R.S. (Sri Lanka) v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Stewart
• Judgment Date: 17 October 2016
• Neutral Citation: [2016] IEHC 550
• Docket Number: [2011 No. 634 J.R.]
• Court: High Court
• Date: 17 October 2016

[2016] IEHC 550

THE HIGH COURT

JUDICIAL REVIEW

Stewart J.

[2011 No. 634 J.R.]

BETWEEN

R.S. (Sri Lanka)

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

REFUGEE APPEALS TRIBUNAL

ATTORNEY GENERAL

RESPONDENTS

Asylum, Immigration & Nationality – Refusal to grant refugee status – Adverse credibility – Fair procedures – Evidence and reports – Probative value – Internal relocation

Facts: The applicant sought an order of certiorari for quashing the decision of the second named respondent, which affirmed the negative recommendation of the Office of the Refugee Applications Commissioner (RAC) not to grant refugee status to the applicant. The applicant contended that there was breach of fair procedures as the second named respondent failed to properly deal with the documents and evidences of the applicant. The second named respondent contended that the second named respondent considered all the documents and evidences submitted by the applicant and the applicant's application for refugee status was refused on the grounds of credibility.

Ms. Justice Stewart refused to grant the relief sought by the applicant on the ground that the decision of the second named respondent was reasoned and rational. The Court found that, as the applicant could not provide a cogent explanation for not seeking asylum in the first available country, the second named respondent was entitled to arrive at an adverse credibility finding. The Court found that the second named respondent duly considered the medical reports and determined the probative value to be attached to those reports. The Court held that as the applicant's claim was rejected on credibility grounds, the second named respondent was not entitled to consider internal relocation or state protection to the applicant. The Court, however, noted that the applicant was a low-level activist who had no risk from national authorities and thus, internal relocation would be available to him.

JUDGMENT of Ms. Justice Stewart delivered on the 29th day of July, 2016.

1 This is telescoped hearing for judicial review seeking an order of certiorari to quash a decision of the Refugee Appeals Tribunal (RAT) dated 31st May, 2011, and notified to the applicant by cover letter dated 14th June, 2011, which affirmed the negative recommendation of the Office of the Refugee Applications Commissioner (RAC) not to grant the applicant's claim for refuge status.

2 These proceedings were issued on 21st July, 2011, approximately two weeks outside the 14-day timeframe allowable for initiating a judicial review of this nature. An extension of time was sought and the respondents did not object to same. Further, the applicant explained the delay on affidavit as follows:-

‘I say that upon receipt of the Decision herein challenged on or about the 15th June 2011 I awaited advices from my former Solicitors, the Refugee Legal Services. I had already formed the view that I wished to challenge the decision on whatever legal basis was available to me. I subsequently received advices in writing from my former Solicitors to the effect that there may be ground for challenging the Decision by way of Judicial Review and that I should contact a private Solicitor which I did with all due expedition and I therefore pray this Honourable Court for such an extension of time as may be required to initiate the within proceedings.’

In these circumstances, I am satisfied that good and sufficient reasons have been set out by the applicant such as to warrant an order to extend the time for the bringing of the judicial review application in this case and so I extend the time.

Background

3 The applicant is a Sri Lankan national of the Tamil ethnic group. He was born on 29th September, 1978. The following is the account provided by the applicant of the alleged persecution that gave rise to his claim for international protection in Ireland. The applicant states that he was a member of the Liberation Tigers of Tamil Eelam (LTTE) and worked as their photographer. He was arrested, detained, interrogated and tortured by State authorities and members of Eelam People's Democratic Party (EPDP), a Tamil paramilitary organisation supporting State forces, in order to extract information from him. He was held over a five-day period and released on 17th August, 2007. The applicant was released on the condition that he sign on every day at army headquarters. On 17th October, 2007, the applicant was again seized by EPDP members, brought before three people and asked to identify the LTTE commander. He informed his captors that he did not know the people but, eventually, pointed randomly at one person because he was afraid. The EPDP then shot that man in the head in front of the applicant. The applicant stated that his safety is now under threat from the LTTE because he provided information to State authorities. The applicant left Sri Lanka on 5th November, 2007, and travelled to Moscow. After spending 47 days there, he arrived in Ireland on 28th December, 2007, and applied for asylum on that date.

