A. P. v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 20 September 2013
• Neutral Citation: [2013] IEHC 448
• Date: 20 September 2013

[2013] IEHC 448

THE HIGH COURT

[NO. 901 JR/2012]

P (A) v Refugee Appeals Tribunal & Min for Justice

No Redaction Needed

JUDICIAL REVIEW

BETWEEN

A. P.

APPLICANT

-AND-

THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S16(8)

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

K (K) v REFUGEE APPEALS TRIBUNAL (HURLEY) UNREP MCGOVERN 22.5.2007 2007/30/6192 2007 IEHC 148

REFUGEE ACT 1996 S11

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

A (S) [ALGERIA] v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HOGAN 24.1.2012 2012/1/96 2012 IEHC 78

A (M) [NIGERIA] v MIN FOR JUSTICE & ORS UNREP RYAN 12.11.2010 2010 IEHC 519

E (O) v REFUGEE APPEALS TRIBUNAL & ORS UNREP SMYTH 30.3.2011 2011 IEHC 149

IMMIGRATION

Asylum

Judicial review - Telescoped hearing - Certiorari - Challenge to negative recommendation of tribunal - Iran - Sexual orientation - Credibility - Consideration of report - Failure to indicate essential element of claim being re-opened - Consideration of witness evidence - Consideration of fragile mental health - De novo hearing - Irrationality - Conjecture and speculation - Whether correct approach to credibility assessment - Whether entitlement to be informed that essential element of claim to be re-opened - Whether failure to properly consider report - Whether error of law in appreciation of sexual orientation - Whether fragile mental health taken into consideration - IR v Minister for Justice [2009] IEHC 353, (Unrep, Cooke J, 24/7/2009); KK v Refugee Appeals Tribunal [2007] IEHC 148, (Unrep, McGovern J, 22/5/2007); State (Keegan) v Stardust Victims' Compensation Tribunal, [1986] IR 642; A(S) (Algeria) v Minister for Justice, Equality and Law Reform [2012] IEHC 78, (Unrep, Hogan J, 24/1/2012); A(M) v Refugee Appeals Tribunal [2010] IEHC 519, (Unrep, Ryan J, 12/11/2010) and E v Refugee Appeal Tribunal [2011] IEHC 149, (Unrep, Smyth J, 30/3/2011) considered - Refugee Act 1996 (No 17), s 16(8) - Decision quashed; matter remitted to tribunal with direction that copy of judgment be placed on file at election of applicant (2012/901JR - MacEochaidh J - 20/9/2013) [2013] IEHC 448

P v Refugee Appeals Tribunal

Facts: The applicant was a native of Iran who arrived in Ireland in June 2007 and subsequently claimed asylum. It was his contention that he would be persecuted if returned to his native country because he was a homosexual. The applicant stated that immediately prior to him leaving Iran, he had been in his neighbour”s home where he was blackmailed by that neighbour into having. It was further alleged that whilst the applicant was being raped, his neighbour”s father – a colonel in the Iranian police – returned home and witnessed the act. The neighbour”s father was then said to have assaulted the applicant and taken a picture of the incident, which he then showed to the applicant”s mother. The applicant said he left the country soon after. The asylum application was rejected by the Refugee Applications Commissioner and the Refugee Appeals Tribunal (‘the Tribunal’) as a result of negative credibility findings and a determination by the Tribunal that it was not satisfied that the applicant was homosexual.

The applicant subsequently brought judicial review proceedings challenging the decision of the Tribunal. It was argued that the Tribunal had not properly assessed the applicant”s contention that he was a homosexual man because insufficient attention was given to his evidence in that regard. Instead, the Tribunal was said to have reached their conclusion on the applicant”s sexual orientation on the basis of negative credibility findings that had been reached without proper consideration. In response, it was said that the Tribunal had given sufficient attention to the applicant”s contention that he was homosexual, and that this was evidenced in the Tribunal”s written decision, which outlined six reasons why it was not satisfied that the applicant had established this claim. Further, these reasons were said to be based on facts and evidence which entitled the Tribunal to reach the conclusion that it did.

