A.T.K v Refugee Appeals Tribunal

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Faherty
Judgment Date22 August 2016
Neutral Citation[2016] IEHC 529
Date22 August 2016
Docket Number[2012 No. 719 J.R.]
BETWEEN
A. T. K.
APPLICANT
AND
PAUL CHRISTOPHER SITTING AS THE REFUGEE APPEALS TRIBUNAL

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENTS

[2016] IEHC 529

[2012 No. 719 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Refusal to grant refugee status – Fear of persecution – Employment with an association – Lack of credibility- Statement of bank – Judicial review – Certiorari

Facts: The applicant, by way of the present judicial review application, sought an order of certiorari for quashing the decision of the first named respondent. The applicant claimed that he feared persecution at the hands of the Taliban in the country of origin. The applicant contended that the reasoning given by the first named respondent to the effect that the bank document was forged and that the applicant was not credible was unfair. The first named respondent contended that the evidence of the applicant to prove employment with a named employer lacked credibility. The respondent further contended that the applicant failed to produce other essential documentary evidence. The issue for consideration was whether the first named respondent had made lawful credibility findings.

Ms. Justice Faherty denied the relief sought by the applicant. The Court, in line with the decision in I.R. v. Minister for Justice [2009] IEHC 353, held that on judicial review, the Court only had jurisdiction to ensure reasonableness of the process to determine the credibility. The Court held that when the basis upon which the applicant grounded his fear of persecution, which was the association with a named employer, could not be accepted then the applicant could not have fear of persecution. The Court observed that the bank's statements on which the applicant relied to prove employment contradicted the applicant's version. The Court found that neither the national identity card nor the Taliban letters were produced before the Court. The Court held that the first named respondent was entitled to assess the probative value of the documents on the findings made. The Court held that minute mistakes in the findings of the credibility were not so related to the applicant's core claim so as to vitiate the whole decision of the first named respondent.

JUDGMENT of Ms. Justice Faherty delivered on the 22nd day of August, 2016
1

This is a telescoped hearing, in which an application is made for an order of certiorari quashing the decision of the first named respondent dated 15th June, 2012.

Extension of Time
2

A short extension of time was required for the purposes of the within proceedings which the court was satisfied to grant.

Background and Procedural History
3

The applicant claims to be an Afghani national. He claims to have worked for a named company in Afghanistan as a specialist driver which involved shift work of twenty seven days per month transporting mine clearing equipment to US army camps. Before commencing work for this company he was a taxi driver in Afghanistan. His friend, a fellow taxi driver, informed him of an opening within the named employer for which he duly applied and was recruited. According to the applicant, he was employed for approximately ten months with this employer. A number of months after he was recruited he received the first of three threatening letters from the Taliban telling him to leave his job and accusing him of being a spy for the Americans. The applicant did not take the first of these letters seriously and continued to work without worry. Some ten days after the first letter, the second letter arrived. The applicant saw it after he returned home from his work shift. The day after, the third letter from the Taliban arrived. That night his family home was attacked by the Taliban. Shots were fired at the gate of the house; the applicant heard one burst of shots, followed by four or five other bursts. At the time he was upstairs in his home. He escaped by running over the back wall of his house and ran to his maternal aunt's house approximately 30 minutes away where he spent the night. The following morning, his maternal uncle rang him and advised him to leave. The applicant met with a trafficker by arrangement. They left on 6th September, 2011 and spent three to four days travelling through the mountains to Iran. Approximately thirty other people were being trafficked along with the applicant. The applicant spent twenty days in Iran. From there he travelled to Turkey in a van, with the driver's knowledge. He spent 25 days in Istanbul before travelling to France in a lorry. This driver was also aware of his presence. The journey took three days. He then bordered another lorry in France unbeknownst to the driver and spent 25 hours in this lorry. He disembarked in Dublin and took a taxi to O'Connell Street. The applicant applied for asylum on 9th November, 2011. An asylum questionnaire was completed and he underwent a s. 11 interview on 1st December, 2011. The Refugee Applications Commissioner denied the applicant refugee status in a decision dated 16th February, 2012. The rejection of the claim was largely on credibility grounds. Following an appeal to the Refugee Appeals Tribunal, in a decision dated 28th June, 2012 the Tribunal affirmed the Commissioner's recommendation.

