Lilia Nicolai v Des Zaidan

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 07 October 2005
• Neutral Citation: [2005] IEHC 345
• Docket Number: [No. 644 JR/2004]
• Court: High Court
• Date: 07 October 2005

[2005] IEHC 345

THE HIGH COURT

[No. 644 JR/2004]

NICOLAI v REFUGEE APPEALS TRIBUNAL (ZAIDAN) & MIN FOR JUSTICE

JUDICIAL REVIEW

BETWEEN

L. N.

APPLICANT

AND

DES ZAIDAN (SITTING AS THE REFUGEE APPEALS TRIBUNAL) AND THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S16(16)

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S16(2

REFUGEE ACT 1996 S13(1)

BUJARI v MIN FOR JUSTICE UNREP HIGH COURT FINLAY GEOGHEGAN 7.5.2003 2003/7/1414

IMAFU v MIN FOR JUSTICE & ORS UNREP HIGH COURT CLARKE 27.5.2005

IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HIGH COURT CLARKE 10.5.2005 2005 IEHC 150 2005/31/6357

IMMIGRATION

Asylum

Judicial review - Credibility of applicant - Whether assessment of credibility of applicant matter for court on judicial review - Application refused (2004/644JR - O'Neill - 7/10/20050 [2005] IEHC 345

NICOLAI v REFUGEE APPEALS TRIBUNAL (ZAIDAN) & MIN FOR JUSTICE

Facts: The applicant sought an order of certiorari quashing the decision of the respondent refusing to grant her refugee status. The applicant alleged that the finding by the respondent that her story was not credible was reached without carrying out a proper assessment of credibility. The applicant further claimed that certain matters were not put to her, which ultimately became significant factors in the assessment of her credibility.

Held by O’Neill J. in dismissing the application:

1. That the respondent assessed credibility correctly by reference to factors set out in its decision, which it was entitled to treat as factors relevant to an assessment of the applicant’s credibility.

2. That there was no evidence as to what took place at the oral hearing of the applicant’s appeal. In any event, there was no dereliction by the respondent in failing to put certain matters expressly to the applicant at the oral hearing.

Reporter: L.O’S.

O'Neill J.

1 In this case by order of the 5^th April, 2005, Clarke J. gave leave to the applicant to apply for judicial review and for an order of certiorari quashing the decision of the Refugee Appeal Tribunal impugned in these proceedings. The history of the matter may be summarised as follows:

2 The applicant is a Moldovan. She was born in 1974. She is a married lady, twice married, having married at the early age of about eighteen in 1992 and was widowed in 1994. She married again in the year 2000 to her present husband. She has one child, a daughter born in 1992. The events which led up to these proceedings appear to begin in the year 2002. In that year it would appear that there was a change of government in Moldova. The communist party was elected to power and thereafter the difficulties of which the applicant complains appear to have begun. The applicant was involved in politics. She was a member of a political party which was opposed to the communist party and she attributes her difficulties to that fact. The events which were primarily the subject matter of her complaint appear to have started towards the latter half of 2002. In October 2002, around the time or shortly after, she had organised a TV crew to film a political meeting which she was involved in, she claims that she was subject to an assault by way of a hit and run crash. She was hospitalised at that time for approximately ten days and unfortunately as a result of this incident she suffered a miscarriage, she being then seven months pregnant. Shortly thereafter in the month of November, she appears to have been back in hospital again, but with an entirely naturally occurring complaint, high blood pressure it would appear, and she received treatment in hospital for that during the month of November of 2002. Then in the month of January 2003, she was back in hospital again for surgery for another naturally occurring complaint.

3 In the meantime her husband had left and had apparently attempted to come to Ireland and indeed had succeeded in getting into Ireland. He, in all, made three asylum applications all, it is common case, under different names, at different times and at different places. As a result of the difficulties that his wife was having he returned to Moldova and he was arrested apparently when he returned and he was detained for some fifteen days.

4 The next significant incident that occurs appears to have been on 7^th July, 2003 and at that time after a political meeting, she claims that she was assaulted by a man that she was unable to identify, who apparently disappeared into the crowd and the crowd were unable to apprehend him and as a result of that she suffered what appears to be a relatively minor injury to her face. After that particular incident she went to live with her uncle and thereafter she left Moldova and ended up in Ireland.

