I.E. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Richard Humphreys
• Judgment Date: 15 February 2016
• Neutral Citation: [2016] IEHC 85
• Docket Number: [2015 No. 44 J.R.]
• Court: High Court
• Date: 15 February 2016

BETWEEN

I.E.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

AND

REFUGEE APPEALS TRIBUNAL

RESPONDENTS

[2016] IEHC 85

Humphreys J.

[2015 No. 44 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – The Refugee Act 1996 – Adverse credibility findings – Whether the decision-maker was bound to decide the core claim of the applicant – Fair hearing – Papers-only appeal

Facts: The applicant sought an order of certiorari for quashing the decision of the second named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicant should not be declared a refugee. The applicant contended that since it was a papers-only appeal, the second named respondent needed to exercise extreme care and assess the credibility of the applicant by considering the core claim of the applicant; however, the second named respondent considered the issues in relation to the applicant's date of birth, the possession of the U.K. visa, the travel to Ireland, the possession of the Nigerian passport, the entrance to Ireland and the delay in filing the asylum application, while making adverse credibility findings against the applicant.

Mr. Justice Richard Humphreys granted an order of certiorari to the applicant only on the ground that the second named respondent made an error in its decision when it stated that the applicant's claim was rejected by the Refugee Applications Commissioner under s. 13 (6) (a) of the Refugee Act 1996 rather than s. 13 (6) (c) of the said Act of 1996. The Court quashed the order of the second named respondent and remitted the matter for re-hearing. The Court held that though the error was in an introductory part rather than the binding part, yet it was not severable as it, prima facie, gave an impression that the decision-maker had approached the case on an incorrect basis since its inception. The Court, however, observed that s. 11B of the Act of 1996 allowed the decision-maker to consider the peripheral matters while making an assessment of the credibility. The Court opined that the credibility of a person in relation to matters that were impossible to verify could be determined by the reference to peripheral matters that could be verified and thus, it was appropriate for the decision-maker to apply the view so formed to the overall claim of the applicant. The Court suggested that the questions set out by Mac Eochaidh J. at para 30 in R.O. v. Minister for Justice and Equality [2012] IEHC 573, for the determination of credibility should be replaced by making the applicant to discharge the burden of proof that the reasons offered by the decision-maker for the rejection of credibility was unreasonable to the extent that it should be set aside. The Court held that the statement of Cooke J. in I.R. v. Minister for Justice, Equality & Law Reform [2009] IEHC 353, that the reasons given by the decision-maker must be based on substantive basis of the core claim rather than minor matters, should not be given a literal and strict interpretation.

JUDGMENT of Mr. Richard Humphreys delivered on the 15th day of February, 2016

1 The applicant was born in Nigeria in 1977, although, when claiming asylum, he stated incorrectly that he was born in 1985.

2 He received a six month visa from the U.K. Border Agency on 28th May, 2009. In July, 2009 in came to the UK for two weeks, and says that he returned to Nigeria on 27th July, 2009.

3 His claim of asylum relates to a land dispute that appears to have broken out in early 2012, in which he says an uncle was seeking to steal land belonging to him or his father. He was attacked and hospitalised, and then fled Nigeria.

4 He says he arrived in Ireland in January 2013. He was arrested on 10th June, 2013, and shortly thereafter, on 14th June, 2013 made an application for asylum. This was rejected by the Refugees Application Commissioner, a decision which he appealed to the Refugee Appeals Tribunal.

5 The tribunal rejected his appeal on 15th December, 2014. It is important to note that the appeal to the tribunal was by way of a written procedure only, because the commissioner had made a finding pursuant to s. 13(6)(a) of the Refugee Act 1996, that he had not applied for asylum as soon as practicable after arrival in the State.

6 Leave to seek judicial review was granted by MacEochaidh J. on 16th January, 2015, including an order extending time, and an amended statement of grounds within the terms of the order granting leave was filed on 24th February, 2015.

7 While not strictly relevant to the present application, I note that on 20th November, 2015, he applied for residency in the State based on marriage to an Irish citizen.

Extension of time

8 As noted above, an extension of time was granted by Mac Eochaidh J at the ex parte stage. The respondents have an entitlement to dispute this because they were not represented at that stage (but not otherwise), but they confirm that they take no issue with this. I am grateful to Ms. Emma Doyle B.L. for the respondents for taking a practical approach to this aspect. In any event the application was made only slightly outside the statutory period and I probably would have been minded to regard the extension of time as being appropriate.

