005 2005/58/12299 2005 IEHC 167

O (BA) (A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP COOKE 6.11.2009 2009 IEHC 499

EUROPEAN COMMUNITY (ELIGIBILITY FOR PROTECTION) 2006 REGS SI 518/2006

REFUGEE ACT 1996 S16(6)

HORVATH v SECRETARY OF STATE & ORS 2000 3 AER 577

NGUEDJDO v REFUGEE APPLICATIONS CMSR UNREP WHITE 23.7.2003 (EX-TEMPORE)

IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 10.5.2005 2005/31/6357 2005 IEHC 150

MOYOSOLA v REGUGEE APPLICATIONS CMSR & ORS UNREP CLARKE 23.6.2005 2005 IEHC 218

D (A) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 27.01.2009 2009 IEHC 77

STEFAN v MIN FOR JUSTICE & ORS 2001 4 IR 203 2002 2 ILRM 134

ABENGLEN PROPERTIES v CORPORATION OF DUBLIN 1984 IR 381 1982 ILRM 590

MCGOLDRICK v BORD PLEANALA 1997 1 IR 497 1995/10/2825

GILL v CONNELLAN 1987 IR 541 1988 ILRM 448 1987/6/1683

BUCKLEY v KIRBY 2000 3 IR 431 2001 2 ILRM 395/2000/3/887

KOYODE v REFUGEE APPLICATIONS CMSR 2005 33 6894 2005 IEHC 172

N (B N)V MIN FOR JUSTICE & ORS 2009 1 IR 719

AKINYEMI v MIN FOR JUSTICE & ORS UNREP SMYTH 2.10.2002 2002/1/128

M (J G) v REFUGEE APPLICATIONS CMSR & ORS UNREP CLARK 29.07.2009 2009 IEHC 352

D (A) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 27.1.2009 2009 IEHC 77

WEIDENFELD & NICHOLSON EVIDENCE OF PROOF & PROBABILITY 2 ED 1983

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PAR 199

K (M) v MIN FOR JUSTICE & ORS UNREP MCGOVERN 23.01.2008 2008/31/6780

D (A MINOR ) & AJIBOLA v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 19.1.2010 2010 IEHC 172

RSC O.84 r 23

LELIMO v MIN FOR JUSTICE & ORS 2006 2 IR 178 2004/27/6362

ILLEGAL IMMIGRANTS TRAFFICKING ACT 2000 S5(2)(A)

ILLEGAL IMMIGRANTS TRAFFICKING BILL 1999 2000 2 IR 360

G K v MIN FOR JUSTICE & ORS 2002 2 IR 418

S v MIN FOR JUSTICE & ORS 2002 2 IR 163

S (C) & ORS v MIN FOR JUSTICE & ORS 2005 1 IR 343

EC DIRECTIVE 2005/85

REFUGEE ACT 1996 17(7)

REFUGEE ACT 1996 S17(1)(B)

IMMIGRATION

Asylum

Credibility - Fear of persecution - Application other than at frontiers of State - Whether reasonable explanation provided to show why application not made on arrival at frontier - Appeal without oral hearing - Whether decision in breach fair procedures - Whether duty consider country origin information when assessing subjective credibility - Whether opportunity to explain contradictions - Whether difference approach assessment credibility by Commissioner and Tribunal - Inquisitorial body - Whether statutory appeal sufficient remedy - Whether right oral hearing in general corollary of finding of lack of credibility - Whether written statements to Tribunal sufficient - Imafu v Minister for Justice, Equality and Law Reform [2005] IEHC 416 (Unrep, Peart J, 2/6/2005) applied; Olunloyo v Minister for Justice, Equality and Law Reform (Unrep, Cooke J, 6/11/2009), Horvath v Secretary of State for the Home Department [2001] 1 AC 489, Nguedjdo v Refugee Appeals Tribunal (Unrep, White J, 23/7/2003) and Idiakheua v Minister for Justice, Equality and Law Reform [2005] IEHC 150 (Unrep, Clarke J, 10/5/2005) followed - Camara v Minister for Justice, Equality and Law Reform (Unrep, Kelly J, 6/7/2000), Moyosola v Refugee Applications Commissioner [2005] IEHC 218 (Unrep, Clarke J, 23/6/2005), JX v Refugee Appeals Tribunal [2005] IEHC 167 (Unrep, Dunne J, 2/6/2005), Stefan v Minister for Justice [2001] 4 IR 203, VZ v Minister for Justice [2002] 2 IR 135, State (Abenglen Properties Limited) v Dublin Corporation [1984] IR 381, McGoldrick v An Bord Pleanála [1997] 1 IR 497, Gill v Connellan [1987] IR 541; [1988] ILRM 448, Buckley v Kirby [2000] 3 I.R. 431, Koyode v Refugee Applications Commissioner [2005] IEHC 172 (Unrep, O'Leary J, 25/04/2005), BNN v Minister for Justice [2008] IEHC 308 [2009] 1 IR 719 and Akinyemi v Minister for Justice, Equality and Law Reform (Unrep, Smyth J, 2/10/2002) considered; D(A) v Refugee Applications Commissioner (Ex temp, Unrep, Cooke J, 27/01/2009) and JGM v Refugee Applications Commissioner [2009] IEHC 352 distinguished - Refugee Act 1996 (No 17), ss 11(B)(d) and 13 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006)Leave refused (2008/814JR - Herbert J - 28/04/2010) [2010] IEHC 127