5 She left Moldova on the 25^th August, 2003. The method by which she left was that she drove to Bucharest. She had obtained a one month tourist visa for the U.K. which was from 1^st August, 2003 to 1^st September, 2003 and with the benefit of that visa she flew from Moldova to London. She then flew on from there to Belfast and then she travelled by taxi from Belfast to Dublin. On 4^th September, 2003, approximately a week later she made her application for asylum. Having done that she then went through the normal procedures that are set out in the 1996Refugee Act. She first of all filled in a lengthy questionnaire. Thereafter an interview was arranged with the Refugee Applications Commission and that interview was conducted and following upon that interview, the Commission in its s. 13 report, recommended that she not be accorded refugee status. She appealed against that and her appeal in due course came on before the Refugee Appeal Tribunal and it, by its decision, affirmed or agreed with the decision of the Commission and again recommended that she be refused refugee status. Following upon that she then instituted these judicial review proceedings which have come on for hearing before me.

6 The evidence that is before me consists of the affidavit and exhibits which are contained therein which are notedly the questionnaire, the interview notes, the s. 13 report and the grounding affidavit of Anne Fitzgibbon who, is the solicitor for the applicant and there is a separate affidavit from the applicant in which she agrees with the averments in the affidavit of Anne Fitzgibbon. Unfortunately what is not before me is any evidence at all in either affidavit as to what exactly happened in the hearing before the Tribunal nor is there anything in the way of a transcript of that hearing. The grounds upon which she has got leave to apply, all centre around the content of the decision of the Refugee Appeal Tribunal and I propose at this stage to read the operative part of that decision. It comes under the side heading of "Decision" and all of it is relevant to the argument that arose and hence I think it appropriate to quote it in its entirety and it is as follows:

"DECISION

7 I have carefully considered all of the papers submitted to me for the purposes of this appeal and all of the matters required to be considered under Section 16 (16) of the 1996 Act. The applicant must satisfy me that she has a well-founded fear of persecution for one of the reasons set out under Section 2 of the 1996 Act. I have considerable hesitation in believing the whole story of the applicant because of the inconsistencies and omissions between the information contained in the application for refugee status Questionnaire, the Interview notes and the evidence given by the applicant at the oral hearing. The Burden of Proof lies primarily with the applicant. The applicant's claim must be coherent and plausible. The hearing before the Tribunal is not a De Novo hearing in the true sense. There is an independent investigation and under the 1996 Act the Tribunal is required to consider matters under Section 16 (16). The Tribunal refers to the judgement of Mr. Justice Smyth in Yacef and the Minister for Justice, Equality and Law Reform delivered on the 4^th October, 2002 in this regard. I note that the applicant submitted three medical reports two following the alleged hit and run incident in October of 2002 and the third following an alleged assault on 3^rd July, 2003, prior to coming to Ireland. I note the contents of these reports but did not find them to be of any probative value. I also note that the applicant confirmed in evidence that she was not under any surveillance between October 2002, the date of the alleged hit and run and July 2003, when she apparently was assaulted when she left a meeting. I also note that the applicant confirmed to the Tribunal in relation to both of these incidents that she did not know the identity of the assailants or did not have any independent evidence to assist the police in their investigation. I note that she indicated that when she went to report the incidents to the police she was verbally abused. She claimed they laughed at her because she could not give them details or her allegations. According to the applicant, they asked her how does she think the police could help her otherwise. I also note that the applicant travelled to the UK on a valid one month tourist Visa with her daughter. She did not seek asylum in the UK. Her reasons for not doing so is not plausible. I also note that the applicant claims that she left Moldova on 25^th August, and arrived in Ireland on 28^th August, 2003. Her passport was stamped at Heathrow on the 26^th August, 2003. However the applicant did not apply for asylum until the 4^th September, 2003. This would indicate that the applicant did not apply for asylum immediately on entering the State.

8 I also note that while the applicant alleged that she was the victim of a hit and run when she was seven months pregnant, she was unable to provide a reasonable explanation to the...