Held by Mac Eochaidh J that the manner in which the Tribunal made the determination in relation to the applicant”s assertion of sexual orientation was erroneous. The Tribunal had determined that the applicant had contradicted himself when he claimed that he had unwillingly engaged in a sexual act with his neighbour because he had also said that he previously found his neighbour attractive, and this negative credibility finding was then relied upon when the substantive determination was made. However, it was held by Mac Eochaidh J that he did not believe that the applicant had contradicted himself as both of the applicant”s statements (that he had unwillingly had sex with his neighbour and that he had previously found his neighbour attractive) were potentially compatible.

The Tribunal had also determined that the neighbour”s father”s decision to show the applicant”s mother a picture of the incident was incompatible in light of the appellant's continued insistence that he who had been raped. Once again, this negative credibility finding had also been relied upon by the Tribunal when justifying the overall decision. It was held that the Court was not satisfied that this finding was determinative of the applicant”s credibility in relation to his claim that he was homosexual, especially in light of the fact that the Tribunal had not seen the picture in question and did not know what exactly it revealed. It was further held that the Tribunal had given insufficient weight to the evidence of a witness called on the applicant”s behalf because of a mischaracterisation of the evidence.

For these reasons, it was held that the Tribunal had erred in its assessment of the credibility of the applicant which led to the conclusion that he was not a homosexual man. An order of certiorari was, therefore, granted quashing the decision of the Tribunal. The matter was remitted for fresh consideration by the Tribunal.

1 The applicant in this 'telescoped' hearing is an Iranian national who seeks, inter alia, certiorari of a decision of the Refugee Appeals Tribunal (the "Tribunal") dated 30 ^th August 2012 refusing him refugee status. On 31 ^st July 2013, I indicated to both parties that I was quashing the decision of the tribunal, remitting the matter for reconsideration and that I would give the reasons for my decision at a later date, this I now so do.

Background:

2 The applicant was born on the 14 ^th August 1977 in Iran and is a native Farsi speaker. He arrived in the State on 10 ^th June 2007 and thereafter applied for asylum on the 15 ^th June 2007. The applicant presented as a homosexual man and claimed to have a well founded fear of persecution on the basis of his membership of this social group in Iran. The applicant claims that he fled Iran following an incident which occurred at his neighbour's apartment. The applicant claims that on visiting the apartment, his neighbour invited him to watch a gay pornographic DVD and attempted to force him to have sex with him. The applicant states that he initially refused to comply because the neighbour's father was a colonel in the Iranian police. However, the neighbour blackmailed the applicant into engaging in the act by threatening to tell his father that the applicant had supplied him with the DVD. The applicant alleges that the neighbour's father appeared and attacked him in the midst of the rape. In a letter written by the applicant's mother and submitted to the Tribunal it is alleged that the neighbour's father took a picture or video of the incident on his phone. The letter also states that the neighbour's father showed these pictures to the applicant's mother. The applicant claims that he fled to his aunt's house following the incident and was thereafter smuggled out of Iran concealed in his uncle's friend's car and later a truck.

3 He received a negative recommendation at first instance from the Office of the Refugee Applications Commissioner (ORAC) on 24 ^th October 2007. That recommendation was subsequently appealed to the Tribunal which, following a series of adjournments due to translation difficulties and the involuntary hospitalisation of the applicant for a period of two months, gave its decision and upheld the recommendation of ORAC on 12 ^th July 2011. The applicant then launched proceedings challenging the decision of the Tribunal and leave to apply for judicial review was granted by Cross J. on 22 ^nd February 2012. Those proceedings were thereafter compromised and updated legal submissions and medical reports were compiled and submitted by the applicant. A re-hearing of the applicant's appeal was conducted and a fresh decision upholding the recommendation of ORAC issued and was notified to the applicant on 9 ^th October 2012. It is the substance of that Tribunal decision which the applicant impugns in these proceedings.

Submissions:

4 Mr. Dignam S.C. for the applicant levies a series of complaints against the decision of the Tribunal Member in this case. In particular, counsel takes issue with: i) the manner in which the Tribunal concluded that the applicant was not a homosexual from Iran; ii) its failure to comply with s. 16 (8) Refugee Act 1996 with regard to furnishing a report to the applicant; iii) the selective use of the report in determining a core element of the applicant's claim; iv) the failure to indicate to the applicant that a fundamental aspect of his claim (as regards his homosexuality) was being re-opened and the failure to provide him with an opportunity to comment thereon; v) the manner in which the evidence of a witness was treated and the failure to...