P (A) [Albania] v Refugee Appeals Tribunal and Another
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Mr. Justice Barr |
| Judgment Date | 02 October 2014 |
| Neutral Citation | [2014] IEHC 493 |
| Date | 02 October 2014 |
[2014] IEHC 493
THE HIGH COURT
BETWEEN
AND
AND
MING v CANADA (MIN OF EMPLOYMENT & IMMIGRATION) 1990 2 FC 336
A (KE) v REFUGEE APPLICATIONS CMSR & MIN FOR JUSTICE UNREP HEDIGAN 25.11.2008 2008/1/79 2008 IEHC 366
G (C) v REVENUE CMRS (CRIMINAL ASSETS BUREAU) 2005 2 IR 472 2005/27/5522 2005 IEHC 121
REFUGEE ACT 1996 S11B(A)
REFUGEE ACT 1996 S11B(B)
REFUGEE ACT 1996 S11B(C)
REFUGEE ACT 1996 S20
REFUGEE ACT 1996 S20(1)
REFUGEE ACT 1996 S11B
N (A) v REFUGEE APPEALS TRIBUNAL & ORS UNREP BIRMINGHAM 10.6.2008 2008/45/9708 2008 IEHC 171
N (T) v MIN FOR JUSTICE & ORS 2007 4 IR 553 2007/44/9169 2007 IEHC 257
REFUGEE ACT 1996 S16(16)(E)
REFUGEE ACT 1996 S16(16)(D)
OLATUNJI v REFUGEE APPEALS TRIBUNAL (TAIT) & MIN FOR JUSTICE UNREP FINLAY GEOGHEGAN 7.4.2006 2006/46/990 2006 IEHC 113
IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 10.5.2005 2005/31/6357 2005 IEHC 150
N (L) v REFUGEE APPEALS TRIBUNAL (ZAIDAN) & MIN FOR JUSTICE UNREP O'NEILL 7.10.2005 2005/44/9179 2005 IEHC 345
P (R) v MIN FOR JUSTICE UNREP MCDERMOTT 14.3.2014 2014 IEHC 125
REFUGEE ACT 1996 S11
O (S) (A MINOR) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (O'GORMAN) UNREP EDWARDS 5.2.2010 2010/40/10075 2010 IEHC 151
A (R) [GEORGIA] v REFUGEE APPEALS TRIBUNAL (MCCABE) UNREP CLARK 20.7.2010 2010/1/163 2010 IEHC 487
Asylum - Appeal against the decision of the Refugee Appeals Tribunal – Interpreter - Different dialect - Ability to give a true representation of the applicant”s evidence - Ability to understand proceedings and be understood - Fair procedures - Ming v. Canada [1990] 2 FC 336 considered - KEA v. Refugee Applications Commissioner & Anor [2008] IEHC 366 principles applied - Identity documents
Facts The applicant is a national of Albania. His father was involved in a road traffic accident whereby a young boy was knocked down and killed. The family of the young boy allegedly sought revenge for the death of the boy. The applicant believed the family would apply “an eye for an eye” rule and kill him in retaliation. He fled the country and arrived in Ireland in November 2007, immediately applying for asylum upon his arrival. His initial asylum claim and his appeal to the Refugee Appeals Tribunal (RAT) were both unsuccessful. Nevertheless, he sought to challenge the decision of the RAT. The interpreter used in the proceedings was of a different dialect to that of the applicant. He sought an adjournment so as to procure the services of an interpreter who spoke the same dialect of Albanian that he did. The RAT was under a duty to act judicially in determining whether or not to grant an adjournment to the applicant.
The applicant produced an un-translated copy of his birth certificate at the hearing. Invoking s. 11B (a) of the Refugee Act 1996 the Tribunal concluded the birth certificate did not qualify as an identity document. The applicant argued s. 20(1) of the Act defines “identity documents” as including birth certificates. He argued there was no reason why the term “identity documents” in s. 11B should be given a different interpretation to its meaning in section 20(1). The applicant argued the Tribunal had failed to consider the relevant evidence in the form of the birth certificate. He submitted that in finding that he had not provided a reasonable explanation for the absence of identity documents and in relying on this finding to reject his credibility, the Tribunal had made an error of law and of fact.
