S.A. v Refugees Appeal Tribunal

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Kevin Cross
• Judgment Date: 01 March 2012
• Neutral Citation: [2012] IEHC 101
• Date: 01 March 2012

[2012] IEHC 101

THE HIGH COURT

[No. 978 J.R./2009]

A (S) & Ors [Georgia] v Refugee Appeal Tribunal (McCabe) & Min For Justice

JUDICIAL REVIEW

BETWEEN

S.A., L.D., S.M. (A MINOR), E.D. (A MINOR SUING BY THEIR NEXT FRIEND AND MOTHER S.A.) (GEORGIA)

APPLICANTS

AND

REFUGEES APPEAL TRIBUNAL (TRIBUNAL MEMBER, BERNARD MCCABE) AND MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

REFUGEE ACT 1996 S3

REFUGEE ACT 1996 S11B(C)

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

O (S) & ORS v MIN FOR JUSTICE (NO 2) UNREP COOKE 28.10.2010 2010/40/10089 2010 IEHC 374

Z (AIM) v REFUGEE APPLICATIONS CMSN & ORS UNREP CLARK 7.11.2008 2008/61/12819 2008 IEHC 420

D (T) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 28.4.2010 2010/10/2357 2010 IEHC 125

R (H) [BELARUS] v REFUGEE APPEALS TRIBUNAL (MCCABE) & MIN FOR JUSTICE UNREP COOKE 15.4.2011 2011 IEHC 151

REFUGEE ACT 1996 S11B

W (FG) & S (S) (A MINOR) v REFUGEE APPEALS TRIBUNAL (BRENNAN) & MIN FOR JUSTICE UNREP COOKE 5.5.2011 2011 IEHC 205

IMMIGRATION LAW

Asylum

Refugee status - Negative credibility findings - Demeanour of first applicant - Whether negative credibility findings against applicants incorrect and irrational - Whether insufficient consideration of documentation submitted by applicants - Whether failure to adequately consider applications of second, third and fourth applicants - D(T) v Refugee Appeals Tribunal [2010] IEHC 125 (Unrep, Cooke J, 28/4/2010) followed - R(H) v Refugee Appeals Tribunal [2011] IEHC 151 (Unrep, Cooke J, 15/4/2011); W(FG) v Refugee Appeals Tribunal [2011] IEHC 205 (Unrep, Cooke J, 5/5/2011) considered - Leave granted (2009/978JR - Cross J - 3/1/2012) [2012] IEHC 101

A(S) v Refugee Appeals Tribunal

Facts The applicants were nationals of Georgia, who had arrived in the State and made an application for asylum. Their claim was based upon the alleged persecution they suffered following the defeat of the Georgian Citizens Union, the former ruling political party, of which the first named applicant was a member. The Refugees Appeal Tribunal rejected the claims on the basis that the applicants had failed to seek protection from police authorities. Some of the claims of persecution were not well-founded and in addition adverse credibility findings were made in relation to some of the evidence tendered. The applicants brought judicial review proceedings contending that the negative credibility findings made in respect of them were incorrect, unfair and irrational. There had been a failure to adequately consider the body of documentation submitted by the applicants in support of their claim and evidence had been cherry picked from documents to support conclusions to the absolute exclusion of other relevant documentation. It was submitted that everything that had a bearing on credibility must be considered in credibility determinations. It had also been contended by the applicants that they were not obliged to seek assistance from the State as the State was responsible for their persecution.

Held by Cross J in granting leave to seek judicial review: In order to successfully overturn the decision of the Tribunals, the applicants must establish that the adverse credibility findings made in respect of them were incorrect and irrational. In addition the court must be careful that it did not supplant its own judgment for that of the Tribunal Member. A number of conclusions with regard to the credibility had been made which the court disagreed with and these called into question the overall soundness of the decision. The Tribunal Member had relied on demeanour in circumstances where he was clearly in error as to the truth of the matter. The Tribunal Member had failed to consider specific documentation submitted by the applicants with the relevant care required. The Tribunal Member had also failed to consider the separate and distinct claims of the third and fourth named applicants (the independent claims of the minor children).

1 JUDGMENT of Mr. Justice Kevin Cross delivered the 1st day of March, 2012

2 1. This is an application for leave to seek judicial review of a decision of the first named respondent ("the Tribunal") dated 13 ^th August, 2009, in which the Tribunal Member affirmed the reports and negative recommendations pursuant to s. 3 of the Refugee Act 1996 (as amended) of the Office of the Refugee Applications Commissioner ("ORAC").

