J (KJ) v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 04 March 2011
• Neutral Citation: [2011] IEHC 77
• Court: High Court
• Date: 04 March 2011

[2011] IEHC 77

THE HIGH COURT

[No. 3 J.R./2009]

J (KJ) v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

K.J.J.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

RSC O.84

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

K (G) v MIN FOR JUSTICE 2002 2 IR 418

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S13

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S11

REFUGEE ACT 1996 S11B

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

IMMIGRATION

Asylum

Tribunal decision - No substantial ground made out - Contested report - Lack of substantial explanation - Conclusion that applicant lacked credibility - Onus on applicant - Non-adversarial process - GK v Minister for Justice [2002] 2 IR 418 and R (I) v Minister for Justice [2009] IEHC 353, (Unrep, HC, Cooke J, 24/7/2009) considered - Illegal Immigrants (Trafficking) Act 2000 (No.29) s 5; Refugee Act 1996 (No.17), s11b - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Leave to issue judicial review proceedings refused (2009/3 JR - Cooke J - 4/3/2011) [2011] IEHC 77

J(KJ) v Refugee Appeals Tribunal and Ors

Facts The applicant had been refused refugee status in the State and had sought leave to bring judicial review proceedings against the decision of the Refugee Appeals Tribunal. Both the Refugee Appeals Commissioner and the Tribunal had concluded that the applicant's story of having been a bodyguard to his brother (a Taliban commander) and the circumstances of his arranged flight to be incredible. In addition the Tribunal had concluded that even if he was a credible person, he was not entitled to protection as low-ranking members of the Taliban were not at risk in Afghanistan. In order to maintain the proceedings the applicant also required an extension of time pursuant to section 5(2) of the Illegal Immigrants (Trafficking) Act 2000 ("the 2000 Act"). At issue were the assessment of the applicant's credibility and the difficulties the applicant claimed to have regarding the interpretation process at the hearing.

Held by Cooke J in refusing leave to bring proceedings. Having examined the explanations that had been furnished by the applicant to the Tribunal it was clear that the assessment of credibility could not be interfered with by way of judicial review. The complaint regarding interpretation issues was not supported by any other evidence. The Tribunal member drew from country of origin information the finding that former low ranking members of the Taliban who had renounced its membership no longer faced any risk of reprisal or ill treatment. No substantial ground has been made out as to why the contested report ought to be quashed. No serious issue has been raised which would justify the substantial extension of time required in order to grant leave. Leave was therefore refused.

Reporter: R.F.

1 JUDGMENT of Mr. Justice Cooke delivered the 4th day of March 2011

2 1. This is an application pursuant to Order 84 of the Rules of the Superior Courts and s. 5 of the Illegal Immigrants (Trafficking) Act 2000, for leave to apply for judicial review of a decision of the Refugee Appeals Tribunal dated the 28 ^th October, 2008, which rejected an appeal against the report and negative recommendation of the Office of the Refugee Applications Commissioner dated the 11 ^th July, 2007, on an application for asylum by the applicant.

3 2. The applicant is a national of Afghanistan and claims to be have been a former member of the Taliban who was forced to flee that country in fear of his life because of his involvement and association with his brother who was a commander in that force and who is now in hiding in Pakistan. The applicant arrived in the State on the 13 ^th December, 2006, his flight having been arranged by his father in law (to whom he had sold some of his family's farmland) with an agent who brought him to Dublin via Dubai and through some other airport he was unable to identify, but which was about one and a half hours from Dublin.

4 3. The application for asylum was rejected by both the ORAC and the RAT primarily because the story which the applicant gave of having been a bodyguard to his brother as a Taliban commander and the circumstances of his arranged flight was found to be incredible. The RAT additionally concluded that even if he was considered to be a credible person, he was not entitled to international protection because the country of origin information indicated that low ranking former Taliban members are not at risk in Afghanistan provided it is clear that they are not in opposition to the government. Whatever subjective fear he might have, therefore, was not objectively well founded.

5 4. As counsel for the applicant readily admitted, the application for leave faces a considerable obstacle in seeking to establish that this is an instance in which the High Court would intervene to upset a finding on credibility when it has been made in similar terms by two administrative decision makers who have had the benefit of hearing the applicant personally and observing the manner in which he gave evidence and his reaction to the questions put to him. The application is further complicated by the fact that an extension of the fourteen day time limit prescribed by s. 5 (2) is also required. The decision of the RAT was communicated to the applicant by letter of the 6 ^th November, 2008. The proceeding was not commenced until the 6 ^th January, 2009. The applicant concedes that he received the decision on or shortly after the 7 ^th November, 2008 and that he had wished to challenge it. He says that he consulted the solicitor he had retained at that point but was advised that there were no grounds for instituting judicial review proceedings. On the 17 ^th December, 2008, he went to a second solicitor who again advised him that instituting judicial review proceedings was not possible. He then consulted his present solicitor on the 22 ^nd December, 2008 and it was decided to obtain the opinion of counsel and give instructions for the preparation of the necessary proceedings. It was in those circumstances following the delay caused by the closure of offices over the vacation period that the proceedings came to be initiated.

6 5. The Court must therefore be satisfied not only that there is a substantial ground raised as to why the decision ought to be quashed, but also that there is good and sufficient reason to extend the time in order to enable the application to be brought. Given that the applicant had been twice advised against bringing judicial review proceedings, it cannot be said that any initial delay in abiding by the fourteen day time limit was attributable to any ignorance on the part of the applicant of the available remedy or the non availability to him of legal advice and representation. The Court is, however, entitled and obliged to consider whether there is nevertheless an important issue to be examined in the judicial review proceedings such that there is good and sufficient reason to extend the time in order to ensure that no injustice is done by depriving an applicant of the opportunity of having that issue examined. (See the judgment of Hardiman J. in G.K. v Minister for Justice [2002] 2 I.R. 418 at 423.)

7 6. It is necessary therefore, to examine whether any serious error has been committed in reaching the decision to affirm the recommendation of the ORAC in this case and, particularly, whether the approach to the assessment of credibility is shown to have been flawed in a material way. Before doing so, one preliminary observation may be helpful. When a challenge is raised on judicial review to the lawfulness of a decision based on an assessment of a claimant's credibility, it is important to bear in mind the nature of the administrative decision making process in understanding why the High Court will not intervene unless satisfied that it is necessary to do so in order not become a refugee by successfully pursuing an asylum application in a country of refuge. Individuals are refugees when they find themselves in one of the circumstances as giving rise to the entitlement to international protection in the Geneva Convention. The outcome of the asylum process is merely declaratory of that pre-existing status.

8 7. Although the onus remains with the asylum seeker to make good the claim, the process is one of enquiry and verification rather an adversarial contest. As is frequently pointed out, particularly in the guidance of the UNHCR, an asylum seeker with a genuine fear of persecution will frequently be someone who has fled an area of conflict and civil disorder in circumstances of urgency and peril and for that reason will arrive elsewhere without belongings or the means of establishing identity and nationality and without the possibility of acquiring original documentation because of the absence of civil administration which has caused the flight. Thus the plausibility of the account given, its susceptibility to verification by other sources and the personal believability of the claimant assume a central importance to the enquiry. In the absence of other factors raising doubts, the personal history recounted and the language spoken may suffice to establish the probability that the claimant has come from an area from which refugees are known to be in flight and has experienced the mistreatment described. Where, however, other factors are...