A (R) v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 04 November 2015
• Neutral Citation: [2015] IEHC 686
• Court: High Court
• Date: 04 November 2015

A (R) v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

No Redaction Needed

IN THE MATTER OF THE REFUGEE ACT 1996, AS AMENDED

IN THE MATTER OF THE IMMIGRATION ACT 1999 AND

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 AND

IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)

BETWEEN

R. A.

APPLICANT

AND

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

RESPONDENTS

[2015] IEHC 686

[No. 1186 J.R./2011]

THE HIGH COURT

Asylum, Immigration & Nationality – The Refugee Act 1996 – The Immigration Act 1999 – The Illegal Immigrants (Trafficking) Act 2000 – The European Convention on Human Rights Act 2003 – Fear of persecution – Lack of credibility – Country of origin information – Leave to seek judicial review.

Facts: The applicant sought leave to seek judicial review of the decision of the first named respondent refusing to declare the applicant as refugee on the basis of negative credibility findings. The applicant contended that the first named respondent was bound to give a detailed narrative for its rejection of country of origin information and documentation presented before it.

Mr. Justice Richard Humphreys refused to grant leave to seek judicial review to the applicant. The Court, however, granted leave in relation to the statement of grounds. The Court held that the refugee law could not be seen in isolation from the administrative law and thus, the decision makers must enjoy a margin of appreciation in their assessment of evidence. The Court found that before a person could be called a refugee, all the conditions must be satisfied and the failure to satisfy even one condition was fatal to the claim. The Court held that the decision of the tribunal member to reject the claim was valid provided that the member had provided one valid independent and free-standing decision in relation to the applicant's failure to fulfil any essential condition for obtaining relief. The Court held that where the applicant's credibility was rejected at the outset, there was no obligation to assess the country of origin information. The Court held that the applicant had no right to request for narrative discussion as there was no rejection of the country of origin information giving rise to a legitimate entitlement to reason for the rejection.

1 1. The applicant originates from Abobo in Côte d'Ivoire where he was married with four children. He claimed to have suffered persecution there in his capacity as "a President" of a political party known as FPI, the Ivorian Popular Front, in his own area. He says that as a result of difficulties he suffered during unrest in 2011, including him being separated from his family, having been beaten and having his house set on fire, he left Côte d'Ivoire on 10 ^th May, 2011.

2 2. The applicant says his journey to Ireland was organised and assisted by a person who he calls "an agent" which seems to be a euphemism for a people trafficker (see the terminology of s. 4 of the Criminal Law (Human Trafficking) Act 2008).

3 3. The applicant says he arrived on a green Côte d'Ivoire passport in his own name, which he presented on arrival. How this was sufficient to gain him entry (in the absence of a visa) was not really explained. Nor was his route to Ireland, other than that he says that he passed through a German speaking country.

4 4. He appears to have arrived in Ireland on 11 ^th May, 2011 and applied for asylum the following day, 12 ^th May, 2011, at the office of the Refugee Applications Commissioner in Mount Street.

5 5. Following the rejection of his application for refugee status, he appealed to the Refugee Appeals Tribunal, which conducted an oral hearing into his claim. At the hearing, he gave his evidence in French via an interpreter.

6 6. The Tribunal decision signed by the first named respondent is dated 25 ^th November, 2011, and was sent to the applicant on 30 ^th November, 2011. Allowing for three working days for receipt brings the date of receipt to 5 ^th December, 2011. The notice of motion was filed on 13 ^th December, 2011. Therefore, no time issue arises in this case.

7 7. The applicant's evidence was rejected by the Tribunal Member essentially for reasons of credibility. A number of such grounds are set out in the decision, and a number of those relate to alleged conflicts in the evidence given by the applicant himself. At p. 14 of the decision, the member refers to the fact that the applicant gave somewhat inconsistent answers to the leader of this party in Abobo. At the Tribunal hearing, he gave his name as "Bamba Youssouff". It was put to him at the substantive interview, he was asked to name the leader of the party in his area and he gave that name as "Kuadio Fibel". In reply, he seems to have stated that the name he gave at interview was the name of the secretary.