4 The applicant submitted documents in support of his claim, namely: a national identity card, a birth certificate, work identity cards, education certificates, internet news printouts, medical certificates, photographs and Human Rights Commission letters. The applicant was interviewed pursuant to s.11 of the Refugee Act 1996 (as amended) on 30th April, 2008, where a Tamil interpreter assisted via telephone. The applicant sought to have the decision delayed until a SPIRASI report was finalised. By letter dated 11th August, 2008, further documentation was submitted, including the applicant's LTTE membership card, a letter from the LTTE's political wing that outlined the applicant's role as their photographer, corrections to the translated questionnaire, documents that identified the applicant's brother as an LTTE member, information concerning his death as a fighter and country of origin information (COI) reports. The SPIRASI report, dated 27th August, 2008, was forwarded to the RAC by cover letter dated 15th September, 2009, which stated that the applicant's psychological trauma is consistent with the events he described. The applicant attended for a second s.11 interview on 7th September, 2009, with a Tamil interpreter present at interview.

5 The RAC issued a negative recommendation in respect of the applicant's claim for international protection on 2nd October, 2009, which the applicant appealed to the RAT by notice of appeal dated 2nd November, 2009. The applicant attended the offices of the RAT for the purposes of that appeal on 14th February, 2011. He submitted, inter alia, further COI documents, letters from Irish organisations attesting to the applicant's good character, a letter from the Restoring Family Links section of the Irish Red Cross; a reference from a research scholar at Trinity College Dublin School of Ecumenics' People's Tribunal of Sri Lanka, an ophthalmologist's report and a further SPIRASI report from a different examining physician dated 13th July, 2010.

6 The RAC's s.13 report set out the following reasons for its recommendation that the applicant should not be declared a refugee:

i. The fact that the applicant had to sign on daily at army headquarters was not consistent with his stated fear of State authorities;

ii. It was not credible that the EPDP would release the applicant after he had witnessed the shooting;

iii. The claim that the applicant lived in Sri Lanka for his entire life was undermined by his inability to readily identify all local bank notes;

iv. His inability to translate basic Sinhalese words undermined his claim that he was habitually residence was in Sri Lanka;

v. His fear of being arrested at the airport, if returned to Sri Lanka, was not supported by COI materials;

vi. The applicant did not provide any evidence of travel, and there were issues with the account of his travel;

vii. The applicant's description of getting through Moscow airport was not credible,

viii. The applicant's description of his arrival in Ireland by ferry was not supported by recorded arrivals in Ireland that day;

ix. The applicant's claim that he travelled through regions in Europe that had yet to enter the Schengen area was not credible;

x. The applicant spent a considerable period of time in Moscow and his reasons for not claiming asylum there were not credible;

xi. The COI materials did not support the applicant's claim that he would be at risk from State authorities; and,

xii. As a person of Tamil ethnicity, the applicant could safely relocate to Colombo, according to COI materials.

Impugned decision

7 The RAT affirmed the negative recommendation of the RAC in their decision dated 31st May, 2011, and issued to the applicant by cover letter dated 14th June, 2011. From p. 21 of the decision, the Tribunal member sets out the applicant's claim and analyses it, which can be summarised as follows:-

i. The applicant failed to provide a sufficient explanation to substantiate his claim that Ireland was his first safe country, since he spent 47 days in Moscow without claiming asylum. Having regard to s.11B (b) of the 1996 Act, the Tribunal member stated that this undermined the applicant's credibility.

ii. The applicant stated that he had lived in Sri Lanka for his whole life but his geographic knowledge, knowledge of Sinhalese and ability to identify bank notes were very limited. The Tribunal member stated that it would appear that the applicant made false representations in support of his application and this further undermined his credibility.

iii. The applicant's claim that he would be in danger from the LTTE as a person that had provided assistance to opposing forces was not substantiated by the COI materials.

8 The Tribunal member then goes on to state, from p. 36, as follows:-

‘Based on the above, and in...