W (B) v Refugee Appeals Tribunal (O'Brien) and Others
| Jurisdiction | Ireland |
| Judge | MS. JUSTICE M. H. CLARK, |
| Judgment Date | 03 February 2010 |
| Neutral Citation | [2010] IEHC 145 |
| Court | High Court |
| Date | 03 February 2010 |
[2010] IEHC 145
THE HIGH COURT
BETWEEN
AND
REFUGEE ACT 1996 S16(8)
IMMIGRATION ACT 1999 S11(1)
REFUGEE ACT 1996 S11(6)
N (M) v REFUGEE APPEALS TRIBUNAL (MCHUGH) & ORS UNREP COOKE 1.7.2009 2009/41/10348 2009 IEHC 301
OKEKE v MIN FOR JUSTICE & ORS UNREP PEART 17.2.2006 2006/46/9892 2006 IEHC 46
S (O) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP HEDIGAN 4.11.2008 2008/57/11948 2008 IEHC 342
Y (IA) v REFUGEE APPEALS TRIBUNAL & ORS UNREP CLARKE 18.3.2009 2009 IEHC 127
A (C) v REFUGEE APPLICATIONS CMSR & ORS UNREP BIRMINGHAM 2.7.2008 2008/1/1 2008 IEHC 261
REFUGEE ACT 1996 S13
IMMIGRATION
Asylum
Credibility - Authenticity of identity document - Finding that identity document forgery - Duty of tribunal member to disclose to applicant nature and source of document relied upon in decision making process - Whether tribunal member in breach of statutory duty to disclose nature and source of knowledge regarding identity document - Refugee Act 1996 (No 17) s 16, - N(M) v Refugee Appeals Tribunal [2009] IEHC 301 (Unrep, Cooke J, 1/7/2009), Okeke v MJELR [2006] IEHC 46 (Unrep, Peart J, 17/2/2006), S(O) v Refugee Appeals Tribunal [2008] IEHC 342 (Unrep, Hedigan J, 4/11/2008), A(C) v Refugee Appeals Tribunal [2008] IEHC 261 (Unrep, Birmingham J, 2/7/2008) and Y(IA) v Refugee Appeals Tribunal [2009] IEHC 127 (Unrep, Clark J, 18/3/2009) applied - Reliefs refused (2008/77JR - Clark J - 3/2/2010) [2010] IEHC 145
W (B) v Refugee Appeals Tribunal
This is the substantive application for judicial review of the decision of the Refugee Appeals Tribunal (RAT), dated the 11 th January, 2008, confirming the decision of the Refugee Applications Commissioner to recommend that the applicant should not be declared a refugee. By order dated the 23 rd June, 2009 Cooke J. granted leave to the applicant to apply for judicial review of the RAT decision on the following ground:
"The Tribunal Member failed to act in compliance with s. 16(8) of the Refugee Act 1996 and acted in breach of the applicant's right to fair procedures in basing the contested decision on information which was not disclosed to the applicant, namely:"
(1) The genuine Iranian identity card used by her as a comparator in finding that the applicant's identity card was false;
(2) The documentation supporting the finding that the Sardasht area had been jolted by earthquakes;
(3) The documentary or other source of the information as to the correct name of the waterfall in the vicinity of Sardasht; and
(4) The documentary or other source of the information that the applicant's dialect or language was not peculiar to Iran but consistent with his having another origin or nationality.
The substantive hearing took place at the King's Inns in Court No. 1 on the 9 th December, 2009. Mr. Michael Lynn B.L. appeared for the applicant and Ms. Sinéad McGrath B.L. appeared for the respondents. Although leave was granted on four grounds there really was one net issue for determination being the extent of the Tribunal Member's duty, pursuant to s. 16(8) of the Refugee Act 1996, to disclose to the applicant the nature and source of a document that she relied upon. Section 16(8), as amended by s. 11(1) of the Immigration Act 1999, provides:
"The Tribunal shall furnish the applicant concerned and his or her solicitor (if known) and the High Commissioner whenever so requested by him or her with copies of any reports, observations or representations in writing or any other document, furnished to the Tribunal by the Commissioner copies of which have not been previously furnished to the applicant or, as the case may be, the High Commissioner pursuant to section 11(6) and an indication in writing of the nature and source of any other information relating to the appeal which has come to the notice of the Tribunal in the course of an appeal under this section."
