A (A H) v Refugee Appeals Tribunal & Min for Justice
| Jurisdiction | Ireland |
| Judge | Ms. Justice Dunne |
| Judgment Date | 18 December 2009 |
| Neutral Citation | [2009] IEHC 605 |
| Court | High Court |
| Date | 18 December 2009 |
[2009] IEHC 605
THE HIGH COURT
BETWEEN
AND
REFUGEE ACT 1996 S2
S (DVT) v MIN FOR JUSTICE & ORS 2008 3 IR 476 2007/54/11621 2007 IEHC 305
S (SS) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 14.7.2009 2009 IEHC 329
REFUGEE ACT 1996 S11B(A)
REFUGEE ACT 1996 S11B(C)
REFUGEE ACT 1996 S13(1)
REFUGEE ACT 1996 S11
IDIAKHEUA v MIN FOR JUSTICE & ORS UNREP CLARKE 10.5.2005 2005/31/6357 2005 IEHC 150
MOYOSOLA v REFUGEE APPLICATIONS CMSR & ORS UNREP CLARKE 23.6.2005 2005/40/8261 2005 IEHC 218
OLATUNJI v REFUGEE APPEALS TRIBUNAL (TAIT) & MIN FOR JUSTICE UNREP FINLAY-GEOGHEGAN 7.4.2006 2006/46/990 2006 IEHC 113
REFUGEE ACT 1996 S13
N (L) v REFUGEE APPEALS TRIBUNAL (ZAIDAN) & MIN FOR JUSTICE UNREP O'NEILL 7.10.2005 2005/44/9179 2005 IEHC 345
C (A) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP DUNNE 19.10.2007 2007/7/1425 2007 IEHC 359
IMMIGRATION
Asylum
Credibility - Assessment of credibility - Relevant considerations - Fair procedures - Whether manner in which credibility impugned complied with requirements of natural and constitutional justice or fair procedures - Requirement on member of tribunal to put matters of concern and/or perceived discrepancy to applicant and give them opportunity of dealing with same - Whether matter should have been put to applicant - DVTS v Minister for Justice [2007] IEHC 305, [2008] 3 IR 476 and SSS v Minister for Justice [2009] IEHC 329, (Unrep, Cooke J, 14/7/2009) applied - Idiakheuea v Minister for Justice [2005] IEHC 150, (Unrep, Clarke J, 10/5/2005); Moyosola v Refugee Applications Commissioner [2005] IEHC 218, (Unrep, Clarke J, 23/6/2005) and Olatunji v Refugee Appeals Tribunal [2006] IEHC 113, (Unrep, Finlay-Geoghegan J, 7/4/2006) followed - LN v Minister for Justice [2005] IEHC 345, (Unrep, O'Neill J, 7/10/2005) and AC v Minister for Justice [2007] IEHC 359, (Unrep, Dunne J, 19/10/2007) distinguished - Refugee Act 1996 (No 17), ss 2, 11 and 13 - Application granted; decision quashed and remitted for rehearing (2007/102JR - Dunne J - 18/12/2009) [2009] IEHC 605
A (A H) v Refugee Appeals Tribunal
JUDGMENT of Ms. Justice Dunne delivered on the 18th day of December, 2009
The applicant herein was given leave to apply for judicial review by order of the High Court on the 3 rd February, 2009 (McGovern J.). Leave was granted to apply for an order of certiorari of the decision of the first named respondent made on the 8 th December, 2006, upholding the decision of the Refugee Applications Commissioner that the applicant's claim for asylum in Ireland be refused. The grounds upon which leave was granted are as follows:
1. The first named respondent erred in law in holding that the applicant was not a refugee within the meaning of s. 2 of the Refugee Act 1996.
2. The first named respondent failed to take into account all relevant considerations in refusing the applicant's claim for asylum, and as such, the second named respondent has failed to act in accordance with fair procedures and natural and constitutional justice.
3. The first named respondent took into account irrelevant matters in arriving at its decision.
4. The first named respondent failed to give proper reasons and/or failed to make all necessary determinations in reaching the decision herein.
5. The first named respondent failed to act in compliance with the principles of natural and constitutional justice in refusing the claim for asylum herein.
Ultimately the decision of the Tribunal herein was a finding that the applicant lacked credibility. Accordingly, the thrust of the hearing before me was an attack on the findings of the Tribunal on credibility. It was contended that the manner in which the applicant's credibility was impugned does not comply with the requirements of natural and constitutional justice or fair procedures.
