R (as) [Afghanistan] v Refugee Appeals Tribunal & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Ryan
• Judgment Date: 22 October 2010
• Neutral Citation: [2010] IEHC 514
• Court: High Court
• Date: 22 October 2010

[2010] IEHC 514

THE HIGH COURT

[No. 1123 J.R./2008]

R (AS) [Afghanistan] v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

BETWEEN

A. S. R. [AFGHANISTAN]

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S16(10)

R (AM) v REFUGEE APPEALS TRIBUNAL & ORS UNREP MCGOVERN 25.4.2008 2008/54/11245 2008 IEHC 108

KRAMERANKO v REFUGEE APPEALS TRIBUNAL UNREP MCCARTHY 14.7.2009 (EX TEMPORE)

S (FK) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP DUNNE 30.10.2009 2009/51/12917 2009 IEHC 474

BITI v REFUGEE APPEALS TRIBUNAL (RYAN) & ORS UNREP FINLAY-GEOGHEGAN 24.1.2005 2005/4/827 2005 IEHC 13

B (SO) v REFUGEE APPEALS TRIBUNAL UNREP CHARLETON 29.1.2008 (EX TEMPORE)

E (M) v REFUGEE APPEALS TRIBUNAL & ORS UNREP BIRMINGHAM 27.6.2008 2008/22/4746 2008 IEHC 192

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

A (FA) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (ZAIDAN) UNREP BIRMINGHAM 24.6.2008 2008/1/17 2008 IEHC 220

MIN FOR JUSTICE v R (SM) 2008 2 IR 242 2007/41/8454 2007 IESC 54

HAY v O'GRADY 1992 1 IR 210 1992 ILRM 689 1992/2/502

IMMIGRATION LAW

Asylum

Decision - Delay - Accurate recollection of evidence - Prejudice - Assessment of credibility - Afghani national - Fear of persecution - Personal account - Country of origin information - Fair procedures - Whether inordinate delay between date of hearing and written decision - Whether decision hampered by delay - Whether delay rendered decision unsafe - Whether actual prejudice suffered - Whether breach of fair procedures and natural and constitutional justice - Whether applicant deprived of benefit of giving oral evidence - Whether error in assessment of credibility - Whether finding irrational or unreasonable - Whether young age taken into account - Whether court could substitute own findings of fact - R(AM) v Minister for Justice [2008] IEHC 108, (Unrep, McGovern J, 25/4/2008) and S(FK) v Refugee Appeals Tribunal [2009] IEHC 474, (Unrep, Dunne J, 30/10/2009) followed - Krameranko v O'Brien and Refugee Appeals Tribunal (Unrep, McCarthy J, 14/7/2009); Messaoudi v Refugee Appeals Tribunal [2004] IEHC 156, (Unrep, Finlay Geoghegan J, 29/7/2004); Biti v Refugee Appeals Tribunal [2005] IEHC 13, (Unrep, Finlay Geoghegan J, 24/1/2005); B(SO) v Refugee Appeals Tribunal (Unrep, Charleton J, 29/1/2008); E(M) v Refugee Appeals Tribunal [2008] IEHC 192, (Unrep, Birmingham J, 27/6/2008); Imafu v Minister for Justice, Equality and Law Reform [2005] IEHC 416, (Unrep, Peart J, 9/12/2005); A(FA) v Minister for Justice [2008] IEHC 220, (Unrep, Birmingham J, 24/6/2008); Minister for Justice, Equality and Law Reform v R(SM) [2007] IESC 54, [2008] 2 IR 242 and Hay v O'Grady [1992] 1 IR 210 considered - Refugee Act 1996 (No 17), s 16(10) - Leave refused (2008/1123JR - Ryan J - 22/10/2010) [2010] IEHC 514

R(AS) v Refugee Appeals Tribunal and Minister for Justice and Law Reform

1 JUDGMENT of Mr. Justice Ryan delivered the 22nd October 2010

2 1. This is an application for leave to bring judicial review proceedings in respect of a decision of the Refugee Appeals Tribunal dated the 1st September, 2008, whereby it affirmed the recommendation of the Refugee Applications Commissioner that the applicant should not be declared a refugee. Mr. Anthony Hanrahan B.L. appeared for the applicant and Ms. Sinead McGrath B.L. for the respondents.

Background.

3 2. The applicant, a national of Afghanistan, was born in 1989 in Kabul. He arrived in the Ireland on the 5th December, 2005, aged sixteen. His claim for asylum is premised on his contention that he fears persecution at the hands of the Afghan government on account of his family's connections with the Hizb-i-Islami political organisation, which is opposed to the government. He claims that his father and brother were killed by the government authorities and his mother and sister have had to move to Pakistan.

