A (S) v Refugee Appeals Tribunal & Minister for Justice

JurisdictionIreland
JudgeMr. Justice McCarthy
Judgment Date28 July 2009
Neutral Citation[2009] IEHC 383
CourtHigh Court
Date28 July 2009
A (S) v Refugee Appeals Tribunal & Minister for Justice

BETWEEN

S.A.
APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENTS

[2009] IEHC 383

[No. 800 J.R./2007]

THE HIGH COURT

IMMIGRATION

Asylum

Errors of fact - Credibility - Tribunal placed reliance on two significant errors of fact in rejecting applicant's credibility - Whether errors such that tribunal in breach of obligation to assess application in accordance with principles of constitutional justice - Whether errors had capacity to affect correctness of process by which decision reached - Whether material or significant error - Severability - Decision in round - Ryanair Ltd v Flynn [2000] 3 IR 240, T (G) v Minister for Justice, Equality and Law Reform [2007] IEHC 287, (Unrep, HC, Peart J, 27/7/2007), Imafu v Minister for Justice, Equality and Law Reform [2005] IEHC 416, (Unrep, HC, Peart J, 9/12/2005), P(V) v Refugee Appeals Tribunal [2007] IEHC 415, (Unrep, HC, Feeney J, 7/12/2007), T (AM) v Refugee Appeals Tribunal [2004] IEHC 219, [2004] 2 IR 607, Carciu v Minister for Justice, Equality and Law Reform (Unrep, HC, Finlay Geoghegan J, 4/7/2003), State (Keegan) v Stardust Compensation Tribunal [1986] IR 642, [1987] ILRM 202, O'Keeffe v An Bord Pleanála [1993] 1 IR 39, Doran v Minister for Finance [2001] 2 IR 452, Kikumbi v Refugee Applications Commissioner [2007] IEHC 11, (Unrep, HC, Herbert J, 7/2/2007 ), Bisongi v Minister for Justice, Equality and Law Reform [2005] IEHC 157, (Unrep, HC, O'Leary J, 25/4/2005) and Keagnene v Minister for Justice, Equality and Law Reform [2007] IEHC 17, (Unrep, HC, Herbert J, 31/1/2007) considered - Application for judicial review refused (2007/800JR - McCarthy J - 28/7/2009) [2009] IEHC 383

A (S) v Refugee Appeals Tribunal & Minister for Justice

Facts the applicant had been granted leave to seek judicial review of the decision of the respondent refusing her appeal against the recommendation of the Refugee Applications Commissioner that she not be recognised as a refugee on the grounds, inter alia, that the respondent had made an error of fact in reaching its decision.

Held by Mr. Justice McCarthy in refusing to grant the relief sought that reliance by a decision maker upon an error of fact would be a breach of constitutional justice but a conclusion that an error of fact had been made could only be made if it was plain that the conclusion was irrational in the sense contemplated in O'Keeffe v. An Bord Pleanalá [1993] 1 I.R. 39. Whether a given error had a capacity to affect the correctness of the decision making process was a question of judgement on the facts of each case. The error in question did not have the capacity, when the decision was taken in the round, to affect the decision making process as the error only arose on a peripheral matter. When deciding whether a particular error was severable from the rest of the decision one was entitled to consider whether, as a matter of reason, a greater weight had been attached to one factor rather than another and to look at the decision in the round.

Reporter: P.C.

RYANAIR LTD v FLYNN & MCAULEY 2000 3 IR 240 2001 1 ILRM 283 2000 ELR 161 1999/22/7306

T (G) v MIN FOR JUSTICE UNREP PEART 27.7.2007 2007/57/12325 2007 IEHC 287

IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416

P (V) & P (S) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP FEENEY 7.12.2007 2007/50/10642 2007 IEHC 415

T (AM) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2004 2 IR 607 2004 IEHC 219

CARCIU v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP FINLAY-GEOGHEGAN 4.7.2003 2003/8/1638

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

DORAN & ORS v MIN FOR FINANCE & ORS 2001 2 IR 452 2001 ELR 330 2001/6/1448

KIKUMBI v REFUGEE APPLICATIONS CMSR & MIN FOR JUSTICE UNREP HERBERT 7.2.2007 2007 IEHC 11

REFUGEE ACT 1996 S11B

BISONG v MIN FOR JUSTICE UNREP O'LEARY 25.4.2005 2005/4/814 2005 IEHC 157

KEAGNENE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HERBERT 31.1.2007 2007/31/6465 2007 IEHC 17

1

Mr. Justice McCarthy delivered on the 28th day of July, 2009

2

1. On 31 st March, 2009, my colleague, Clark J. afforded leave to the applicant to seek, inter alia, an order of certiorari quashing the decision of the Refugee Appeals Tribunal recommending to the Minister the refusal of the applicant's application for a declaration that she was a refugee (being a decision of 30 th April, 2007). Whilst additional grounds had been sought on the applicant's initial application for leave on notice to the respondents, Clark J. afforded liberty to seek such relief on the following grounds only:-

"The first named respondent placed reliance on the following two significant errors of fact in rejecting the applicant's credibility and in refusing the appeal.