The applicant herein stated that he is a native of Somalia. He was born on the 27 th May, 1986. He arrived in the State on the 15 th March, 2005, and claimed asylum. Following his attendance at ORAC, his application for asylum was refused. He appealed to the Refugee Appeals Tribunal ("the Tribunal").
The oral appeal before the Tribunal took place on the 5 th October, 2006. The applicant had a witness in attendance with him to support his evidence and he had a report from SPIRASI which had not been available to him at the time of his attendance before ORAC. The appeal was refused in a decision made on the 8 th December, 2006, which was communicated to him by letter dated the 3 rd January, 2007. As pointed out above, the applicant takes issue with the decision of the Tribunal on a number of grounds. The specific points raised by the applicant can be summarised as follows:
1. The failure to attach any weight to the SPIRASI report.
2. The use of country of origin information, in particular, a failure to give the applicant credit for certain matters, for example, the misinterpretation of the meaning of the word "waar" by ORAC.
3. The findings of the Tribunal in relation to a timeline given by the applicant, an issue as to dependence, his travel through Dublin Airport and an issue that arose concerning blood transfusions.
4. Finally, the Tribunal raised the question as to whether the applicant was indeed from Somalia or had, in fact, lived there.
It would be helpful to outline in general terms the history of the applicant as told to ORAC and the Tribunal. The applicant stated that he is a Somali national of Reer Hamar ethnicity. His claim for asylum was based on grounds of race, being a member of a minority tribe. He stated that he had been targeted by the Hawiye clan and that he was kidnapped and forced into slave labour by them in 2002. He was released following the payment of a ransom by his father. His father, uncle and aunt were shot dead in 2003. He stayed away from the area at that time and moved to the home of one of his neighbours.
Subsequently, in 2004, he was kidnapped again and taken to a farm. He described having to work on the farm. Eventually, one night, he was ill - he said he was unconscious - he woke up and was able to run away. At this stage he had been detained for three months. He went to his home and stayed with a neighbour. Ultimately, he left Somalia on the 5 th February, 2005.
The manner in which a Tribunal should assess credibility has been considered in a number of cases. Further, the manner in which a court in judicial review proceedings should look at the findings of credibility by a Tribunal have also been considered in a number of cases. The principles applicable to the assessment of credibility have most recently been reiterated in the case of D.V.T.S. v. Minister for Justice, Equality and Law Reform [2008] 3 I.R. 476 by Edwards J., and in the case of S.S.S. v. Minister for Justice, Equality and Law Reform [2009] I.E.H.C. 329 by Cooke J.. In the latter case Cooke J. summarised the principles as follows at p. 3 of his judgment:
2 "1. The decision on credibility is to be made by the Commissioner at first instance and on appeal by the Tribunal Member.
2. Provided a finding on credibility is based on an objective appraisal of all relevant evidence and information and free from any material infringement of applicable law or the principles of natural or constitutional justice, it will be immune from challenge by judicial review.
3. This Court is not concerned with the issue of credibility itself and must not fall into the trap identified by Peart J. in the Imafu case of substituting its own assessment of credibility for that of the Decision Maker's during the asylum process.
4. The court is only concerned with the legality of the process by which these Decision Makers have reached a negative conclusion on credibility and once the court finds itself querying whether or not a Decision Maker had perhaps been too harsh in assessing the answers given to questions put in order to test credibility, where the questions are otherwise logical and appropriate in the testing process, the court is in danger of substituting its own view.
5. The court must also be wary of acceding to an invitation to deconstruct a decision on credibility by isolating individual parts of the appraisal and subjecting particular findings to distinct analysis.
6. In most instances a Decision Maker reaches a single overall conclusion on credibility based on a cumulative impression gleaned from the applicant's responses to questions on various parts of the claim and on the personal history as given, including the way in which the story is told, the applicant's demeanour and his or her reactions when doubt is expressed or discrepancies or contradictions are highlighted.
7. The Decision Maker must, of course, consider all pertinent evidence and information and must weigh the material objectively and not selectively.
8. The decision must therefore, be read as whole and an error in respect of one or more specific factors identified as undermining credibility will not invalidate the entire decision if the negative conclusion is adequately sustained by the remaining factors relied upon by the Decision Maker."
That decision seems to me to encapsulate the necessary principles to be considered by this Court in judicial review proceedings designed to challenge the decision of the Tribunal.
I now want to look in detail at the issues raised on behalf of the applicant herein through the prism of that decision.
I want to deal first with the complaint made in respect of the SPIRASI...
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