I.R v Minister for Justice, Equality and Law Reform and Another

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Cooke
Judgment Date24 July 2009
Neutral Citation[2009] IEHC 353
Date24 July 2009

[2009] IEHC 353

THE HIGH COURT

[No. 648 J.R./2007]
R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL
BETWEEN/
I.R.
APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL
RESPONDENTS

IMMIGRATION LAW

Asylum

Credibility - Country of origin information - Membership of political party - Discrepancies - Lack of knowledge regarding political party - Weight given to evidence in different forms - Whether duty to consider probative value of documentary and secondary evidence supportive of impugned oral evidence -Fair procedures - Whether obligation to state reasons for discounting secondary evidence - Relevant principles to be applied - Whether failure to consider contemporaneous documentation submitted by applicant - Jurisdiction of the court in judicial review - Memishi v Refugee Appeals Tribunal (Unrep, Peart J, 25/06/2003) , Kramarenko v. Refugee Appeals Tribunal [2004] IEHC 101 [2005] 4 IR 321, Traore v. Refugee Appeals Tribunal [2004] IEHC 606 (Unrep, Finlay Geoghegan J, 14/5/2004), Da Silviera v. Refugee Appeals Tribunal (Unreported, Peart J, 9/7/04), S v Minister for Justice [2005] IEHC 395 (Unrep, Peart J, 4/11/2005), Imafu v. Refugee Appeals Tribunal [2005] IEHC 182 (Unrep, Clarke J, 27/5/2005), Imafu v. MJELR [2005] IEHC 416 (Unrep, Peart J, 9/12/2005), Imoh v. Refugee Appeals Tribunal [2007] IEHC 220 (Unrep, Clarke J, 24/06/2005) , Banzuzi v. Refugee Appeals Tribunal [2007] IEHC 2 (Unrep, Feeney J, 18/1/2007), Kikumbi v. Minister for Justice [2007] IEHC 11 (Unrep, Herbert J. 2/7/2007), W(E)A v Refugee Appeals Tribunal [2008] IEHC 339 (Unrep, Hedigan J, 4/11/2008), NK v Refugee Appeals Tribunal [2004] IEHC 240 (Unrep, Finlay Geoghegan J, 2/4/2004), VZ v MJELR [2002] 2 IR 135, Simo v. Refugee Appeals Tribunal [2007] (Unrep, Edwards J., 4/7/2007), Zarandy v. SSHD [2002] EWCA 153 and R. v. Immigration Appeals Tribunal ex parte Sardar Ahmed [1999] INLR 7 - Refugee Act 1996 (No 17), ss 11(b) and 16(5)- EC (Eligibility for Protection ) Regulations 2006 (SI 518/2006) - Certiorari granted - (2007/648JR - Cooke J - 24/7/2009) [2009] IEHC 353

R(I) v Minister for Justice, Equality and Law Reform

Facts the applicant had been granted leave to seek judicial review of the decision of the respondent refusing his appeal against the recommendation of the Refugee Applications Commissioner that he not be recognised as a refugee on the grounds, 1, that there had been a failure to adequately consider the medical reports submitted: 2. That there had been a failure to consider and to make an assessment as regards credibility in respect of a body of specific documentation submitted which supported and corroborated his account of his mistreatment and of the events described in Belarus and; 3. That there had been a failure to assess the current and future risk to the applicant of persecution on return to Belarus as a failed asylum seeker and a person who had breached the draconian and repressive laws of Belarus.

Held by Mr. Justice Cooke in granting the relief sought that a decision-maker was not obliged to mention every argument or deal with every piece of evidence in an appeal decision at least so long as the basis upon which the lack of credibility of the applicant had been found could be ascertained from the reasons given. However, that proposition was valid only when the other arguments and additional evidence were ancillary to the matters upon which the substantive finding was based and could not by themselves have rendered the conclusion unsound or untenable if shown to be correct or proven. Where documentary evidence of manifest relevance and of potential probative force was adduced and relied upon, the respondent was under a duty to consider it and if it was discounted or rejected as un-authentic or unreliable or otherwise lacking probative value, there was a duty to state the reason for that finding. The process employed by the respondent in reaching the negative credibility conclusion as disclosed in the contested decision was fundamentally flawed because the documentary evidence which had been expressly relied upon before the Commissioner and in the notice of appeal and which was on its face relevant to the events on which credibility depended, was ignored, not considered, and not mentioned in the contested decision.

