E. S. v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 22 July 2014
• Neutral Citation: [2014] IEHC 374
• Court: High Court
• Date: 22 July 2014

[2014] IEHC 374

THE HIGH COURT

[No. 1080/J.R./2009]

S (E) v Refugee Appeals Tribunal & Ors

No Redaction Needed

JUDICIAL REVIEW

BETWEEN

E. S.

APPLICANT

-AND-

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

RESPONDENTS

REFUGEE ACT 1996 S13(6)(A)

REFUGEE ACT 1996 S11B(F)

REFUGEE ACT 1996 S11B(B)

REFUGEE ACT 1996 S11

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PARA 199

RSC O.84

A (MS) v REFUGEE APPEALS TRIBUNAL (MCGARRY) & MIN FOR JUSTICE UNREP CLARK 13.10.2009 2009/2/283 2009 IEHC 435

REFUGEE ACT 1996 S11C

REFUGEE ACT 1996 S11B

T (F) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP MAC EOCHAIDH 18.4.2013 2013/49/13971 2013 IEHC 167

TALBOT v BORD PLEANALA & ORS 2009 1 IR 375 2009 1 ILRM 46 2008 60 12417 2008 IESC 46

A (A) [PAKISTAN] v REFUGEE APPEALS TRIBUNAL UNREP MAC EOCHAIDH 18.9.2013 (EX TEMPORE)

Refugee Appeals Tribunal – Fear of persecution – Judicial Review Application - Creditability of applicant – Evidence – Refugee Legal Service – Military Conscription – Procedure

The facts of this case involved a contested decision by the Refugee Appeals Tribunal refusing to grant the applicant refugee status. The applicant in question is a Georgian National, claiming that he fled Georgia because of his fears of imprisonment on account of his refusal to be conscripted into the Georgian Army. The applicant states that he evaded being drafted into the army as he has a conscientious objection to violence and could not take up arms against another human being. The applicant sought leave to seek judicial review and sought certiorari of the decision of the Refugee Appeals Tribunal. The issue was brought before Mac Eochaidh J. in the High Court.

Mac Eochaidh J carefully considered the submissions of the parties. The respondent argued that the applicant did not provide any information in relation to his fear of returning to his country of origin because of evading conscription into the army. Additionally, the tribunal claimed he provided incorrect details as regards how he travelled to the State. This married with the fact that the applicant didn”t seek the advice of the Refugee Legal Service. The Tribunal found the applicant's overall claims lacked substantial credibility. Counsel of the applicant disagreed, submitting that Contrary to the Tribunal”s assertions, the applicant gave detailed evidence in relation to his refusal to be conscripted during his interview. The applicant further asserted that any fair minded assessment of this evidence would be that the applicant had 'come clean' in relation to the manner and methods by which he travelled to the State and that an explanation for his previous claims was voluntarily proffered at the outset. Analyzing the submissions from the parties Mac Eochaidh J concluded that the applicant failed to establish by any objective means what negative consequences might befall him should he return to Georgia by reason of his failure to answer the call to military service. Mac Eochaidh J stated the identified flaw is more associated with a failure to meet what is referred to as the forward looking test as to the likelihood of future persecution rather that a general credibility issue. Mac Eochaidh J. explained that the central importance in an asylum claim is that an applicant establish a well-founded fear of persecution. In this case the applicant had failed to do so. Mac Eochaidh J found that this was the primary reason the claim for Refugee Status was denied correctly even if the applicant was deemed to lack overall credibility. Mac Eochaidh J. held that leave to seek Judicial review against the Tribunal”s decision must be refused.

1 1. This is a 'telescoped' application for leave to seek judicial review by a Georgian national seeking certiorari of a decision of the Refugee Appeals Tribunal (the "Tribunal") dated 18 ^th September 2009. The decision of the Tribunal proceeded on the basis of a determination on the papers only following a finding under s. 13(6)(a) of the Refugee Act 1996 at first instance dispensing with an oral hearing. The decision of the Tribunal affirmed the recommendation of the Refugee Applications Commissioner refusing the applicant refugee status.

Background:

2 2. The applicant was born on 27 ^th June 1980 and is from the district of Gori in Georgia. He states that he left Georgia on the 12 ^th August 2008 and arrived in Ireland on or about the 15 ^th or 16 ^th August 2008. He claimed asylum in the State on the 29th August 2008. The applicant claims that he fled Georgia arising from the conflict between Russia, South Ossetia, Abkazhia and Georgia and because of his fears of imprisonment on account of his refusal to be conscripted into the Georgian Army. The applicant states that he evaded being drafted into the army as he has a conscientious objection to violence and could not take up arms against another human being.

Tribunal Decision:

3 3. The 'Analysis of the Applicant's Claim' in the Tribunal decision of 18 ^th September 2009 is set out in three paragraphs and comprises three findings in relation to credibility. Firstly, the Tribunal Member states that the applicant did not provide any information in relation to his fear of returning to his country of origin because of evading conscription into the army. In this regard the Tribunal notes that the applicant retained the services of the Refugee Legal Service from 4 ^th September 2008 and finds that he did not provide a reasonable explanation for failing to seek their advice with regard to providing this correct information. Further, in this regard the Tribunal Member also notes that the applicant was educated to university level in Georgia and concludes that his evidence is neither plausible nor credible and that it undermines his credibility. Given its centrality it is worth setting out the paragraph in its entirety:

"The Applicant did not provide any information in relation to his fear of returning to his country of origin because he evaded the draft to the reserve army. In light of the fact that he retained the services of the RLS on the 4 ^th of September 2008, the Applicant did not provide a reasonable explanation for failing to seek the advise of the RLS in relation to providing the correct information. The Applicant has been education to university level in his country of origin, therefore, I conclude that his evidence is neither plausible or nor credible and I find it undermines his credibility."[sic]

4 4. Counsel for the applicant has sought to deconstruct this text in a manner not warranted by its proper meaning. The applicant has urged the court to consider each sentence in isolation and made submissions in respect of: i) the failure of the applicant to provide information; ii) the failure to provide a reasonable explanation for failing to seek the advice of the Refugee Legal Service; and iii) the finding that the applicant has a university...