N.G. v Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 16 March 2017 |
| Neutral Citation | [2017] IEHC 373 |
| Docket Number | [2015 No. 730 JR] |
| Court | High Court |
| Date | 16 March 2017 |
[2017] IEHC 373
THE HIGH COURT
JUDICIAL REVIEW
Faherty J.
[2015 No. 730 JR]
Asylum, Immigration and Nationality – Claim for refugee status – Fear of persecution – Rejection on grounds of credibility – Unlawful assessment of credibility – Refugee Appeals Tribunal – Reg. 5 (1) (b) of the European Communities (Eligibility for Protection) Regulations 2006 – Absolute documentary proof
Facts: The applicant sought an order of certiorari for quashing the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicant should not be declared a refugee. The applicant contended that the manner in which the first named respondent assessed her credibility was unlawful. The applicant also alleged that there was a breach of reg. 5 (1) (b) of the 2006 Regulations, which put an obligation on the decision maker to assess 'the relevant statements and documentation presented by the protection applicant including information on whether he or she has been or maybe subject to persecution or serious harm'. The main contention of the applicant was that the first named respondent failed to assess the core claims of the applicant, which pertained to the inheritance of lands from her uncles and threat to her life from them. The applicant also argued that the first named respondent made an error by not assigning any probative value to the police report.
Ms. Justice Faherty quashed the decision of first named respondent and remitted the matter for de novo consideration before a different member of the first named respondent. The Court observed that the requirement of absolute documentary proof was not the test that was contemplated by reg. 5(1) of the 2006 Regulations and that the first named respondent did not mention the inheritance issue of the applicant's statement, in her analysis. The Court observed that the first named respondent's finding that the applicant never inherited the farm, was an invalid finding. The Court noted that the first named respondent failed to apply the test provided in reg. 5(3) and failed to give regard to the country of origin information to the effect that it was unrealistic to expect bill or utilities in the applicant's name.
This is a post leave hearing in which the applicant seeks an order of certiorari of the decision of Refugee Appeals Tribunal ('the Tribunal') dated 18th November, 2015 which affirmed the recommendation of the Refugee Applications Commissioner ('the Commissioner') not to declare her a refugee.
In her statement of opposition, the respondent objected to the within proceedings on the ground, inter alia, that the affidavit grounding the judicial review application was sworn by the applicant's solicitor in circumstances where only the applicant could aver to the facts and events set out in the affidavit. I am satisfied that the respondent's objection, although valid, has been rendered moot by virtue of the affidavit duly sworn by the applicant on 4th November, 2016.
The applicant's claim for refugee status arises out of persecution she says she suffered in relation to lands she inherited from her father. She alleges that consequent to her inheritance she was subjected to persecution by her uncles (her father's brothers) who wanted the land. According to the applicant, her father was killed in January 2013, possibly by his brothers. Her mother passed away in March, 2013. The applicant duly sold her land rights to a named individual (LB) in May, 2013. The applicant claims that she received death threats from her uncles in June, 2013 and they subsequently burned her house down, leaving her hospitalised for a week. The applicant made a complaint to the police. However, there were no arrests. Upon leaving hospital, the applicant resided with a friend. In July 2013, she was traced by her uncles, leading to more threats from them. Due to the risk to her from her uncles, her friend arranged for her to leave Malawi. She left on 30th August, 2013. An unsuccessful attempt to travel to this State via the Seychelles led to her detention in the Seychelles for five days. Certain medical documents which she had with her were retained by the authorities in the Seychelles. The applicant was then returned to South Africa. Shortly afterwards she travelled to this State via Abu Dhabi, arriving on 14th September, 2013. She applied for refugee status at Dublin Airport. Her application was subsequently rejected by the Commissioner. Her appeal to the Tribunal involved an oral hearing which took place on 7th October, 2015. The Tribunal's decision affirmed the Commissioner's recommendation. Her claim was rejected by the Tribunal on grounds of credibility.