Reporter: P.C.

1

JUDGMENT of Mr. Justice Cooke delivered the 24th day of July, 2009.

2

1. In most forms of adversarial dispute the assessment of the credibility of oral testimony is one of the most difficult challenges faced by the decision-maker. The difficulty is particularly acute in asylum cases because, almost by definition, a genuine refugee will be someone who has fled home in circumstances of stress, urgency and even terror and will have arrived in a place which is wholly strange to them; whose language they do not speak and whose culture may be incomprehensible. Inevitably, many will have fled without belongings or documentation from areas in a state of anarchy or from the regimes responsible for their persecution so that obtaining any administrative evidence of their status and even identity may be impractical, if not impossible.

3

2. In such cases the decision-makers at first instance have the unenviable task of deciding if an applicant can be believed by recourse to little more than an appraisal of the account given, the way in which it was given and the reaction of the applicant to sceptical questions, to the highlighting of possible discrepancies or to contradictory evidence from other sources. Recourse will also be had in appropriate cases to what is called "country of origin information" but in most cases this will be of use only in ascertaining whether the social, political and other conditions in the country of origin are such that the events recounted or the mistreatment claimed to have been suffered, may or may not have taken place.

4

3. It is because in such cases the judgment of the primary decision maker must frequently depend on the personal appraisal of an applicant, that it is not the function of the High Court in judicial review to reassess credibility and to substitute its own view for that of the decision maker. Its role is confined when a finding of lack of credibility is attacked, to ensuring that the process by which that conclusion has been reached is legally sound and not vitiated by any material error of law.

5

4. While the problems inherent in the lawful assessment of testimony and other evidence going to credibility arise in a variety of forms of litigation and in other areas of judicial review, the guiding principles of the law have received particular attention in the case law relating to asylum in this jurisdiction and elsewhere in recent years and are possibly so well known to practitioners in the field as to have little need of resumé by this Court at this stage.

6

5. The background to that case law and the starting point for the decision-makers is, of course, the statutory provisions and guidelines relating to the process which they are required to follow in assessing claims to refugee status and to subsidiary protection. Both the Commissioner and the Tribunal in this jurisdiction are required by s. 11B of the Refugee Act 1996 to have regard to the thirteen particular matters listed at paras. (a) to (m) of that section when assessing credibility. For the most part these are factors or indicators which any experienced adjudicator will have in mind as a matter of common sense such as the truth of the explanation given as to how an applicant travelled to the State; why asylum was not sought in safe countries traversed en route and the use of forged documents for the making of false representations.

7

6. That mandatory check list is supplemented by the more pedagogic requirements of regulation 5 of the European Communities (Eligibility for Protection) Regulations 2006 which both prescribe matters to be taken into account in assessing facts and circumstances and, in subs. (2) and (3) give guidance as to the evaluation of persecution or serious harm already suffered and as to the circumstances in which aspects of statements unsupported by documentary or other evidence will not require confirmation.

8

7. Furthermore, authoritative guidance as to the approach to be taken in evaluating claims, in handling the burden of proof and according the benefit of doubt to an applicant is given in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1992) (see in particular the section "Establishing the Facts" at paras. 195-205).

9

8. The present case is one in which the decision of the Refugee Appeals Tribunal of 17 th April, 2007 now sought to be quashed, turns entirely upon the credibility of the applicant's account of his personal history and raises a number of the broad issues which are frequently encountered:

10

(i) how is this decision-maker to strike a correct balance when required to weigh evidence in different forms and of different quality:

11

(ii) if the decision maker doubts the plausibility of an account given in personal testimony what duty, if any, is there to consider and assess the probative value and effect of documentary evidence or other secondary information which appears to be supportive of the doubted testimony: and

12

(iii) where the decision-maker rejects as incredible the personal testimony of an applicant what is the extent of the obligation, if any, to state the reasons for the rejection or discounting of other inconsistent documentary evidence or secondary information?

13

9. Having regard to the fact that much of the relevant case law has been brought to the attention of the Court for consideration in the written submissions and oral argument in this case, it may be useful to attempt, so far as is relevant to the...

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