R(R) v Refugee Appeals Tribunal, Minister for Justice, Equality & Law Reform, Attorney General and Ireland and Human Rights Commission (Notice Party)

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 28 November 2008
• Neutral Citation: [2008] IEHC 406
• Docket Number: [No. 643 J.R./2006]
• Court: High Court
• Date: 28 November 2008

[2008] IEHC 406

THE HIGH COURT

[No. 643 J.R./2006]

R (R) v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

BETWEEN

R.R.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

REFUGEE ACT 1996 S16(16)

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S2

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202 1986/6/861

N (BJ) v MIN FOR JUSTICE & ORS UNREP MCCARTHY 18.1.2008 2008 IEHC 8

K (M) v REFUGEE APPEALS TRIBUNAL & ANOR UNREP HIGH MCCARTHY 22.8.2008 (EX TEMPORE)

MWIZA v REFUGEE APPEALS TRIBUNAL & ANOR UNREP HIGH 22.10.2008 (EX TEMPORE)

KONGUE v REFUGEE APPEALS TRIBUNAL & ORS UNREP HIGH 29.10.2008 (EX TEMPORE)

BUCINI v REFUGEE APPEALS TRIBUNAL & ORS UNREP HIGH (EX TEMPORE)

T (G) v MIN FOR JUSTICE UNREP PEART 27.7.2007 2007 IEHC 287

X v REFUGEE APPEALS TRIBUNAL & ORS UNREP HERBERT 11.12.2007 2007/60/13029 2007 IEHC 422

SANGO v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (MCHUGH) UNREP PEART 24.11.2005 2005/53/11227 2005 IEHC 395

IMMIGRATION

Asylum

Judicial review - Credibility - Adverse findings - Misunderstanding by respondent of applicant's account - One finding of lack of credibility thereby undermined - Appropriate test - Anxious scrutiny - Whether improper finding of adverse credibility severable - Whether finding of lack of credibility collateral to decision - O'Keeffe v An Bord Pleanala [1993] 1 IR 39, State (Keegan) v Stardust Compensation Tribunal [1986] IR 642, BJN v Minister for Justice [2008] IEHC 8 (Unrep, McCarthy J, 18/1/2008), Mujiberehman Kamil v Refugee Appeals Tribunal (Unrep, McCarthy J, 22/8/2008), Mwiza v Refugee Appeals Tribunal (Unrep, McCarthy J, 22/10/2008), Kongue v Refugee Appeals Tribunal (Unrep, McCarthy J, 29/10/2008) GT v Refugee Appeals Tribunal [2007] IEHC 297 (Unrep, Peart J, 27/7/2007) and Sango v Refugee Appeals Tribunal [2005] IEHC 395 (Unrep, Peart J, 24/11/2005) applied; X v Refugee Appeals Tribunal [2007] IEHC 422 (Unrep, Herbert J, 11/12/2007) distinguished - Certiorari granted, matter remitted to respondent (2006/643JR - McCarthy J - 28/11/2008) [2008] IEHC 406

R(R) v Refugee Appeals Tribunal

Facts: The Moroccan applicant sought to judicially review a decision of the respondent Tribunal to refuse him refugee status and alleged inter alia that the Tribunal had erred in law in making adverse credibility findings without having regard to documents submitted and making findings on matters not put to the applicant. A significant number of documents were exhibited in the proceedings. The applicant claimed that he had been distributing anti-monarchist leaflets at a University and alleged that the findings of the Tribunal as to his political views were in error.

Held by McCarthy J. that there had been a breach of fair procedures and constitutional justice to make a finding that was unsupported. The tribunal had clearly misunderstood or misstated the evidence and had made a fundamental error on the single most significant matter on which a want of credibility was founded. The decision would be quashed and the matter remitted to the Tribunal.

Reporter: E.F.

JUDGMENT of

Mr. Justice McCarthy

1 delivered on the 28th day of November, 2008.

2 1. By an order of deValera J. of the 1^st November, 2007 the applicant was afforded leave to apply for an order of certiorari quashing the decision of the first named respondent ("the Tribunal") of 26^th April, 2006, affirming the recommendation of the Refugee Applications Commissioner against the grant to the applicant of a declaration that he is a refugee, with an associated order of mandamus compelling the tribunal, on re hearing, to have or cause the applicant's application to be heard by a member other than Mr. McHugh whose recommendation is impugned in these proceedings. That leave was granted on the following grounds:-

3 (1) That the tribunal member erred in law in making adverse credibility findings without having any or any sufficient regard to a number of documents submitted in support of the applicant's application, including a medical report, country of origin information and explanations furnished for perceived discrepancies.