4 3. According to the applicant's version of events, his father was a commander in Hizb-i-lslami from 1985 onwards. The applicant himself was at no time a member of Hizb-i-lslami but, in 2005, he distributed anti-government political leaflets on the instructions of his father. On foot of this, the applicant was arrested by the Afghan secret police. He was beaten and mistreated while in custody. Under interrogation he revealed to the police that his father had given him the leaflets. After five days of detention the applicant's mother secured his release by bribing a guard. The guard brought the applicant out of the police station in the early morning under the pretence of going to pray at the mosque. He gave the applicant something to cover his face. From the mosque, the guard brought him by public bus and taxi to the applicant's aunt's house. The applicant then learned that his father and older brother had been arrested two days previously in connection with their activism in Hizb-i-lslami. They were later killed in prison and their bodies released to the applicant's mother. The applicant's family were aware that the police were looking for him and his uncle therefore organised his departure from Afghanistan. He left Afghanistan on the 3rd November, 2005 and travelled to Ireland via Pakistan.

5 4. The Refugee Applications Commissioner made a negative recommendation in respect of the applicant. The Commissioner found the applicant's account to be lacking in credibility in a number of respects. Moreover, the Commissioner stated that "if the applicant's claim to be a member of a Hizb-i-lslami family were deemed credible, it is considered, taking country of origin information into account… that the applicant as a non-member of Hizb-i-lslami himself, is in his own words, a low level worker who distributed some leaflets on the orders of his father, would not be targeted by the authorities."

6 5. The Refugee Appeals Tribunal rejected the applicant's appeal. The Tribunal Member made negative credibility findings against the applicant in relation to the following matters:-

7 · his limited knowledge of Hizb-i-lslami and their activities;

8 · his account of escaping from police custody;

9 · his claim to have distributed subversive anti-government leaflets in public places during daylight hours;

10 · the fact that no independent corroboration, such as international media reports, could be found to support the applicant's claim that his father and brother had been killed in prison.

11 Without prejudice to these findings, the Tribunal Member also drew the conclusion that in any event the applicant was unlikely to be of any interest to the authorities if returned to Afghanistan on account of the time that has elapsed since the applicant's alleged arrest, the fact that he was never a member of Hizb-i-Islami and the fact that he would not support violence.

The Application for Judicial Review.

12 6. The grounds upon which the applicant seeks leave to judicially review the Tribunal's decision are essentially two-fold. First, the applicant submits that the delay between the date of hearing and the Tribunal's decision was inordinate. Secondly, it is asserted that the Tribunal. Member erred in her assessment of credibility by relying on conjecture, focusing on peripheral issues, failing to take into account the applicant's young age and by acting irrationally in a number of respects. The issues of delay and credibility are inextricably linked in the present case according to the applicant. Credibility was a central feature of the Tribunal's decision and it would seem that an assessment of the applicant's oral testimony was one of the primary means by which credibility was gauged. At the RAT hearing, the applicant gave evidence orally and answered questions put to him. He gave details of his alleged past persecution, putting emphasis on certain matters, and clarifying issues which were raised. As in every oral hearing, this involved the Tribunal Member observing the demeanour and body language of the applicant as he gave his evidence.

13 7. The applicant's oral hearing before the Tribunal took place on the 3rd December, 2007 and the decision is dated the 1st September, 2008. The applicant argues that the passing of almost nine months renders the decision unsafe and in breach of fair procedures and natural and constitutional justice. Mr. Hanrahan, Counsel for the applicant, spoke of the importance afforded to viva voce evidence in our legal tradition and opened a number of cases which espoused the primacy of oral evidence. He made the case that after almost nine months the Tribunal Member could not possibly have recollected the applicant's testimony and demeanour with any accuracy and she can only have based her decision on her notes of the hearing and the documentation submitted to her. In the result, the applicant was essentially deprived of the benefit of giving oral evidence and his entitlement to an oral hearing under s. 16(10) of the Refugee Act 1996 was effectively worthless.

14 8. In reply, the respondents submit that no actual prejudice has been caused to the applicant by the delay; in order to succeed in an application for certiorari, there must be some disquiet as to the Tribunal Member's decision. The respondents rely on the authority of A.M.R. v. Minister for Justice (Unreported, High Court, 25th April, 2008) [2008] I.E.H.C. 108 where, in the context of a fifteen week delay, McGovern J. held as follows:-

"There was no doubt that decisions of this nature should be given as soon as possible and there is an obligation on the Chairperson of the Tribunal to ensure that its business is managed efficiently and disposed of as expeditiously as may be consistent with fairness and natural justice.

I do not believe that it would be desirable to set down a rigid rule which states...