The Tribunal identified the 'core facts' of the applicant's claim, as follows:
(i) Did the applicant inherit her late father's farm;
(ii) Did the applicant sell the farm to LB.;
(iii) Was the applicant subjected to threats on her life from her uncles;
(iv) Did the applicant's uncles burn her home in June 2013?
All of these matters were duly ruled on adversely to the applicant.
Having rejected the 'core material aspects' of the applicant's claim, the decision-maker duly found that there was no need to analyse whether the same provided a basis for a finding that the applicant's fear were well founded. Moreover, the decision-maker considered that there was no necessity to consider the other elements of the Convention definition of a refugee.
By order of Mac Eochaidh J. dated 21st December, 2015, leave was granted to challenge the decision.
Arising from the grounds upon which leave was granted, the issues which arise for determination in these proceedings are:
(1) Was the Tribunal decision unreasonable or irrational and in breach of Regulation 5(1) of the European Communities (Eligibility for Protection) Regulations 2006 ('the 2006 Regulations') because of what the applicant alleges was the compartmentalised and circular manner in which her credibility was rejected;
(2) Did the Tribunal act unlawfully in failing to refer to, or apply the mandatory test contained in Regulation 5 (3) of the 2006 Regulations to those parts of the applicant's claim which were not supported by documentary evidence, and in imposing an apparent absolute requirement for documentary proof;
(3) Did the Tribunal act in breach of the principle of audi alteram partem in failing to willingly engage with or afford any weight to the corroborative documentary evidence which the applicant had provided in relation to the current ownership of the farm at the centre of her claim;
(4) Did the Tribunal act unlawfully, and in breach of Regulation 5(1)(a) of the 2006 Regulations in failing to consider the credibility of the applicant's claim in the context of available country of origin information, and in particular the corroborative country of origin information which documented both the practice land grabbing from widows and police corruption.
(5) Did the Tribunal act unreasonably in rejecting the authenticity of the police report which the applicant provided on the basis that it only partly corroborated her claim.
The applicant's case is that the manner in which her credibility was assessed was unlawful. It is submitted that the structure of the decision, which comprises each individual negative credibility finding resting on all of the previous negative credibility findings, has led to an unfair and unlawful result. Same is not in accordance with Regulation 5(1) of the 2006 Regulations, in particular Regulation 5 (1) (b) which provides that the protection decision maker must assess 'the relevant statements and documentation presented by the protection applicant including information on whether he or she has been or maybe subject to persecution or serious harm'. Counsel submits that by the time the Tribunal Member comes to whether the applicant has been subjected to persecution, he has effectively already rejected the entire claim, by reason of the first credibility finding that she never inherited the farm, a finding which it is submitted is itself invalid. It is submitted that this is not a case where, as is permissible, there was a valid credibility finding which destroyed the credibility of the entire claim. The Tribunal Member simply found that if there were no inheritance documents available, the inheritance did not occur. This was used to reject all other parts of the claim. The Tribunal Member ignored the fact that the applicant had provided documents from the new owner which corroborated her story.
Counsel submits that in finding that the applicant did not inherit the farm, the Tribunal Member's entire emphasis was on the absence of documentation and on the fact that the Tribunal Member had sought documentation from her. There was no mention in the decision maker's analysis of the inheritance issue of the applicant's statement that everything was lost in the house fire.
The requirement for absolute documentary proof is not the test that is set out in Regulation 5(1) of the 2006 Regulations. Furthermore, the Tribunal Member did not apply the provisions of Regulation 5(3), as he should have. Rather, instead of so doing, he proceeded from the outset to determine the case on the absence of documentary evidence. This was in direct contradiction of what Regulation 5(3) requires. In this regard, counsel cites D.E. v. Refugee Appeals Tribunal [2013] IEHC 304.
Additionally, the Tribunal Member unlawfully used his finding that the applicant did not inherit the lands to reject her claim that she sold the lands to LB
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