G (MY) v Minister for Justice, Equality and Law Reform

1 JUDGMENT of Mr. Justice Herbert delivered on the 28th day of April, 2010.

2 In Camara v. the Minister for Justice, Equality and Law Reform (Unreported, High Court, 26 ^th July, 2000) Kelly J. adopted the statement of Prof. Guy S. Goodman-Gill, ( The Refugee in International Law: Oxford University Press: 2 ^nd Ed. 1988 p. 354) that in assessing credibility, simply considered there are just two issues: First, could the applicant's story have happened or could his or her apprehensions come to pass, on their own terms, given what we know from available country of origin information? Secondly, is the applicant personally believable?

3 In the Report and Recommendation made pursuant to the provisions of s 13(1) of the Refugee Act 1996, (as amended), the second named respondent accepted that the applicant was a Chinese Citizen. The second named respondent accepted that the ill-treatment which the applicant claimed had been inflicted upon him while he was in the custody of the police in his country of origin could be deemed to be of a persecutory nature. The second named respondent also found that if the applicant's claim of a fear of persecution had been deemed to well-founded it would have followed that the protection of his state of origin not have been available to him.

4 However, the second named respondent found that there were a number of issues in the applicant's story recorded, in the Application for Refugee Status Questionnaire, completed by him in Chinese, and in the Notes of his Interview, held pursuant to the provisions of s. 11 of the Refugee Act 1996 (as amended), conducted in Mandarin through an interpreter, which tended to undermine the credibility and/or the substance of his case for a declaration of refugee status.

5 These issues were identified by the second named respondent as follows:-

"The applicant stated that he became Vice-Director of "X" Printing in March 2003. He said that his role as Vice-Director included repairing the printing machines and 'sending out products (see Q. 34 Interview Record, p. 7). He stated ten staff were employed by his company. When asked about the make and the model of the machines he repaired, he said 'The brand is Jiefang' (Q. 30 Interview Record, p. 6). It is reasonable to expect any competent mechanic to be more specific; for example, he should, at least, know the exact make and model of the machines he repaired.

The applicant has claimed that the police came to his place of business on March 13 ^th 2004, and discovered pro-democracy 'Bibles' on his premises (see his reply to Question 21 Questionnaire). It would seem from his description that these publications were not real Bibles but material which the authorities might regard as politically-inspired anti-government propaganda. In any event, the applicant's claim is that he was completely unaware that these 'Bibles' were being printed on his premises. As Vice-Director of this company, whose duties allegedly extended to repairing the printing machines and supplying products to his customers, it is very difficult to believe that he did not know that such potentially dangerous material was being produced on his premises.

The applicant stated that he is a Christian. Although he claims to have attended church both in China and Ireland, he was unable to name the church he attended in Ireland. The applicant went on to say 'I'm not really interested in the Christian religion, if my friends go I go' (Q. 60 Interview Record Sheet 11). He did not appear to know much about the Christian commandments or sacraments (Qs. 61 and 62 Interview) which would suggest that, if he has any interest in one of the Christian religions, his knowledge and commitment to the faith is non-existent. The applicant stated that he arrived in Ireland on October 7 ^th 2004. However, he did not apply for refugee status until May 6 ^th 2008 and the only reason he did so then was because he was arrested for residing illegally in the State. When asked for an explanation for the inordinate delay in applying for asylum the applicant stated 'Because I got some information that someone applied and wasn't successful and was sent back to China so I was afraid' (Q. 27 Interview Record Sheet 6). This explanation is not only unacceptable it is unbelievable."

6 In relation to this latter conclusion, the second named respondent expressly referred to the provision of s. 11B(d) of the Refugee Act 1996, as inserted by s. 7(f) of the Immigration Act 2003, which provides that in assessing the credibility of an applicant, where the application for asylum was made other than at the frontiers of the State the second named respondent shall (the emphasis is mine) have regard to whether the applicant had provided a reasonable explanation to show why he did not claim asylum immediately on arriving at the...