The Tribunal's decision
4

The applicant's claim for protection was rejected by the Tribunal on credibility grounds. In the s. 6 analysis of the applicant's claim the credibility findings are set out as follows:

'The principal element of this claim for asylum was that the appellant feared that the Taliban would "persecute" him for allegedly working with a firm .....who supplied the NATO forces with mine-clearing capabilities. The Tribunal is satisfied that the claim made by the appellant to the effect that he had been employed by [the named employer] is so fundamentally lacking in credibility as not to be the case in fact. Accordingly and as he had contended that the only reason he faced persecution was on account of his purported employment by that company, that contention must also be found, logically, not to be the objective reality.

The appellant presented several documents in support of his claim to have been employed by [the named employer] as a specialist driver. Although superficially those documents would not appear to engender much suspicion, it became glaringly evident that the appellant, although claiming to be intrinsically linked to them, was not and when questioned on them, his story dramatically fell apart.

To take on as an example: an extract of his bank account statement, which he presented to the Tribunal on the day of the hearing. This extract comprises entries (lodgements and withdrawals) between the period 1st January, 2010 and 15th April, 2012. Quite clearly, there are deposits from [the employer] marked on it representing monthly salary lodgements. These vary from month to month but represent an average salary of US$514.72 a month between September, 2010 and April, 2011. There are also withdrawals made to the holder of the account, as the appellant alleges; himself. However, there were other significant withdrawals made to other persons such as [MT], [B] and [MR]. When the appellant was asked by the Tribunal who [MT]was, why his name appeared on the appellant's account statement, the appellant replied that he was "an employee of......in the finance department" who was responsible for paying the appellant's salary and that the reason his named appeared on the appellant's account was due to the way [the employer] structured salary payments to its employees, such as the appellant which consisted of paying the appellant's salary not directly to his own account but instead firstly into the account of [MT] in the finance department who would then transfer the salary out of his account into the appellant's account. When the appellant was then asked who [A Q] was and why his name similarly appeared on the appellant's statement he replied that [A Q] was 'the zone manager of [the employer]' and the reason his named appeared on the appellant's account was for the same reason as [MT's] name appeared i.e. that [the employer] first paid the appellant's salary into [MT's] account and that [MT] then transferred those funds to the appellant's account as his salary. Similarly, the appellant explained that [B] was his then current supervisor ... (who had at that stage (7/12/2010) replaced his previous supervisor) who was also responsible for using his own account to transfer the appellant's salary ... into the appellant's account.

Quite apart from the inherent implausibility of such a scenario, the relevant entries in the appellant's account indicate that deposits were not received from these persons as salary, as contended for by the appellant, but that withdrawals were made from the appellant's account to these persons. The appellant has been hoisted by the petard of his own 'mock up' documents and it has become evident that the relationship with [the employer] contended for is fictional. In those circumstances, the Tribunal affords the other documents, such as identity cards, 'taliban letters' and such like, no weight.'

Having concluded that the finding with regard to the bank statement/bank account was sufficient to dispose of the applicant's appeal, the decision-maker went on to make a number of other findings:

'

• The appellant claimed that his monthly salary was $700 per month. However, it is clear from the document purporting to be his bank account statement that his purported monthly salary averaged $514.72 and never exceeded $614.33 per month.

• The appellant contended at Q 75 of the s. 11 interview that he was unaware as to whether any of his family was harmed in the alleged Taliban attack on his home. Yet, he told the Tribunal that he has been in telephone contact with his uncle since leaving Afghanistan. The appellant...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT