Llanaj v Shivnen acting as Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: MR JUSTICE FEENEY
• Judgment Date: 09 February 2007
• Neutral Citation: [2007] IEHC 53
• Court: High Court
• Date: 09 February 2007
• Docket Number: [952/JR/2005]

[2007] IEHC 53

THE HIGH COURT

[952/JR/2005]

Llanaj v Refugee Appeals Tribunal (Shivnen)

BETWEEN

FUAT LLANAJ

APPLICANT

-and-

DOREEN SHIVNEN ACTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENT

-and-

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

FIRST NOTICE PARTY

-and-

IRELAND AND THE ATTORNEY GENERAL

SECOND NOTICE PARTY

EX TEMPORE JUDGMENT OF

MR JUSTICE FEENEY

delivered on the 9th day of February, 2007

1 I have had the benefit of detailed legal submissions and also I have had the benefit of reading the written legal submissions that were submitted on behalf of the Applicant and the Respondents. They have been of considerable assistance to me in enabling me to arrive at the following decision.

2 The applicant in this case is an Albanian national who seeks to quash the decision of the Refugee Appeals Tribunal. The Applicant indicates that he left Albania because he was persecuted in that country in two different ways. Firstly, he claims that as a police officer in the course of a particular arrest he became identified to dangerous criminals who subsequently threatened and intimidated him to the point of setting off an explosion adjacent to his family home. Secondly, a member of his family, that is his brother, was involved in a motor accident where a person was killed and that resulted in a blood feud. The Applicant claims that he resigned from the Police Force and moved to another town and then left Albania leaving his wife and two young children behind him in that country. The Applicant had a rank of Chief Assistant and was a member of the Rapid Reaction Force during the period he worked in Albania, having joined the Albanian Police Force in approximately 1996. The Applicant indicated that he had had approximately eight years experience as a police officer.

3 The Applicant's claim was rejected by both the Refugee Applications Commissioner and by the Refugee Appeals Tribunal, including on the grounds of credibility. An application was then taken for judicial review and an order was made by Ms Justice Dunne in the High Court on 24th May 2006 granting the Applicant leave to apply for judicial review on four stated grounds. Those four stated grounds are set out and are headed, "Post-Leave Grounds Upon Which Relief is Sought", and they are in paragraphs 1-4. I shall use the same numbering later in this judgment.

4 It is appropriate to identify certain legal principles which are of importance in relation to this decision. The first case which illustrates the approach which this court believes it is both correct, proper and necessary to take is to be found in a statement of the law byPeart J in Iamfu. V. Minister for Justice Equality and Law Reform & Othersin an unreported judgment delivered on 9th December 2005. In that judgment on page 11 Mr Justice Peart stated:

"This court must not fall into the trap of substituting its own view on credibility for that of the Tribunal Member. The latter, just as a trial judge is at a trial rather than the appellate court, is in the best position to assess credibility based on the observation and demeanour of the applicant when she gives her evidence. These are essential tools in the assessment of credibility and it is always essential to remember that what appears as the spoken word in a transcript or in a summary of evidence contained in any written decision cannot possibly convey the necessary elements for the assessment of credibility. That is what a court will be reluctant to interfere in a credibility finding by an inferior tribunal, other than for the reason that the process by which the assessment of credibility has been made is legally flawed."

5 It is that approach which this court will follow. This court must, if it is to grant the relief sought, identify on the facts of this case circumstances which demonstrate that the process by which the assessment of credibility is legally flawed.

6 A second legal authority which is of significance in relation to the circumstances and facts of this case is the recent decision of Herbert J. inKvaratskhelia v. The Refugee Appeals Tribunal and Another which is reported in 2006 IEHC at 132. On the first page of that judgment Herbert J. identified and approved of a quotation from Hathaways textbook The Law of Refugee Status in the following words:

"Obviously there cannot be said to be a failure of State protection where a government has not been given an opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming."

7 Later on in that judgment Mr Justice Herbert stated at page 134 as follows:

8 "Apart from those calamitous cases where the total failure or repressive subversion of all State institutions has become so notorious that the fact that a particular State is no longer capable or willing to vindicate the human rights of all its nationals must be accepted without the need for actual evidence, it would in my judgment be contrary to reason to require a requested State to approach every...