Held The judge was satisfied that the RAT erred in not allowing the applicant to have the adjournment requested so as to procure the services of an interpreter who spoke the same dialect of Albanian as he did. The judge ruled this was necessary in order to enable the applicant to understand what was going on and to make himself properly understood. He said it was a fundamental element in the right to fair procedures. The judge said the RAT erred in concluding that the applicant had said that his father would not tell him the name of the other family in case the applicant would go and try to carry out a revenge killing against them. The judge declared this was a significant error of fact and said it was an important element in the finding by the Tribunal that the applicant was not credible. He therefore granted certiorari of the decision of the RAT dated 14th May 2010. In relation to the applicant”s birth certificate the judge said the Tribunal was entitled to reach the decision that it did. In interview the applicant said he would get them sent by post. It was only at hearing did he produce an un-translated copy of his birth certificate. In the circumstances, comment of the RAT in relation to the late production of the document was not unreasonable.
-Decision of the RAT dated 14th May 2010 quashed. Matter remitted to the RAT for reconsideration by a different Tribunal Member.
1. The applicant is a national of Albania. In March 2007, the applicant's father was involved in a road traffic accident in Albania. The accident involved a young boy, who was crossing the road. He died as a result of being hit by the car. The applicant states that this event gave rise to a blood feud between the boy's family and the applicant's family. The applicant feared that the boy's family would try to kill him in revenge for the death of the boy. The applicant believed that the family would apply the "eye for an eye" or "blood for blood" rule and on this basis would seek to kill the applicant. The applicant maintained that the family threatened that "we are going to kill your son", meaning him.
2. The applicant arrived in Ireland on 15 th November, 2007. He started his trip from the Vlore City in Albania. He got into a large truck. The truck went by ferry to another country. The applicant thinks that it went to Italy and then into France. In France, he got out of the truck for two hours. He then switched to another truck and was taken by ferry to Ireland. He applied for asylum immediately upon his arrival in the State.
3. The applicant's asylum claim was unsuccessful at first instance before the Refugee Applications Commissioner. He appealed to the Refugee Appeals Tribunal (the RAT) but his appeal was also unsuccessful. The applicant seeks to challenge the decision of the RAT in these proceedings. The applicant has a number of complaints about the proceedings before the RAT and also in relation to the content of its decision.
4. In an affidavit sworn on 29 th June, 2010, Ms. Siuna Bartels, the applicant's solicitor has set out in detail difficulties encountered by the applicant in presenting his case to the RAT. Her account has not been challenged by any replying affidavit on behalf of the respondent. As this is a central part of the applicant's claim against the RAT, it is necessary to set out Ms. Bartels' account in some detail, as follows:-
2 "5. I attended the hearing of the applicant's appeal on 6 th May, 2010. At the outset of the hearing, the Tribunal Member inquired whether the applicant had a chance to speak to the interpreter. It was indicated to the Tribunal Member that they had a small chat. The Tribunal Member then asked the applicant whether he was happy with the interpreter and whether dialect and accent affected understanding between them. The applicant indicated to the interpreter that he could understand her but not that well and this was stated to the Tribunal. It was explained to the Tribunal by the interpreter that she and the applicant were from different parts of Albania and that they each spoke a different dialect of the Albanian language and that this presented a problem. The interpreter confirmed to the Tribunal that some words used in the respective dialects were different. On that basis, counsel applied for an adjournment stating that any misunderstanding in interpretation could seriously prejudice the applicant. The presenting officer tried to suggest that there was a difference of accents only. The Tribunal Member stated that the hearing would proceed and that no good reason had been shown to 'postpone' the hearing.
6. Counsel and I had serious concerns that there could be a serious problem in interpreting the applicant's evidence and counsel sought a short adjournment for five minutes so that a discussion could take place among the applicant, the interpreter, counsel and me. The Tribunal Member granted this short five minute adjournment. Accordingly, the applicant, the interpreter, counsel and I had a discussion outside the hearing room. The interpreter confirmed that there was a difference of dialects with some words being different. The applicant expressed his concern that he could not fully understand the interpreter. Accordingly, when the hearing resumed, counsel renewed the application for an adjournment. The interpreter told the Tribunal that she could understand the applicant's dialect. The interpreter was asked whether she was satisfied she could give a true interpretation and she replied 'not really' and that she might not be able to give a true interpretation of the applicant's evidence.
7. The Tribunal Member stated that she was not impressed with the application. The Tribunal Member stated that this was 'a very simple story' and that the applicant speaks some English. Counsel stated to the Tribunal that the applicant does not have a great grasp of English and that his standard of English was rudimentary at best. The Tribunal asked counsel how he took instructions before the hearing. Counsel indicated to the Tribunal that he had difficulty...
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