Keagnene v Minister for Justice, Equality and Law Reform and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 31 January 2007
• Neutral Citation: [2007] IEHC 17
• Docket Number: [No. 229 JR/2004]
• Court: High Court
• Date: 31 January 2007

[2007] IEHC 17

THE HIGH COURT

[No. 229 JR/2004]

KEAGNENE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (NICHOLSON)

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996, IMMIGRATION ACT 1999

AND THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

BETWEEN

MAHAN PHILIPPE KEAGNENE

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL (TRIBUNAL MEMBER JAMES NICHOLSON)

RESPONDENTS

JUDGMENT of

Mr. Justice Herbert

delivered on the 31st day of January 2007

1 In his decision the Member of the Refugee Appeals Tribunal found that this Applicant for Judicial Review, was not credible or trustworthy and, held that he could not rely upon his unsupported testimony. The Member of the Refugee Appeals Tribunal gave six reasons for this finding.

2 The Member of the Refugee Appeals Tribunal found that the Applicant was unable to name his wife's brother in Bouafle, with whom she claimed she had stayed for seven months prior to her coming to this State. The Applicant and his wife had been married for eleven years. When pressed on this topic the Member of the Refugee Appeals Tribunal found that the Applicant was evasive and for several minutes had refused to cooperate with the Tribunal. The Applicant then initially responded by stating, "We are all brothers in Africa", but later stated that he did not know this man's name.

3 At para. 35 of his Affidavit grounding this application for Judicial Review, the Applicant contends that he became upset and apprehensive by reason of the aggressive nature of the questioning and, that what he had wished to convey to the Tribunal was that even very distant relatives can be referred to as "brothers" in Africa. I find that it is a matter entirely for the Member of the Refugee Appeals Tribunal to evaluate and to give what weight (if any), he or she considers to be appropriate to the evidence given to the Tribunal. It is not a matter for this court on an application for judicial review.

4 The Applicant was represented before the Refugee Appeals Tribunal by an experienced solicitor and by Counsel with a particular speciality in this field. Bias on the part of the Member of the Refugee Appeals Tribunal, in refusing to accede to an application for an adjournment of the oral hearing, was initially one of the grounds upon which this application for Judicial Review was based. However, in the course of the hearing this allegation was withdrawn and a complaint of procedural unfairness on the part of the Member of the Refugee Appeals Tribunal was substituted for it. No complaint was made to this court of inappropriate behaviour on the part of the Member of the Refugee Appeals Tribunal or the Presenting Officer towards this Applicant. The onus is on the Applicant to directly make and to prove what must amount to a very serious imputation again the fairness and impartiality of the Member of the Refugee Appeals Tribunal and the Presenting Officer and a disquieting reflection on the fairness and appropriateness of the appeal process itself. I find that no such specific complaint was formally made, put in issue before this court and duly proved. I am therefore satisfied that this was a valid and appropriate reason on which it was open to the Member of the Refugee Appeals Tribunal to base his decision.

5 Having regard to the evidence of the Applicant that he was employed as a sales representative for a construction company in the Ivory Coast, owned by his mother's brother and, prior to the coup d'etat in the Ivory Coast he had travelled, on his own passport, to Senegal on company business, the Member of the Refugee Appeals Tribunal found that his inability to produce any documentation to support these claims undermined his credibility. This evidence is repeated at para. 20 of the grounding Affidavit sworn by the Applicant in support of this application for Judicial Review, but no issue is taken with the finding by the Member of the Refugee Appeals Tribunal that the Applicant could not produce a single document which would support his contention.

6 The Member of the Refugee Appeals Tribunal found particularly incredible the Applicant's explanation that he had given his passport to a Pastor, whose name he reluctantly gave as Boula and, to whom he said he had paid 2.8 million CFA to bring him to Ireland from Senegal, when on his own evidence he was a business man who was travelling outside his country of origin on his own passport. At para. 22 of the grounding Affidavit the Applicant states:-

"I received assistance in arranging my passage and exit from Senegal from a Pastor with whom I had struck up an association while in Senegal who acted as agent and travel facilitator for me in return for a fee and accompanied me on my journey."

