S (MM)(Sri Lanka) v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 13 October 2015
• Neutral Citation: [2015] IEHC 659
• Court: High Court
• Date: 13 October 2015

[2015] IEHC 659

THE HIGH COURT

[No. 847 J.R./2013]

S (MM)(Sri Lanka) v Min for Justice & Ors

No Redaction Needed

Approved Judgment

JUDICIAL REVIEW

BETWEEN

M.M.S. (SRI LANKA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY,

THE REFUGEE APPEALS TRIBUNAL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Asylum, Immigration & Nationality – Reg. 5 of the European Communities (Eligibility for Protection) Regulations 2006 – Fear of persecution – Whether evidence of applicant credible – Country of origin information

Facts: The applicant sought an order of certiorari against the decision of the first named respondent affirming the recommendation of the second named respondent that the applicant should not be declared a refugee. The applicant contended that the second named respondent failed to make an objective analysis of the applicant's claim by reference to the country of origin information.

Mr. Justice Eagar granted leave and an order for quashing the decision of the second named respondent and directed that the applicant's appeal should be determined by a different member of the second named respondent. The Court observed that the second named respondent contravened reg. 5 of the European Communities (Eligibility for Protection) Regulations 2006 as it failed to consider the adverse country of origin information before making negative credibility findings. The Court observed that the second named respondent ought to consider the narration of events given by the applicant in the light of the entire information available in the country of origin. The Court found that the second named respondent even did not pay heed to the medical evidence presented before it in the form of psychological ailments suffered by the applicant and the procedure adopted by the second named respondent in arriving to the decision was fundamentally flawed.

1 JUDGMENT of Mr. Justice Eagar delivered on the 13th day of October, 2015

2 1. This telescoped hearing seeks an order of certiorari of the decision of the first named Respondent which affirmed the recommendation of the Refugee Applications Commissioner ("the Commissioner") that the applicant should not be declared a refugee and seeking a fresh determination by a separate member of the Refugee Appeals Tribunal ("the Tribunal").

Grounds upon which relief is sought

3 2. The grounds upon which relief is sought are:

4 a a. The decision was arrived at in breach of fair procedures and natural justice. In particular, without prejudice to the generality of the foregoing, the grounds of appeal put forward by the applicant were not addressed in the decision. It is insufficient to reject a claim such as the applicant's on "pure credibility grounds" in circumstances where proper examination of the documentation lodged would have revealed that, regardless of any "credibility" issues, the applicant would or might suffer persecution to a level sufficient to entitle him to international protection if returned to Sri Lanka, merely on account of his being a failed asylum seeker and/or a Sri Lankan Tamil. In this regard there was no proper objective assessment of the applicant's claim and there was a breach of paras. 67 and 194 of the UNHCR Handbook, a breach of the applicant's "right to be heard" pursuant to domestic and European law and a breach of article 5 (1) of the European Communities (Eligibility for Protection) Regulations 2006 ("the 2006 Regulations").

5 b b. Without prejudice to the generality of the preceding ground, no proper regard was had to the following grounds of appeal raised and no reason or rationale was provided for the apparent rejection thereof:

6 i i. The details of the cases put forward by the applicant. These examples of treatment of others were relevant yet ignored.

7 ii ii. The contents of the SPIRASI report were given no weight by the Tribunal and no proper reason was provided for this.

8 iii iii. The prospective risk of persecution was not assessed by reference to the information and the documentation furnished.

9 c c. The process by which the applicant's application was dealt with was flawed and should be quashed. The "credibility" of the applicant's claim was incorrectly addressed. The Tribunal member seemingly adopted, but did not apply, the test mentioned by Kelly J. in S.C. v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 26th July 2000). No consideration took place of whether the applicant's version of events "could have happened". The rejection of the applicant's claim appears to be based purely on a gut feeling of the decision-maker as to the plausibility of the applicant's claim without any objective analysis of the applicant's claim by reference to up-to-date and relevant country of origin information from appropriate sources.