(i) The first named respondent found a contradiction in the applicant's evidence of the whereabouts of her passport between what she stated in her questionnaire and her explanations at s. 11 interview and before the Tribunal. In fact, there was no such contradiction.

(ii) The first named respondent found an unresolved discrepancy between the applicant's evidence before the Tribunal as to whether or not she returned home on the 14 th March, 2006, and her statements at s. 11 interview. In fact, there was no such unresolved discrepancy."

3

2. In her judgment of 31 st March, 2009, Clark J. comprehensively set out the background to the present proceedings and I do not think that I need do so again here. I might, however, briefly say that the applicant arrived in the State on 17 th May, 2006, thereupon made an application for refugee status utilizing that form commonly known as "ASY 1" being what one might term a brief initiating document, that she subsequently completed a form of questionnaire (again of a standard form) on 24 th May, 2006, and later she was interviewed by an officer of the Refugee Applications Commissioner on 14 th August, 2006. The Commissioner recommended a refusal of a declaration that she be afforded refugee status by a decision ultimately dated 19 th September, 2006. She appealed to the Tribunal on 17 th October, 2006. She had the benefit of an oral hearing before the Tribunal on 20 th March, 2007. The appeal was rejected on 13 th April, 2007, notice of such decision being afforded to her under cover of letter of 4 th May, 2007.

4

3. The applicant says that she has a well-founded fear of persecution in the event that she is returned to her home State (Belarus), and by reason of her political opinion, the latter arising as a result of her membership and activity with a political party which is known as the Belarusian Social Democratic Party (BSDP), or so she says and, in addition, by reason of her membership of a particular social group, namely, that comprising persons associated with or perceived to be associated with the BSDP.

5

4. All parties are agreed that the rejection of the appeal by the Tribunal was based solely on negative credibility findings in respect of the applicant. Counsel for the applicant has very clearly summarised the relevant errors, under the headings 'The Passport Error' and 'The Returning Home Error'.

6

5. Of relevance to this case is the fact that in the Questionnaire at para. 20 and in response to a request to list any documentation upon which she might rely when she said that:-

"I do not have them at the moment, but my parents will send them (to me) as soon as possible".

7

In response to enquiries in that part of the questionnaire (at "Para 4" para 32(a) in which "Travel Details" were sought), she stated that her Passport had been "stolen".

8

6. Of further relevance is the fact that during the course of the applicant's interview with Mr. Gerard A. Fitzpatrick on behalf of the Refugee Applications Commissioner, she referred to a search of "our house" (which appears to mean her mother's house). In that regard, she is noted as saying that on the 14 th March 2006:-

"They took books, documents, computer, scanner, printer and passport and documents." (page 14)

9

7. In the course of her oral hearing, the Tribunal Member refers in his decision to her evidence pertaining to her Passport when he says (at p. 2) that:-

"The applicant said she was issued with Passport, however, it was stolen, (question 32(a)). The applicant says that she left her country of origin on 14 th May, 2006 by truck and she did not know what countries she travelled through."

10

Later, in the course of the hearing the applicant referred to the fact that the KGB had searched her house and in that context, the applicant apparently told the Tribunal that:-

"As a consequence of the KGB searching her house, the removal of CDs, books and pamphlet ( sic) and her passport occurred and the only person to witness this was her mother."

11

8. The Tribunal Member says that he asked her to comment on "… the contradiction that had arisen between her evidence and her answer on her questionnaire at question 32(a) in respect of her Passport. The applicant had said her Passport was stolen, however, in her evidence she said that it had been taken by the KGB. The applicant's reply to this was that her view was that once the KGB had taken it, in fact, that it was stolen."

12

9. In his analysis of the applicant's evidence on the "Passport error", the Tribunal Member stated that:-

"The applicant's evidence with regard to her Passport and the differing answers she had given with regard to its whereabouts was ( sic) neither plausible nor credible. Having observed the applicant's demeanour and heard her evidence, I found her answer to the contradiction in her evidence to be neither plausible nor...

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3 cases
  • Rashid v The Minister for Justice and Equality
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