K(A) v Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Mr. Justice Herbert |
| Judgment Date | 04 February 2010 |
| Neutral Citation | [2010] IEHC 18 |
| Date | 04 February 2010 |
| Court | High Court |
[2010] IEHC 18
THE HIGH COURT
BETWEEN
AND
AND
AND
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)(J)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(B)
ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122
REFUGEE ACT 1996 S11A
IMMIGRATION ACT 2003 S7(F)
REFUGEE ACT 1996 S13
REFUGEE ACT 1996 S13(1)
S (DVT) v MIN FOR JUSTICE & ORS 2008 3 IR 476 2007/54/11621 2007 IEHC 305
L (LC) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP CLARK 21.1.2009 2009 IEHC 26
MIBANGA v SECRETARY OF STATE FOR THE HOME DEPT 2005 INLR 377 2005 EWCA CIV 367
M (N) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (ZAIDEN) UNREP MCGOVERN 7.5.2008 2008/38/8327 2008 IEHC 130
E (M) v REFUGEE APPEALS TRIBUNAL & ORS UNREP BIRMINGHAM 27.6.2008 2008/22/4746 2008 IEHC 192
IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416
KIKUNBI v REFUGEE APPEALS TRIBUNAL UNREP HIGH 7.7.2007 (EX TEMPORE)
REFUGEE ACT 1996 S16(16)
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)(A)
EVUARHERHE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 26.1.2006 2006/23/4726 2006 IEHC 23
O (K) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HEDIGAN 16.10.2008 2008/47/10221 2008 IEHC 313
K (G) & ORS v MIN FOR JUSTICE & APPEALS AUTHORITY & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557
IMMIGRATION LAW
Asylum
Fear of persecution - Medical evidence - Credibility - Country of origin information - Fair procedures - Whether substantial grounds - Whether grounds reasonable, arguable and weighty and not trivial or tenuous - Whether respondent fully considered evidence - Whether finding made on significant error of fact - Whether material errors in assessing credibility - Whether open to respondent to reach conclusion he reached - Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360; S(DVT) v Minister for Justice, Equality and Law Reform [2007] IEHC 305, [2008] 3 IR 476; E(M) v Refugee Appeals Tribunal [2008] IEHC 192, (Unrep, Birmingham J, 27/6/2008); Imafu v Minister for Justice, Equality and Law Reform [2005] IEHC 416, (Unrep, Peart J, 9/12/2005); Kikunbi v Refugee Appeals Tribunal (Unrep, HC, 7/7/2007); Evuarherhe v Minister for Justice, Equality and Law Reform [2006] IEHC 23, (Unrep, Clarke J, 26/1/2006); O(KO) v Refugee Appeals Tribunal [2008] IEHC 311, (Unrep, Hedigan J, 15/10/2008) and K(G) v Minister for Justice, Equality and Law Reform [2002] 2 IR 418 considered - Mibanga v The Secretary of State for the Home Department [2005] EWCA Civ 367, [2005] All ER(D) 307(Mar); L(LC) v Refugee Appeals Tribunal [2009] IEHC 26, (Unrep, Clark J, 21/1/2009) and M(N) v Minister for Justice, Equality and Law Reform [2008] IEHC 130, (Unrep, McGovern J, 7/5/2008) distinguished - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(1)(j) - Refugee Act 1996 (No 17), ss 11A, 13(1) and 16(16) - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Leave refused (2009/970 - Herbert J - 4/2/2010) [2010] IEHC 18
K(A) v Refugee Appeals Tribunal
Facts The applicant sought leave to apply, by way of judicial review, for an order of certiorari quashing the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicant should not be declared a refugee. It was submitted on behalf of the applicant, in support of this application, that the respondent failed to fully consider and give proper weight to the medical evidence, which it was submitted, was significantly supportive of the applicant's claim. Furthermore, it was submitted that the respondent made material errors in assessing the applicant's credibility and that the respondent did not consider the country of origin information and failed to determine the applicant's claim in the context of the country of origin information. The applicant relied on four previous decisions as supporting the application. It was submitted on behalf of the respondent that it was manifest from express references in the decision of the respondent that she had, in fact, carefully read and considered the medical documents presented by the applicant and decided that it was of no significant value in establishing the applicant's claim.
