M.A.I. v Minister for Justice Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 19 December 2014
• Neutral Citation: [2014] IEHC 623
• Court: High Court
• Date: 19 December 2014

[2014] IEHC 623

THE HIGH COURT

[No. 825 J.R./2010]

I (MA) v Min for Justice & Ors

BETWEEN

M.A.I.

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S8

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S16(11)(D)

GOOWIN-GILL & MCADAM THE REFUGEE IN INTERNATIONAL LAW 3ED 2007

REFUGEE ACT 1996 S6

N (AZ) v REFUGEE APPEALS TRIBUNAL (GARVEY) & MIN FOR JUSTICE UNREP CLARK 7.10.2009 2009/41/10288 2009 IEHC 432

F (B) v MIN FOR JUSTICE & ORS UNREP PEART 2.5.2008 2008/23/4968 2008 IEHC 126

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)

IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416

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

Q (KN) [IRAQ] v CHAIRPERSON OF REFUGEE APPEALS TRIBUNAL & ORS UNREP CLARK 14.3.2013 2013/43/12444 2013 IEHC 117

HORVATH v SECRETARY OF STATE FOR THE HOME DEPT 1999 IMM AR 121 1999 INLR 7

A (OA) v MIN FOR JUSTICE UNREP FEENEY 9.2.2007 2007/4/605 2007 IEHC 169

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)(A)

T (F) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP MACEOCHAIDH 18.4.2013 2013/49/13971 2013 IEHC 167

O (R) (AN INFANT) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (LEVEY) UNREP MAC EOCHAIDH 20.12.2012 2013/40/11767 2012 IEHC 573

N (AZ) v REFUGEE APPEALS TRIBUNAL (GARVEY) & MIN FOR JUSTICE UNREP CLARK 7.10.2009 2009/41/10288 2009 IEHC 432

KIKUMBI v REFUGEE APPLICATIONS CMSR & MIN FOR JUSTICE UNREP HERBERT 7.2.2007 2009/31/7713 2007 IEHC 11

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)

E (D) & ORS v REFUGEE APPEALS TRIBUNAL & ORS UNREP MAC EOCHAIDH 25.6.2013 2013/17/5113 2013 IEHC 304

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)(A)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)(B)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)(C)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)(D)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)(E)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)(B)

S (AA) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP MAC EOCHAIDH 7.2.2013 2013/46/13101 2013 IEHC 44

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

Administrative & constitutional law – Judicial review – Refugee claim – Applicant seeking review of decision of Refugee Appeals Tribunal

Facts: The applicant sought leave to appeal to bring a judicial review claim in respect of a decision of the Refugee Appeals Tribunal to refuse his appeal against a decision by a Commissioner.

Ms. Justice Faherty stated that the decision below was based on the applicant”s lack of credibility. The applicant raised a number of grounds of appeal, inter alia the lack of a proper interpreter on the day of hearing. Having considered the grounds of appeal, the Court was satisfied that the claim had been made out for granting leave to appeal. The matter would be remitted for reconsideration.

1 1. This is a telescoped application for leave to seek judicial review of a decision of the Refugee Appeals Tribunal dated 17 ^th May 2010 refusing refugee status to the applicant. The applicant seeks, inter alia, an order of certiorari quashing the decision and an order of mandamus directing the matter to be remitted to the Tribunal for reconsideration.

Background

2 2. The applicant is a member of the Kurdish speaking Zebari tribe and is from Iraq. He arrived in Ireland on the 17 ^th October 2008. He sought refugee status on the same date. The applicant claims he fears persecution from an unnamed terrorist group in the following circumstances.

