R (H)[Belarus] v Refugee Appeals Tribunal (McCabe) & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 15 April 2011
• Neutral Citation: [2011] IEHC 151
• Docket Number: [No. 767 J.R./2008]
• Court: High Court
• Date: 15 April 2011

R (H)[Belarus] v Refugee Appeals Tribunal (McCabe) & Min for Justice

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

H.R. [Belarus]

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL (BERNARD McCABE) AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

[2011] IEHC 151

[No. 767 J.R./2008]

THE HIGH COURT

IMMIGRATION

Asylum

Adverse credibility finding - Demeanour of applicant - Error of fact - Whether error of fact undermined decision - Whether reliance on demeanour of applicant unsound -Whether alternative finding of remoteness rendered decision safe - The State (Keegan) v Stardust Compensation Tribunal [1986] IR 642 applied; Ryanair Ltd v Flynn [2000] 3 IR 240; AMT v Refugee Appeals Tribunal [2004] IEHC 219, [2004] 2 IR 607; Aer Rianta cpt v Commissioner for Aviation Regulation, (Unrep, O'Sullivan J, 16/1/2003) approved - Refugee Act 1996 (No 17) ss 11, 13 and 17 - Certiorari granted (2008/767JR - Cooke J - 15/4/2011) [2011] IEHC 151

R(H) v Refugee Appeals Tribunal

Facts The applicant was a native of Belarus and had originally arrived in the State on a student visa. When her student visa expired the applicant applied for asylum which was refused. The Tribunal had found that there was a lack of credibility in the applicant's claim. Leave to bring judicial review proceedings had already been granted by the court as to whether the decision of the Tribunal was based on a material error of fact that undermined its validity in law. It was contended that there had been findings of fact by the Tribunal relating to the applicant's claim which were erroneous and had undermined the decision of the Tribunal. Of particular concern was an alleged incorrect reference to a section 11 interview under the Refugee Act, 1996 (instead of a section 8) by the Tribunal and a subsequent conclusion by the Tribunal that the applicant's evidence was therefore neither plausible nor credible.

Held by Cooke J in granting certiorari and quashing the decision of the Tribunal. Before a decision maker in the asylum process rejected of a claim on the basis of a lack of credibility based mainly on the personal appearance and demeanour of the claimant, the decision-maker should be fully confident that the basis of the claim and all relevant facts have been fully understood and that there was no possibility that the decision-maker and claimant have been at cross purposes on any material point. Because of the importance attached by the Tribunal to what was believed to have been the withholding of a significant element in the claim at the s. 11 interview and having regard to the importance of the interview in question as the source of information going to credibility, this error was clearly material to the basis upon which the conclusion as to the credibility of the claim was reached. The error which had occurred was material to the conclusion reached and it goes to the soundness of the basis upon which the review jurisdiction of the Tribunal had been exercised.

Reporter: R.F.

REFUGEE ACT 1996 S8

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 13

RYANAIR v FLYNN 2000 3 IR 240

REFUGEE ACT 1996 S17(1)

TRAORE v REFUGEE APPEALS TRIBUNAL 2004 2 IR 607

AER RIANTA CPT v COMMISSIONER FOR AVIATION REGULATION UNREP O'SULLIVAN 16.01.2003 2003/1/141

Mr. Justice Cooke

1 At the conclusion of the hearing of this application for judicial review on the 7^th April, 2011, the Court indicated that it considered that the first of the two grounds for which leave had been granted had been made out and that the decision of the first named respondent of the 7^th May, 2008, (the "Contested Decision",) would be quashed. This is the Court's statement of its reasons for reaching that conclusion.

2 The grounds for which leave was granted in the order of Ryan J. of 8^th October, 2010, were:-

3 (a) That the decision of the Tribunal was based on a material error of fact that undermined its validity in law; and

4 (b) That the Tribunal erred in law in failing to consider the applicant's case by reference to relevant country of origin material that was submitted on her behalf.

5 3. The applicant is a national of Belarus who arrived in the State in June 2004, as a student. She entered lawfully with a visa for that purpose. When it expired a renewal was refused but she did not leave and in May 2006, applied for asylum. Shortly after that application was made she gave birth to daughter in the State on the 7^th June, 2006.