8 8. A second contradiction was his contention that Bamba Youssouff was the representative from the area within parliament. He alternatively claimed that "General Bruno" was the Member of Parliament in his area.

9 9. Thirdly, he is said to have engaged in contradiction as to his evidence because in his section 8 interview and AYS 1 Form, he stated that his wife and children had fled to Ghana. In his evidence of his appeal, he claimed not to know where they were, and said that the earlier account was perhaps a mistake of the interpreter. He said that at that time he did not know where they were but that church members advised him that some people had fled to Ghana and other surrounding countries like Togo.

10 10. In addition to these alleged contradictions in the applicant's evidence, the applicant was also challenged on not knowing the names of security forces in the area. He was asked why he did not give any names of groups recorded in country of origin information on file. In response, he stated that this was because he knew that "Gendarmes" (the name he gave) were the security agents for President Gbagbo and that is why he did not give the other names. It was also put to him that he appeared to have been unable to give the names of the youth militias loyal to President Gbagbo. In reply he stated that he did not name any of the militias because he knew "Gendarmes" was the security of Gbagbo, as it was put.

Are the credibility findings lacking in substance?

11 11. As a first ground of attack upon the Tribunal decision, Mr. Mark de Blacam S.C. for the applicant has essentially criticised the findings of contradiction or lack of credibility as being not weighty and as not being a basis for rejection of the applicant's case.

12 12. It is well established that the weight to be assigned to particular matters before the Tribunal Member is a matter for that member (see e.g., per Stewart J. in H.J.(Zimbabwe) v. Minister for Justice, Equality and Law Reform [2015] IEHC 471 at para. 18). In my view the analysis of the alleged contradictory or incomplete account given by the applicant is well within the jurisdiction of the Tribunal Member. An approach which seeks to pull apart a decision in a microscopic manner runs the risk of creating an artificially high bar for a tribunal decision to have to cross in order to be upheld. This would move the centre of gravity from the tribunal to the court in terms of whether an application could lawfully be rejected. Refugee law cannot be construed as something to exist in isolation from administrative law generally, and administrative decision makers must enjoy an appropriate "margin of appreciation" as to how to assess contradictions in evidence, gaps in evidence, or other matters properly within their jurisdiction. The process by which the Tribunal Member arrived at his conclusions in this respect is not open to criticism.

Is the decision invalid because the Tribunal failed to give good reason for rejecting the applicant's documentation?

13 13. As part of the application for asylum, the applicant presented an "electoral card" which was not accepted by the Tribunal as a sufficient basis for upholding the claim. The Tribunal found certain flaws in the document which in its view did not strengthen the case for reliance on the document. Mr. de Blacam's next line of attack on the decision is to complain regarding the basis for rejection of this document.

14 14. He draws attention to the statement of Cooke J. in I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 510 that, where documents are rejected, a reason for the rejection must be given. Mr. de Blacam contends that while a reason was given, it was a bad reason. While it seems to me that the "electoral card" botches the applicant's name, by transposing his first name and surname, this was not the particular error claimed by the Tribunal. The Tribunal said that the card misspelled his name by incorrectly omitting the letter "h" although I cannot follow this argument as it does not seem to do so. Furthermore it held that the French word for May (Mai) is mispelt as "mais" However this also appears to be a misunderstanding because the word "mais" does not appear on the document either. Rather the word "nais" appears, which, it seems reasonable to assume, is short for "naissance" which refers to the applicant's date of birth and is therefore not an error.

15 15. The Tribunal Member's decision would certainly seem to be open to criticism in relation to the manner in which this document was analysed and I would uphold the submission of the applicant that the Tribunal fell into error in this regard.

16 16. Is this error fatal to the validity of the decision overall? There are a number of features of the case that militate against such a conclusion:

i (i) the fact that the document does indeed contain a flaw, although not the flaw particularly adverted to by the...