S. (O) v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: MR JUSTICE HEDIGAN
• Judgment Date: 04 November 2008
• Neutral Citation: [2008] IEHC 342
• Date: 04 November 2008
• Court: High Court
• Docket Number: [1402 JR/2006]

S (O) v Refugee Appeals Tribunal & Min for Justice

BETWEEN

O. S.

APPLICANT

AND

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

RESPONDENTS

[2008] IEHC 342

[1402 JR/2006]

THE HIGH COURT

IMMIGRATION LAW

Asylum

Credibility - Treatment of applicant's credibility - Inconsistencies - Whether open to tribunal member to draw negative credibility findings from discrepancies - Reliance on undisclosed material - Expertise of tribunal member acquired at conference -Whether applicant entitled to see materials relating to conference - Whether tribunal member entitled to rely on knowledge acquired in the course of experience and training - Substantial grounds - Extension of time - Whether good and sufficient reason to extend time - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(2)(a) Application for leave to apply for judicial review refused (2006/1402 JR - Hedigan J - 4/11/2008) [2008] IEHC 342

S (O) v Refugee Appeals Tribunal

Facts: the applicant sought leave to apply for judicial review of the decision of the respondent refusing his appeal against the recommendation of the Refugee Applications Commissioner that he be refused asylum in this State. The tribunal member based her decision on her assessment that the identity card relied upon by the applicant was altered or falsified and that, accordingly, the applicant was not from the country he stated to be from. She referred to and relied upon the experience gained at a training conference for asylum assessors that she had attended which dealt with the assessment of such identity cards. The applicant complained that the materials pertaining to the training conference had not been disclosed to him.

Held by Hedigan J in refusing leave to apply for judicial review that the applicant had not established substantial grounds for contending that the decision was invalid. It was open to the respondent to highlight inconsistencies in the applicant’s evidence and draw negative credibility findings from those discrepancies. A decision maker was entitled to rely on knowledge acquired in the course of his experience and training and it would be irrational if decision makers were precluded from relying on objective information with which they gain familiarity through their work.

Reporter: P.C.

REFUGEE ACT 1996 S13(1)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(a)

JUDGMENT OF

MR JUSTICE HEDIGAN

1 , delivered on the 4th day of November. 2008.

2 1. The applicant is seeking leave to apply for judicial review of the decision of the Refugee Appeals Tribunal ("RAT") to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner ("ORAC") that the applicant should not be declared a refugee.

3 2. The applicant claims to be a national of Iran of Kurdish ethnicity. He says that until 2006, he lived in a village in Iran with his parents and siblings. His father, who is a member of the Kurdistan Democratic Party of Iran (KDPI), made a living by transporting materials including KDPI propaganda across the border from Iraq into Iran. The applicant worked in his father's transportation business from 2003 to 2006 but although he is a sympathiser, he was not a member of the KDPI.

4 3. The applicant claims that on 8^th January, 2006, he and his father were smuggling materials including KDPI propaganda across the border when officers began shouting at them from a mountain base and started shooting in the air. The officers arrested the applicant's father but the applicant managed to run away. Upon reaching his aunt's house, he found out that the officers had brought his father to the family home, searched it, recovered items relating to the KDPI and were now looking for the applicant. The applicant feared that if he was arrested, he would be imprisoned, tortured or killed and so, he made arrangements to flee the country.

5 4. The applicant arrived in the State on 8^th February, 2006 - having travelled via Turkey - and applied for asylum. With his ASY-1 form he submitted a shenasnameh, an Iranian birth certificate that doubles as an identity card. He attended for interview with an authorised ORAC officer who then drew up a report, dated 12^th April, 2006, in compliance with 13(1) of the Refugee Act 1996. In the section 13 report, the ORAC officer found that the applicant lacked credibility and therefore recommended that he should not be declared a refugee. From that decision, the applicant appealed to the RAT and an oral hearing was held.

The RAT oral hearing

6 5. At the RAT oral hearing, the Tribunal Member relayed her belief that the applicant'sshenasnameh (identity card) was altered or falsified in some way. She referred to a conference that she had attended in London which had dealt with matters relating to Iranian identity cards and she questioned the applicant on the procedures used with respect to the identity card. At the request of his counsel, the applicant was given a fortnight from the date of the hearing to make written representations on the issue. On 21^st July, 2006, the Refugee Legal Service (RLS) wrote to the Tribunal Member requesting "copies of the conference notes / materials to which she referred at the oral hearing" and stating that no representations would be made until such materials were disclosed. Receipt of the request was acknowledged by the RAT but no substantial reply was forthcoming. No written submissions were made by or on behalf of the applicant.

The RAT decision

7 6. By decision dated 9^th October, 2006, the Tribunal Member refused the applicant's appeal. She noted discrepancies and contradictions in his account of events and found his explanations for those inconsistencies to be unacceptable. She rejected the evidence that he provided to the effect that he is from Iran. She noted that it is understandable that applicants for refugee status may not always tell the complete truth, but that an applicant's evidence as to nationality or identity must be core or central to their claim.

Extension of Time

8 7. The applicant commenced the within proceedings outside the 14-day period allowed under section 5(2)(a) of theIllegal Immigrants (Trafficking) Act 2000. He has offered an explanation for the delay in instituting proceedings and the respondents have not raised any...