4 (2) That the tribunal erred in law in making adverse credibility findings on matters which were never put to the applicant, including matters relating to his travel arrangements.

5 (3) That the tribunal erred in law and actedultra vires in failing to consider and assess whether the applicant had a well-founded fear of persecution for a Convention reason and whether there was a real chance or possibility of persecution for a convention reason or reasons, if the applicant was refouled to Morocco.

6 The original Statement of Grounds was dated (merely) May, 2006 and subsequent to the grant of leave an Amended Statement (seeking relief in accordance with, and on the grounds, afforded by, the order) dated 12^th November, 2007 was prepared. It is to this that a Statement of Opposition was delivered on the 10^th March, 2008. Apart from traverses in relation to certain pleas in the Statement of Grounds, it is pleaded that the tribunal, on the evidence available to it, reaches the conclusion that "the applicant's account in support of his claim for asylum was implausible and incredible", that the tribunal identified five reasons why the applicant was found wanting in credibility, that having found the applicant was "wholly lacking in credibility", the tribunal was not obliged to go on to consider country of origin information, that in accordance with s. 16(16) of the Refugee Act 1999, the tribunal had considered certain documents (e.g. the Notice of Appeal, the report of the Commissioner pursuant to s. 13), that the tribunal considered "all of the documentation in the case including the medical evidence". It was denied in the ordinary way that the applicant was entitled to judicial review.

7 The proceedings are grounded on the affidavit of the applicant whereby a significant number of documents are exhibited which consist of:-

8 (i) An application to the Minister for a declaration that the applicant is a refugee.

9 (ii) A document similarly described as an "application" but which is in fact, a questionnaireinter alia affording an ample opportunity for the applicant, as with all purported refugees, to set out fully the facts and matters upon which he relies in support of his claim.

10 (iii) A record of an interview held with an officer of the Refugee Applications Commissioner.

11 (iv) A purported certificate of registration of the applicant as a student at the University of Marrakech.

12 (v) A medical report (of one Dr. Morris O'Halloran).

13 (vi) A medical referral form by the latter to an entity entitled "The Centre for the Care of Survivors of Torture (CCST).

14 (vii) A report prepared on behalf of the Commissioner pursuant to s. 13(1) of the Refugee Act,1996 as amended.

15 (viii) A copy of a visa application seeking permission for the applicant's entry into the State.

16 (ix) Certain country of origin information.

17 (x) Submissions (with additional country of origin information) made on behalf of the applicant to the tribunal on the occasion of the appeal against the refusal of the relevant recommendation by the Commissioner and further country of origin information associated therewith.

18 2. The tribunal's decision was dated the 26^th April, 2006 and was notified to the applicant by a letter of the 11^th May, 2006 (received by him on or about the 15^th May, 2006).

19 3. The applicant is a Moroccan national and claims that on 1^st May, 2005 he was distributing anti-monarchist leaflets at Marrakech University. He alleges that he was performing this task in the course of his activities as part of the "National Union for Moroccan Students" or L'UNEN, the aims of which are said to be the welfare of students and the overthrow of the monarchy on the basis, apparently, of Marxist Leninism ideas: the arrest, he says was effected by the secret police, that he was kept for two days in a police station in Marrakech and thereafter brought to a secret location, being taken in the fourth week of custody to a hospital in Marrakech from which he escaped on 27^th May, 2005, and was ultimately assisted to leave the country by an apparently wealthy benefactor of the student organisation (said to be a friend of the Deputy leader thereof). He says he was resident in the former's house in that context for approximately six weeks before departure. The applicant's says that he flew to Ireland via Paris. His initial address was given as and remains a hotel at Mary Street, Tralee, County Kerry and his initial application was made at the Commissioner's office in Dublin on 18^th July, although we do not know why he made his way to Tralee from his point of arrival in the jurisdiction. He apparently told the tribunal on two occasions that he had arrived in Cork but he had initially stated on his first approach to the Commissioner that he had arrived in Shannon. He presents a picture of imprisonment at an unknown location and of being subjected to daily beatings, ultimately ending in the last week of his imprisonment with deliberate electrocution. The purpose of the torture was apparently to extract from him information about other members of the organisation. He was brought to hospital, or so he says, at the end of this period, was not placed under guard and he was sufficiently well, apparently, having waited in a toilet for a period of time, to escape through the window and leave the scene in a rubbish truck. During the period when he was in hiding a passport was issued to him, as was a visa and he was able to leave Morocco (as a wanted man), only because a bribe was...