Held by Herbert J. in refusing the application: That the caselaw relied on by the applicant was distinguishable from the facts of this case. It was clear on the face of the decision of the respondent that she carefully considered the medical documentation, had full regard to their contents in the course of assessing the credibility of the applicant and did not relegate them to an afterthought. It was rational and reasonably open to the respondent to conclude, as she did, that the medical evidence established no more than that the applicant was found by her doctor to be seriously traumatised and depressed when seen by her at that time. The finding of the respondent in this regard was not made on a significant error of fact. The respondent found the applicant's oral evidence to be contradictory and it was open to the respondent, rationally and reasonably to reach the conclusion that the applicant was not credible. Having regard to the respondent's findings in relation to the credibility of the applicant, the respondent was entitled to consider it was not relevant to set out the various references in the country of origin information furnished by the applicant.
Reporter: L.O'S.
Mr. Justice Herbert delivered the 4th day of February, 2010
This is an application seeking leave to apply, by way of judicial review, for an order of certiorari quashing the Decision of the first named respondent made on 2 nd July, 2009, to affirm the recommendation of the Refugee Applications Commissioner that the applicant should not be declared a refugee. Alternatively or additionally the applicant claims various Declarations and, an Order remitting the matter to the Refugee Appeals Tribunal for a re-evaluation and reconsideration.
This application falls within the provisions of s. 5(1)(j) of the Illegal Immigrants (Trafficking) Act 2000. Subsection (2)(b) of that section provides, that leave shall not be granted unless this Court is satisfied that there are substantial grounds for contending that the decision of the Refugee Appeals Tribunal is invalid or ought to be quashed. In the Matter of the Reference of ss. 5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999, [2000] 2 I.R. 360 at 394-5, Keane C.J., for the Supreme Court, held that to be, "substantial", the grounds advanced must be "reasonable, arguable and weighty, and not trivial or tenuous". Section 11A of the Refugee Act 1996, (as inserted by s. 7(f)) of the Immigrant Act 2003), provides that where an applicant appeals against a recommendation of the Refugee Applications Commissioner made under s. 13 of the Act of 1996, it shall be for him or her to show that he or she is a refugee.
At the hearing of the Application, Ms. Cronin, B.L., representing the applicant, submitted that the decision of the respondent was invalid and ought to be set aside on three grounds:-
a A. The respondent had not fully considered and given proper weight to the medical evidence which, Counsel submitted, was significantly supportive of the applicant's claim.
b B. The respondent had made material errors in assessing the applicant's credibility.
c C. The respondent did not consider the country of origin information and, had failed to determine the applicant's claim in the context of the country of origin information.
As to the first ground: Counsel submitted that the respondent had failed to properly consider and, to give proper weight to a Report, furnished to the Refugee Appeals Tribunal on 27 th September 2005, from Dr. Helen Greally, a Clinical Psychologist, following upon a consultation with the applicant on 31 st August, 2005. The recommendation of the Refugee Applications Commissioner pursuant to the provisions of s. 13(1) of the Refugee Act 1996 (as amended), was made on the 23 rd April, 2005. Counsel for the applicant further submitted that the respondent had failed to properly consider and, to give proper weight to a letter dated 14 th June, 2005, from a Rape Crisis Centre.
Counsel for the applicant submitted that the respondent had wrongfully rejected this medical evidence and, had erroneously adopted a submission, made by the Presenting Officer that this medical evidence did no more than say that the applicant was traumatised and depressed and did not say how this came about. Counsel submitted that Dr. Greally's findings regarding the applicant's condition were consistent with the applicant having been raped in April, 2004 by a number of soldiers as she asserts and, that even if not conclusive in the matter were nonetheless significantly supportive of the applicant's claim.
Counsel for the applicant relied upon the following four decisions:-
D.V.P.S. v. Minister for Justice, Equality and Law Reform and Refugee Appeals Tribunal (Unreported, High Court, Edwards J., 4 th July, 2007).
L.C.L. v. Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform (Unreported, High Court, Clark J., 24 th January, 2009).
Mibanga v. The Secretary of State for the Home Department (Court of Appeal, Civil Division), ...
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