7 At para. 23 of his grounding Affidavit the Applicant states:-

"I was asked by the Tribunal whether I had a membership card for the PDCI with me in Ireland and I explained that I did not bring my PDCI Membership card to Senegal with me as I was not expecting to need it in Senegal nor was I expecting that I would have to flee in fear of persecution and not be able to return to my country of origin."

8 I find that it was both rationally and reasonably open to the Member of the Refugee Appeals Tribunal to arrive at the conclusions which he did for these stated reasons and that the conclusions reached were not unjust, unfair or flying in the teeth of commonsense.

9 The fourth reason given by the Member of the Refugee Appeals Tribunal for his finding that the Applicant was not credible or trustworthy is as follows:-

"I find that the Applicant's evidence that he was unaware of Mr. B's current situation, to undermine his credibility. Given that Mr. B. was his uncle I find it inconceivable that the Applicant would not have made enquiries from the Ivorian Association in Dublin, of which he is a member, of the whereabouts of his uncle."

10 It was submitted on behalf of the Applicant that each of these conclusions on the part of the Member of the Refugee Appeals Tribunal was reached by a route which was improper, unjust and procedurally unfair.

11 There was no suggestion that this Applicant either denied or concealed that he was a member of the Ivorian Relief Association in Dublin. Counsel on behalf of the Applicant directed his criticism of the decision of the Member of the Refugee Appeals Tribunal to the fact that the Applicant was not asked, either by the Presenting Officer or by the Member of the Refugee Appeals Tribunal, if he had made enquiries through the Ivorian Relief Association regarding the whereabouts or current circumstances of Mr. B., "given that Mr. B., was his uncle".

12 At para. 32 of his Affidavit grounding this application for Judicial Review, the Applicant states as follows:-

"32. In the course of giving my account of events to the Tribunal, I explained that I was a leading member of the Ivorian Relief Association in Ireland (IVORA) and I produced for inspection by the Tribunal Member a membership card from which it is clear that I have a leading and prominent role in the Association as Vice-President. I was not asked directly at the hearing whether and if so to what extent this Association had made efforts to establish the whereabouts of EB. I had already referred in my account of events to the very recent newspaper article (exhibited at "PK 8" herein) confirming that his whereabouts was unknown. I beg to refer to the membership card in relation to the Ivorian Relief Association as produced and tendered to the Tribunal Member at the hearing upon which marked with the letters "PK 14" I have endorsed my name prior to the swearing hereof."

13 No replying Affidavit, taking issue with what is averred by the Applicant in this paragraph was filed by or on behalf of the Presenting Officer or the Member of the Refugee Appeals Tribunal. In these circumstances I accept the recollection of the Applicant. I also accept the submission by Counsel for the Applicant that the conclusion of the Member of the Refugee Appeals Tribunal that the Applicant had made no enquiries as to the whereabouts of his uncle from the Ivorian Relief Association in Dublin had no basis in evidence and amounted to supposition on the part of the Member of the Refugee Appeals Tribunal. But for the very strong terms employed by the Member of the Refugee Appeals Tribunal in stating this reason I would be inclined to attach little weight to this criticism of the decision-making process. The primary onus of establishing his claim lies on the Applicant and, I believe that it would have been properly open to the Member of the Refugee Appeals Tribunal to have expressed surprise that the Applicant had not given evidence of making enquiries as to the whereabouts of his uncle through the Ivorian Relief Association in Dublin, particularly having regard to the evidence before the Tribunal that Mr. B., was a person of very considerable public and political stature in the Ivory Coast. In addition, the Applicant in his grounding Affidavit does not say that he did make such enquiries from or through the Ivorian Relief Association in Dublin. However, the fact still remains that the Member of the Refugee Appeals Tribunal assumed, without evidence, that the Applicant had not made such an enquiry or enquiries. On a stand alone basis, I find this ground of complaint to be excessively technical and in the circumstances do not find it sufficiently compelling in itself to persuade the court to exercise its discretion in favour of the Applicant.

14 Senior Counsel for the Respondents interpreted the phrase, "given that Mr. B., was his uncle", in the finding of the Member of the Refugee Appeals Tribunal as being the equivalent of "assuming that". Counsel for the Applicant submitted that it meant, "accepting that". In my judgment, Senior Counsel for the...