10 d d. "Credibility" was not assessed in accordance with the requirements of the UNHCR Handbook and the Directives (Qualifications and Procedures). The personal view of the decision-maker as to whether to believe the applicant is not relevant to a proper assessment of credibility in the sense required by the Directives.

11 e e. No regard was had to article 5 (2) of the Regulations of 2006 in the assessment of the applicant's claim.

12 f f. No proper reason or rationale is provided for the rejection of the applicant's claim

13 g g. No prospective objective assessment of the applicant's claim took place.

14 h h. The information put before the decision-maker, particularly as regard to harm which might be occasioned to the applicant if he were to be deported should, at least, put the Tribunal on enquiry in relation to these matters, but the Tribunal carried out no such enquiry thus rendering the decision invalid.

15 i i. The Tribunal did not properly consider the medical reports submitted on behalf of the applicant. Without prejudice to the generality of the foregoing, the fact that the presence of post traumatic stress disorder ("PTSD") was "very likely" was ignored and not considered as a possible explanation for any of the alleged inconsistencies in the applicant's account.

16 3. The applicant swore an affidavit for the purposes of verifying the facts set out in the statement to ground the application for judicial review and he avers that he applied for asylum in the State and detailed the history of the findings by the Refugee Applications Commissioner and the decision of the Refugee Appeals Tribunal. He also referred in this affidavit to the following:

17 a a. Medical report of Dr. Kieran Leonard dated the 29 ^th of April, 2013 and the photographs referred to therein.

18 b b. The application for refugee status questionnaire (translation) dated the 3 ^rd of December, 2012.

19 c c. The report of the Refugee Applications Commissioner dated the 27 ^th of May, 2013.

20 d d. The additional grounds of appeal dated 27 ^th August, 2013.

21 4. He also sought an extension of time in which to initiate the proceedings. It should be noted that the Respondent did not oppose the necessary extension of time.

The Refugee Appeals Tribunal - the applicant's claim

22 5. At the beginning of the decision by the second-named respondent, he states that "for avoidance of doubt, the Tribunal would reiterate that what follows in this section is a summary of the relevant evidence tendered by the Appellant at his oral hearing only." The additional evidence submitted orally by him at the s.11 interview can be found in the transcript of the interview.

23 6. This Court has repeatedly complained that the Court never obtains a copy of the evidence in chief in the cross-examination together with any questions posed by the Refugee Appeals Tribunal. In this case it is quite clear from the second-named respondent that all that is provided is a summary of what the second-named respondent believed to be the relevant evidence tendered by the Appellant at his oral hearing and thus any judicial review challenge to the decision of the Tribunal in this case is therefore limited in an unsatisfactory way by the failure by the Refugee Appeals Tribunal to provide the details of the relevant evidence tendered by the Appellant. This is a serious handicap, in particular in a case of such importance as this. The Court will deal with this issue later in the judgment.

24 7. The second-named respondent stated that the Appellant claimed that he was a Tamil maths teacher. He said he met a distant cousin of his, R., in June 2005. He was a member of the Intelligence Division of LTTE (Liberation Tigers of Tamil Eelam). This person allegedly warned him off against having any association with PLOTE (Peoples' Liberation Organisation of Tamil Eelam), a pro-government party. The applicant said he unwittingly gave information on V. to this cousin in December 2006. V. was subsequently murdered. The second-named respondent stated that "the Appellant tasked his cousin on this murder." His cousin told him that this person had allegedly raped three girls and deserved to die. The Appellant said he feared the LTTE as he felt they may be under the impression that he was a witness to the murder of this man. He then said that five PLOTE members were also allegedly murdered by the LTTE on the basis of the information he had provided to R. The second-named respondent said that the applicant stated how in 2009 he got into a fight with a man called S. over his girlfriend A. This man happened to be a PLOTE member. As a result he contended that the PLOTE began persecuting him. He said that they had called to his parents' home looking for him and told his parents they were from the PLOTE. He said that he then went to the United Kingdom for about a year. He said that he had not been in contact with his parents while he was in England. He went to the UK on a student visa. He said his girlfriend informed him...