The document in this case was a valid Iranian identity document, being one of many previously seen by the Tribunal Member.
The applicant claims to be an Iranian Kurd from the Sardasht region of South West Iran close to the border with Iraq. He suffered the loss of an arm and some fingers of his remaining hand as a child when he says his home was hit during a bombing raid in the Iran-Iraq war in 1985 which also killed both his parents. He and his brother were then cared for by an uncle who lived in an adjacent house. The applicant first claimed to have had no formal education and said that when old enough, he worked in the family apple orchards. He acquired an ability to speak several foreign languages from listening to the radio. He later said that he had 9 years of formal education and remained at school until he was 22 years old. In 2004 he met Dr. K an intellectual who was a member of the Worker-Communist party of Iran (Hekmatist). At the end of 2004, he became a supporter of the Hekmatist party in Iran and began reading seminal communist literature in order to understand Dr. K's writings. In October, 2005 he took part in a Hekmatist demonstration. This was the first time he had ever engaged in such activity. The demonstration took place in Sardasht, five minutes by car from his village. There were approximately 50 other people involved in the demonstration and they were protesting against the government's nuclear policies. During this demonstration the applicant burned the Iranian flag and also a picture of the Iraninan President. His actions were observed by state security agents who then moved in to break up the demonstration. The applicant and Dr. K escaped by walking away and hiding overnight. Shortly afterwards state security agents searched his house and burned it down. His relations told him that the agents found books by Marx and Lenin in his home and other writings relating to the Hekmatist party. His brother and uncle were arrested and he fears that he himself will be arrested and sentenced to death if he is returned to Iran.
The applicant says another uncle made the arrangements for him to travel and he arrived in Ireland on the 15 th November, 2005 by lorry. He then applied for asylum claiming to fear persecution by reason of his political opinion and his membership of a particular social group. Among other documents, he submitted a national identity card in support of his application which he said had been retrieved from his house by his aunt after the fire.
His application failed before the Refugee Applications Commissioner. In essence, it was found that the account he presented was implausible. Although questioned about the various documents and photographs which he furnished, the Commissioner took no issue with the national identity card which he had submitted.
The Refugee Legal Service (RLS) lodged a Notice of Appeal to the RAT on behalf of the applicant. The oral hearing took place on the 5 th July, 2006 and the attendance note of the hearing kept by an agent of the RLS is before the Court. During the course of the hearing the Tribunal Member asked the applicant several questions relating to geographic features and in particular whether he could name a famous waterfall in the area of Sardasht and also about recent natural events. The note records that during the course of his evidence, the Tribunal Member asked the applicant why the ID card he had submitted was damaged and why it was tampered with. She referred to a hole made by a biro over the date. The applicant attributed this damage to the fire at his home. The Tribunal Member then said she had "seen many documents like this - this appears to be a fake." During further questioning relating to how the applicant obtained the ID card the Tribunal Member asked for details as to when the card was issued and whether it was his first card or a re-issue. The applicant explained that it was a four year card and was a re-issue of his old one which was given in exchange for the current one.
At the end of the hearing the applicant's representative asked that the ID card be re-submitted for checking. It is recorded that the Tribunal Member said that "the ID doesn't look genuine to me-photo does not look like applicant. Applicant could be from Iran or Turkey." The Tribunal Member was asked to delay in preparing her decision to allow the applicant to submit a medical report from SPIRASI.
The attendance note demonstrates that immediately following the hearing the authenticity of the ID card was foremost in the mind of the applicant's legal advisors. The plan as recorded appears to have been to request the Tribunal administration for authority to look at the applicant's ID card and that further submissions would be made. As previously mentioned, the ID card had been lodged with the Commissioner and has remained in the custody of the Tribunal since the appeal.
By letter dated the 31 st August, 2006 the RLS furnished five documents to the Tribunal Member being a SPIRASI report, on which nothing turns as the injuries outlined are not relevant to this claim, photographs of the applicant and the Official National Iranian ID of the applicant's brother which, it is claimed, was posted to the applicant from Iran in July, 2006. Thereafter, protracted correspondence was exchanged between the Tribunal and the RLS related specifically to the applicant's ID card and the duty on the Tribunal Member to conform with s. 16(8) of the Refugee Act 1996 by disclosing all documentary material that had come to her attention prior to the appeal hearing. In particular, the RLS stated in bold...
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