3 3. The applicant worked as a shepherd in a village some 25km from his home. He was employed by the village Mukhtar and lived in the Mukhtar's house. His work schedule was as follows: He would take his flock of sheep from the village across countryside into different areas of the mountains approximately 1- 1 ½ hours away. He claims that on the 15 ^th September 2008, while working he was approached by four masked men driving a car who informed him that they wanted him to park a car full of explosives in front of a police station. The applicant believed the men to be terrorists but did not know which terrorist group they represented as they did not tell him. He agreed to meet these men again the following day at the same location. The applicant returned home to his mother in his home village with whom he recounted what had occurred. Accompanied by his mother, he went to the police and informed them of his encounter. According to the applicant, the police did not believe him as he was only a shepherd and had brought no proof. While the applicant resumed his work as a shepherd the following day, he did not return to the area where he had encountered the masked men and accordingly did not keep his appointment with them. Some four days later, his mother came to his place of work and informed him that on two occasions she had been visited by men at her home. On each occasion the men were dressed normally and spoke politely to her and had told her that they wished to see the applicant who, they said, had agreed to do a job for them. According to the applicant, it was on the second occasion that his mother had realised that these were the same men who had asked the applicant to carry out an act of terrorism. His mother advised him to escape. The applicant's uncle arranged for him to leave Iraq and he duly left on the 20 ^th September 2008 and travelled to Turkey where he stayed for 15 days, thereafter travelling by truck and arriving in Ireland on the 17 ^th October 2008.

The Refugee Appeals Commissioner's report

4 4. For the purposes of his s. 13 report, the Refugee Appeals Commissioner accepted that the applicant was "a national of Iraq", although this was "withoutprejudice to the examination of whether or not the applicant's claimed fear of persecution in Iraq was well founded". The Commissioner had before him an "Original Iraqi Nationality Certificate of the Applicant", issued on 12 ^th June 2006, with translation thereof, which the Commissioner stated he was "unable to verify". Further, the Commissioner considered that a nexus "to the grounds for refugee status set out in section 2 of the Refugee Act, 1996 (as amended)" "may exist in the applicant's claim" "in light of the foregoing and of his claim being based upon a stated fear of persecution by individuals who allegedly intended to force him to undertake terrorist activity". The Commissioner's observations in this regard were "without prejudice to the credibility concerns" set out in his report.

5 5. Ultimately, the Commissioner recommended that the applicant be refused refugee status on the ground that his claim lacked credibility by reason of the following factors: the terrorists had not made a concerted effort to find the applicant at his place of employment; the applicant's claim of how the terrorists had located his home address was internally inconsistent; the fact that the applicant's mother had not found the approach from the terrorists suspicious on the first occasion they called to her; disbelief that the applicant could have afforded to pay $2000 towards the $5000 spent in aid of the applicant's departure from Iraq.

6 6. The applicant appealed the Commissioner's rejection of the claim to the Refugee Appeals Tribunal. The Tribunal's Decision, dated 17 ^th May 2010, affirmed the Commissioner's recommendation.

The challenge to the Tribunal Decision

7 7. The Decision of the second named respondent rejecting the application for refugee status is based on the lack of credibility of the applicant, expressed in the following terms

"The Tribunal was not generally satisfied as to the appellant's credibility in relation to the particular claim for asylum advanced by him. Some of his evidence just ran contrary to common sense and was implausible and on other occasions his evidence was contradictory"

8 8. The Tribunal Member cited eight examples of the applicant's evidence which led to the adverse credibility finding. These are addressed variously in the course of the judgment.

9 9. The applicant challenges the Decision primarily on the basis of the Tribunal Member's failure to assess the credibility of the applicant's claim in the context of pertinent country of origin information which was presented at the hearing. Furthermore, the Tribunal Member failed to make a finding as to whether the applicant was from Iraq and to have due regard to original documentation submitted by him, all of which was central to the applicant's claim for refugee status. In addition, it is contended that the errors attaching to the Tribunal Member's adverse credibility findings were compounded by the interpretation process ordained for the oral hearing of the applicant's appeal. It is submitted that the absence of proper interpretation services on the day of the hearing is of itself sufficient to warrant the quashing of the Tribunal member's decision. I propose firstly to deal with this latter issue.

The interpretation ground

10 10. Preliminarily, the respondents object to the applicant's arguments on the basis that the statement of grounds did not address the now claimed deficiencies in the interpretation assistance provided for the applicant, and objection was made to the applicant seeking to reformulate his statement of grounds to encompass this...