6 4. On the 29^th May, 2006, the applicant, accompanied by her solicitor attended at the Office of the Refugee Applications Commissioner and completed a form of application for refugee status in accordance with s. 8 of the Refugee Act 1996. On the 30^th May, 2006, she completed the ASY1 Form. The interview under s. 11 of the Act took place on the 3^rd August, 2006 and on the 25^th of that month a report issued under s. 13 of the Act, in which the authorised officers recommended that she should not be declared to be a refugee. This was appealed by a notice dated 15^th September, 2006 and the oral hearing before the Tribunal took place on 24^th July, 2007. The decision of the first named respondent which is now the subject of this judicial review application did not issue until ten months later on the 28^th May, 2008.

7 5. Although, as mentioned below, the analysis of the claim upon which the Tribunal member bases the decision to affirm the negative recommendation of the s. 13. report, contains an ancillary or alternative finding based on "remoteness", it is fair to say that the substantive basis for the conclusion and the determining factor in the appeal, is the Tribunal member's finding of lack of credibility in the claim made by the applicant. This is based both upon the Tribunal member's observation of the applicant's demeanour during the oral hearing when responding to questions and upon a series of specific points identified by him as being implausible. These are:-

8 (1) Noting that the applicant came to Ireland in June 2004 and did not claim asylum until May 2006, he considers that she had not "provided a reasonable explanation to substantiate her claim that this State is the first safe country in which she has arrived since departing her country of origin." He says that she provided "vague and non specific evidence, but it is clear that she has been to Poland, Germany, France and England".

9 (2) In her claim the applicant had given evidence of one important incident when she was re-entering Belarus from Poland bringing 2000 leaflets on behalf of an opposition political party in which she said her brother was active. She says that she was arrested, searched and detained for several hours and that the leaflets were confiscated. The Tribunal member attaches particular significance to the fact that in the oral hearing she claimed to have been stripped-searched on this occasion, something she had not mentioned during the s. 11 interview. He found the applicant's evidence as to why this particular fact had not been mentioned at any earlier stage being neither plausible not credible and he observes her demeanour in giving her explanation for this she was "vague, non-specific and lacking in the type of detail one would expect from a person who had been subjected to the treatment she alleges" This he finds undermined her credibility.

10 (3) He then refers to her handing in a envelope at the hearing which she said had been delivered to her in the post empty and which she said showed that post sent to her from Belarus was being tampered with by the authorities. Again the Tribunal member says: "Having heard this portion of the evidence and observed her demeanour I did not find it plausible or credible and found the evidence to have an air of unreality to it. I find that this further undermines the applicant's credibility."

11 6. It is worth pausing to consider the significance of these three particular findings before addressing the fourth matter which is the subject of the alleged mistake of fact in the first of the two leave grounds.

12 7. There is not doubt, of course, but that the Tribunal member is perfectly entitled to base a finding as to lack of credibility and plausibility upon the manner in which an asylum seeker gives evidence and on his or her demeanour when answering questions in relation to the details of facts and events which form the basis of the claim. Indeed, in many cases where such facts and events are incapable of any independent corroboration, the personal credibility of claimant may be crucial. At the same time, however, the decision-maker must be careful not to misplace reliance upon demeanour and risk construing as a deliberate lack of candour a demeanour which may be the result of nervousness, of the stress of the occasion and even of the embarrassment of being an asylum seeker. An apparent hesitation and uncertainty may well be attributable to difficulties of language and comprehension. In the judgment of the Court, before a decision maker in the asylum process bases a rejection of a claim upon lack of credibility based mainly on the personal appearance and demeanour of the claimant, the decision-maker ought to be fully confident that the basis of the claim and all relevant facts and circumstances recounted have been fully and correctly understood and that there is no possibility that the decision-maker and claimant have been at cross purposes on any material point.

13 8. Although the first three findings identified above are the not the subject of the alleged factual error which forms the basis of the first ground, it is appropriate to make some comment upon them in the context of this decision because once it is established that there has been an error of fact on the face of a decision of this kind, the judgment as to whether certiorari should issue depends upon the materiality of the mistaken...