Does the tribunal have to decide the ‘core claim’ of persecution?

9 In this case, the adverse credibility finding is based on matters relating to issues such as the applicant's travel arrangements rather than the account of persecution as such. Mr. Michael Conlon, S.C. (with Mr. Garry O'Halloran B.L.) appearing on behalf of the applicant, submitted that the tribunal is under an obligation to decide the ‘core claim’ and in this case failed to do so. By ‘core claim’ I understood him to mean the existence or otherwise of a well-founded fear of persecution. The central element of that question is normally the issue of whether the persecution alleged by the applicant actually happened.

10 The primary authority relied on in this regard was E.P.A. v. Refugee Appeals Tribunal [2013] IEHC 85 (Mac Eochaidh J., para. 9), in which the tribunal was criticised for failing to give a ‘ clear and reasoned finding on the central issue’, the central issue in that case being the sexual orientation of the applicant, which was relevant to his persecution claim.

11 However, in P.D. v. Minister for Justice, Equality and Law Reform [201] IEHC 111, Mac Eochaidh J. took a somewhat different approach and emphasised that it was too simplistic to say that the tribunal must always consider the core claim of an applicant.

12 I followed the P.D. decision in my judgment in R.A. v. Refugee Appeals Tribunal (No. 1) [2015] IEHC 686, at paras. 34–35, where I pointed out that because asylum claims require a number of elements, it is unnecessary to require a decision-maker to decide on every element when an adverse finding has been made in respect of one such element. That aspect of R.A. was subsequently quoted with apparent approval by Stewart J. in E.K.K. v. Minister for Justice and Equality [2016] IEHC 38 at para. 52. The approach taken in R.A. was that if an asylum claim failed to surmount any one of a number of distinct and separate hurdles for the success of such an application, nine of which were identified in the judgment, there is no necessity to go on to consider any other element of the claim. Thus, where an applicant's credibility is rejected generally, the tribunal does not need to make any specific finding on whether the acts of persecution actually occurred or to what extent or whether any other element of the test for a well founded fear of persecution exists.

13 Having said that, there may be exceptional cases where the entire story of the applicant is not rejected, and despite a general absence of credibility, a risk of persecution can arise from such limited ‘ islands of fact’ as may be left intact despite the lack of credibility. For example, if it is established that an incredible applicant is nonetheless, as a matter of fact, a member of a particular tribe, who are at risk in a particular country, further analysis may be required by the tribunal, despite what might otherwise be a general rejection of the applicant's credibility (see M.A.M.A. v. Refugee Appeals Tribunal [2011] 2 I.R. 729).

14 The approach I have discussed is consistent with a number of other decisions including Ojelabi v. Refugee Appeals Tribunal [2005] IEHC 42 (Peart J.); Imafu v. Minister for Justice, Equality and Law Reform [2005] IEHC 416 (Peart J.); and J.X. v. Refugee Appeals Tribunal, (Unreported, 2nd June, 2005) (Clark J.).

15 For the reasons discussed in my judgment in R.A., I would therefore prefer the approach taken in E.K.K., P.D., Ojelabi, Imafu and J.X. to any interpretation of E.P.A. that would suggest that there is any general obligation to provide a specific finding on any issue that the applicant considers essential, such as his or her claim of persecution or any element of that story.

Does the tribunal need to state whether the core claim is accepted?

16 In M.A. (Nigeria) v. Refugee Appeals Tribunal [2016] IEHC 16, at para. 16, Stewart J. stated that an applicant was entitled to a clear decision as to whether the core claim was being accepted, and if not, of the reason for rejection.

17 Again, I am not altogether convinced that the expression ‘ core claim’ is entirely helpful. As stated in R.A., an asylum seeker must meet a whole series of thresholds, all of which are, in this sense, ‘ core’. To that extent, every decision of the tribunal must indicate whether the claim is being accepted, as it must state as result. I do not think that the view taken by Stewart J. in M.A. is to be read is indicating that the tribunal must specifically state whether the incident of persecution occurred, or whether the tribunal accepts any other element of the applicant's story that the...