M.A. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 31 July 2015
• Neutral Citation: [2015] IEHC 528
• Court: High Court
• Docket Number: [2011 No. 1150 JR]
• Date: 31 July 2015

BETWEEN

M. A.

APPLICANT

AND

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

RESPONDENTS

[2015] IEHC 528

Mac Eochaidh J.

[2011 No. 1150 JR]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Appeal against the decision of the Refugee Appeals Tribunal – The Refugee Act, 1996 – Fear of persecution – Country of origin information – Paper only appeal – Whether evidence of applicant credible – Fair procedures

Facts: The applicant sought an order of certiorari against the decision of the first named respondent affirming the decision of the Refugee Applications Commissioner that the applicant should not be declared a refugee. The applicant contended that he had a fear of being persecuted by the brother of his ex-wife who was a gangster. The applicant contended that the first named respondent vitiated fair procedures as he was denied the opportunity of being heard on a paper-only appeal wherein the first named respondent made fresh adverse credibility findings against him.

Mr Justice Mac Eochaidh J. refused to grant an order of certiorari to the applicant. The Court held that there was no obligation on the first named respondent to afford an opportunity to the applicant to render explanation for any contradiction or adverse suggestion in relation to the oral submissions made by the applicant during the application process before the first named respondent while the first named respondent was going to make negative credibility findings. The Court observed that the function of the first named respondent at that time was not more than warning the witness that a negative credibility finding was imminent. The Court found that the applicant had been given reasonable opportunities to present and address relevant issues during the appeal before the first named respondent. The Court held that the first named respondent was not obligated to consider country of origin information when the evidence before it did not support the case of the applicant and was not worthy of being accepted.

JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 31st day of July, 2015

Introduction:

1 This is a telescoped hearing seeking certiorari of the decision of the Refugee Appeals Tribunal, dated 9th October, 2011, to affirm the decision of the Refugee Applications Commissioner that the applicant not be declared a refugee.

2 In the submissions on behalf of the applicant, it is noted that the reliefs sought at paras. 2-6, which raise incompatibility issues between the Refugee Act 1996 and Council Directive 2005/85/EC, the Irish Constitution, the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights, are no longer being pursued in light of the decisions in H.I.D. & B.A. v. Minister for Justice [ 2013 I.E.H.C. 146], S.U.N. (South Africa) v. Refugee Applications Commissioner [ 2012 I.E.H.C. 338], T.D. -v- Refugee Appeals Tribunal [ 2010 I.E.H.C. 125] and, Efe v. Minister for Justice [ 2011 I.E.H.C. 214].

Background:

3 The applicant is a national of Pakistan who came to the State in October 2007 and applied for asylum in June 2011. He claimed asylum on the ground that he feared his former brother-in-law, who was a gangster and had spent considerable time in prison, in circumstances where the applicant had entered into an arranged marriage with the man's sister and subsequently divorced her after six months.

4 The applicant relied on his relationship with his ex-wife's family to ground his fear of persecution, stating, ‘I left my wife. After that my relationship with her family became worse and they are determined to kill me.’ He claimed that either two men, or his brother-in-law accompanied by two men, came to his mother's house and said to her that the applicant would not be spared.

5 The applicant claimed that he reported his fear to the police in Pakistan, but gave varying accounts of the authority's failure to help him. In the ASY1 form it was submitted that the police failed to act as it was a ‘family problem’ and, further, that the applicant was of the view that the police might have acted if he had taken steps to bribe them. It was claimed in the applicant's refugee status questionnaire that the police failed to act by reason of the brother-in-law's status as an ‘influential person.’ Finally, in his s. 11 interview he said that the police demanded a bribe in return for their help and it was on that basis that the applicant ‘gave up on the police.’

6 The applicant also submitted varying explanations accounting for his failure to apply for asylum prior to 23rd June, 2011, by which time he had been in the State for almost four years. In his ASY1 form, it was stated that:-

‘- he did not apply for asylum in England because he felt that his life would not be in danger any longer at that time.

- however, he as been in fear for his life since then as [his brother-in-law] is still looking for him – he fears he will be killed should he return (sic)

- he has not applied for asylum before this date because he was afraid he would be deported as he had heard different stories about others who had applied

- he is applying now because friends of his have advised him that he would not be deported if he applied now.’

7 During the course of his s. 11 interview the applicant submitted the following statement in response to the question: ‘Why did you not apply for asylum when you went to the UK?’:-

‘Firstly, I had no knowledge of asylum. Secondly, I had not told my mother that I left the country. More over, I was hoping that things would improve and I would return.’

When asked why he did not seek asylum upon his arrival in the State in 2007, the applicant replied:-

‘I was waiting for things to get better. The sort of person my brother in law is – he is the type who could get killed. If that happened I could go back.’

When asked what prompted him to apply for asylum in 2011, the applicant replied:-

‘I won't say that somebody pushed me into it. I wanted to go back to see my Mum and did not want to apply. But I eventually decided I should apply.’

The decision of the Refugee Applications Commissioner:

8 The Commissioner found that the applicant had not established a well-founded fear of persecution as required by s. 2 of the Refugee Act 1996. In particular, it was found that there was no Convention nexus on the basis that the applicant's claim would be more appropriately regarded as a criminal matter and does not fall within the remit of the Convention grounds.

9 The Commissioner made a number of adverse credibility findings in relation to the applicant's failure to seek asylum while in the U.K., his return from there to Pakistan, and the delay in claiming asylum when he first arrived in this State. The Commissioner further found that state protection and internal relocation were available options for the applicant. Finally, as the applicant had, without reasonable cause, failed to make his asylum application as soon as reasonably practicable after arriving in the State, he was not entitled to an oral appeal pursuant to s. 13(6)(c) of the Refugee Act 1996.

10 An appeal was submitted against the decision of the Commissioner wherein it was submitted that the applicant's claim fell within the Convention ground of membership of a particular social group. It was further submitted that the application of s. 13 of the 1996 Act is in breach of the Procedures Directives which mandates an effective remedy against a decision taken by the first instance decision maker.

11 It was submitted that the Commissioner had failed to address the core of the applicant's claim by focussing on the applicant's extended presence in the U.K., his brief return to Pakistan, and his delay in seeking asylum in this State, instead of carrying out an assessment of whether or not a real risk of persecution faces the applicant if returned to Pakistan.

12 It was submitted that any separate adverse credibility finding by the Appeals Tribunal would violate due process in circumstances where the applicant was not afforded an oral hearing and was not afforded a reasonable opportunity to offer explanations for any purported discrepancy.

13 Finally, it was submitted that the Commissioner had not pointed to any specific contradictions in the applicant's account which he had not reasonably accounted for, and that internal relocation was not a viable alternative and would not afford the applicant peace of mind in Pakistan.

The decision of the Refugee Appeals Tribunal:

14 The decision of the R.A.T. affirmed the decision of the O.R.A.C. that the applicant be refused a grant of refugee status.

15 Counsel for the applicant submits that in doing so the R.A.T. made a number of completely new credibility findings. In respect of that aspect of the R.A.T. decision counsel for the applicant submits that:-...