3 2. Ms. Saul Woolfson, of counsel appeared for the applicants and Mr. Anthony Moore, of counsel, appeared for the respondents.

Background

4 3. The applicants in this case are a family comprising of a mother, father and their two dependent children. The children were included in their mother's claim while the father applied separately. They are nationals of Georgia who upon arriving in this State made an application for asylum on 19 ^th April, 2007. Their claim is based upon the alleged persecution they suffered following the defeat of the Georgian Citizens Union, the former ruling political party, of which the first named applicant was a member.

5 4. The first named applicant asserted that after the "Rose Revolution", members of the Ministry for the Interior attacked her outside her home, shot bullets through her window, made threatening phone calls and attempted to abduct her son. She asserts that while she was hiding in a remote region of Georgia, her husband disappeared. It later transpired that he was detained by unknown men, who beat him and injected him with drugs, as a result of which he apparently developed Hepatitis C. He managed to escape in April 2006. and underwent treatment for his injuries. The applicants left Georgia together with the assistance of a trafficker in April 2007 after paying him $30,000.

The Decision of the Tribunal

6 5. The findings of the Tribunal which led it to uphold the decision of ORAC can be summarised as follows:-

7 (a) The applicants fail to seek protection from the police in circumstances where the country of origin information indicated that State protection was available.

8 (b) As the first named applicant would be categorised by the country of origin information as a low to medium level member or activist affiliated with the previous government, she was not likely to encounter persecution by the State authorities and her fear was therefore not well founded.

9 (c) Adverse credibility findings were made in relation to an alleged discrepancy in the first named applicant's evidence as to whether she had been summonsed to the Interior Ministry or not.

10 (d) Adverse credibility findings were made in relation to the first named applicant's apparently inconsistent statements regarding her rank or position within the party.

11 (e) Adverse credibility findings were made in relation to the first named applicant's entrance passes to a citizen's union meeting as they were different versions of her name.

12 (f) Adverse credibility findings were made in relation to the applicant's account of travel to and arrival in the State and s. 11B(c) of the Refugee Act 1996 (as amended) was invoked.

13 (g) As the medical reports produced by the first and second named applicants were not in line with the Istanbul protocol, they were not considered to corroborate or support their claims and hence did not alter the Tribunal's views of the applicants' credibility.

The Submissions

14 6. I have been furnished and have considered the affidavits herein and the exhibits as well as submissions and authorities of both the applicants and the respondents.

The Applicants' Arguments

15 7. Mr. Saul Woolfson, of counsel, argued on behalf of the applicants that the negative credibility findings made in respect of them were incorrect and unfair and irrational. He argued that the Tribunal Member came to negative determinations because he failed to properly or adequately consider the body of documentation submitted by the applicants in support of their claim. Instead, he allegedly cherry picked a number of documents that supported his conclusions to the absolute exclusion of other relevant documentation.

16 8. Furthermore, Mr. Woolfson argued that everything that has a bearing on credibility must be considered in credibility determinations. Drawing on the decision of Cooke J. in I.R. v. RAT [2009] IEHC 353 (Unreported, High Court, 24 ^th July, 2009), he stated that when documents that had a bearing on credibility are rejected by a decision maker, he is obliged to "set out on a rational and cogent basis the reasons for rejection of such documentation".

17 9. Counsel also argued that the Tribunal Member incorrectly relied on demeanour in circumstances where he failed to outline what it was about the first named applicants that caused him to view her demeanour in a negative light and this reliance on demeanour was further compounded by the delay in determining the appeal.

18 10. The applicants argue that they were not obliged to seek assistance from the State as the State was responsible for their persecution.

19 11. The applicant further asserted that the Tribunal was incorrect to rely upon one report to the exclusion of a fair and balanced assessment of all available country of origin information. The applicants asserted that the UK Home Office Guidance Note was unreliable as it was a policy document of a foreign government.

20 12. The applicants then argued that the Tribunal Member completely failed to consider or assess the minor applicants' applications that were independent and distinct from their parents.

The Respondent's Arguments

21 13. Mr. Anthony Moore, of counsel, on behalf of the respondents, argued that one credibility error (if there was one) on behalf of the Tribunal Member was not "sufficient to see the decision being quashed...