Zhuchkova v Minister for Justice and Refugee Appeals Tribunal

JurisdictionIreland
JudgeMR. JUSTICE CLARKE
Judgment Date26 November 2004
Neutral Citation[2004] IEHC 414
Docket NumberCase No. 669JR/2003
CourtHigh Court
Date26 November 2004

[2004] IEHC 414

THE HIGH COURT

Case No. 669JR/2003
ZHUCHKOVA v. MINISTER FOR JUSTICE & REFUGEE APPEALS TRIBUNAL
DUBLIN
MR. AND MRS ZHUCHKOVA
Applicants

and

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL
Respondents
Abstract:

Immigration - Asylum law - Judicial review - Leave - Tribunal refusing appeals from recommendations of Refugee Applications Commissioner - Reasons advanced for refusal to allow appeals - Rationality - Credibility findings made by Tribunal - Basis for such findings - Whether rational - Country of origin information - Approach in reviewing assessment of country of origin information by person with primary competence for so doing - Whether reason for respondent’s decision logically related to discretion being exercised.

the applicants applied for leave to judicially review decisions of the second respondent whereby he refused their appeal against a recommendation of the Refugee Applications Commissioner that they were not refugees. The basis of the applicants’ applications for asylum were that they would be likely to be subjected to anti-Semitism if returned to Russia. The second respondent gave, as grounds for refusing the appeals, his opinion that the applicants lacked credibility and that the country of origin information in relation to Russia did not support an objective view of the applicant’s complaints as being well founded.

Held by Clarke J in granting leave to set aside the decision that a finding of lack of credibility had to based on a rational analysis which explained why, in the view of the deciding officer, the truth had not been told. There was over interpretation by the second respondent in respect of the country of origin information which did not bear out the full breadth of the finding which it made in the case.

Quaere: Whether tests for grant of judicial review in O’Keeffe v. An Bord Pleanála apply to human rights cases.

Reporter: L.O’S.

1

APPROVED JUDGMENT DELIVERED BY MR. JUSTICE CLARKE ON 26TH NOVEMBER 2004

2

I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named matter.

APPEARANCES

For the Applicant:

Mr. Rory Mulcahy B.L.

Instructed by:

Conor 0. Briain Solicitors

For the Respondent:

Ms. E. Farrell B.L.

Instructed by:

Chief State Solicitor

APPEARANCES
3

COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

4

MR. JUSTICE CLARKE: This is an application for leave to issue judicial review proceedings which seek primarily an order of certiorari in respect of two decisions of the first named respondent, both of which were delivered on 28th September 2003.

5

The relevant facts appear to me to be the following. The applicants are a Russian couple who are married and come from the Kaliningrad region. It was accepted in the refugee process that the second named applicant is Jewish. The applicants and, in particular, the second named applicant, have alleged that they have suffered discrimination and harassment on account of the second named applicant's religion.

6

During the course of their respective applications for asylum a number of incidents of Antisemitism have been recounted, to which they allege they were subjected during their time in Russia. These incidents included the hospitalisation of the second named applicant together with arrests and intimidation by the local authorities. The second named applicant eventually left Russia in the month of August 2001. After that time it is alleged by the first named applicant that she, in turn, became the focus of intimidatory tactics. She claims that she was arrested a number of times. On one occasion she states that she feared being raped in a jail cell. She in turn left Russia with their son in or about July 2002 and joined the second named applicant in this State.

7

Both applicants applied for asylum in the State and went through what might be termed "the usual asylum process", which included attending at interviews and the filling out of questionnaires. The first applicant was interviewed in March 2002. She has averred in affidavits filed in these proceedings that the interview focussed entirely on the events in her life following her husband's departure from Russia. The first applicant sent a letter subsequent to her interview, which was sent prior to any decision being made, in which she stated that her interview was not completely recorded in detail by the officer conducting same and furnished further details.

8

During the course of her appeal hearing, she gave evidence in relation to a number of incidents which had occurred, she alleges, to both herself and her husband while still in Russia. These incidents, or at least in some cases the full details of these incidents, had not been given either in the questionnaire or in the interviews. She was challenged at the hearing in respect of these matters, and indicated that in her view the interviewer had told her that such additional information was relevant only to her husband's case.

9

In relation to the second named applicant, his interview took place over two days with two different interviewers. The interviews lasted for some significant period of time, and it has been suggested that it is at least arguable, for the purposes of these proceedings, that the notes cannot represent the entirety of the matters addressed at the interviews, having regard to the proportionality between the length of time which the interview process took and the extent of the notes. During the course of the second named applicant's second interview, he is recorded as having described the first interview as: "Very dry. There was no emotion. I think he recorded it in a very dry way. He did not allow me to talk."

10

His application was refused. He appealed. When the appeal was heard it lasted some three days before the first named respondent. During the course of that hearing, like in the case of the first named applicant, he gave evidence of additional incidents which he claims occurred and which he alleges amount to persecution which he had suffered in Russia as a result of his religion. He again was challenged as to why he had not given evidence in relation to those incidents previously, and his response was that it was because he was being hurried along and that the interviewer would not let him talk.

11

The first named respondent issued written decisions in relation to both of the appeals, and these proceedings are brought as a challenge to those decisions. It seems clear that the applicants are correct when they state that the decision of the first named respondent to refuse both applicants” appeals is based on two common factors. The first named respondent did not accept in either case the applicants explanation as to why they had given more detailed evidence at their appeal than had been given at their interviews or in their respective submissions. On that basis the first named respondent went on to conclude that in both cases their evidence generally was not credible and that on the basis that their credibility had been undermined, he did not therefore accept their evidence in relation to past persecution.

12

It might also be added that, in my view, Miss Farrell is correct in her analysis of the determinations in suggesting that they amount in reality to two separate but connected findings. Firstly, there is a rejection of the explanation given for the evidence tendered before the first named respondent not having been previously given in either questionnaire or interview form; and then there is a second finding, which perhaps might be treated as an inference from that first finding, to the effect that by reason of the first finding the general credibility of the applicants had, in the view of the first named respondent, been undermined to the extent that he felt entitled to reject in substance the entirety of their evidence. Secondly, the first named respondent went on to consider the position in respect of country of origin information, and took the view that on the evidence before him he did not accept that the applicants were without state protection in Russia. He did not accept that there is any systemic persecution by the state of Jews in Russia and, perhaps most crucially, he found that he did not accept that there is any persecution of Jews in Russia by non-state agents.

13

The applicants”case is that there are legal flaws in respect of both of the above findings. It is submitted on behalf of the applicant that the first named respondent is not entitled to dismiss the entirety of the applicant's evidence on the basis of an adverse finding on credibility with respect to one aspect of their evidence, i.e. their explanation as to why accounts given in evidence had not been previously tendered. It is said that this is particularly so where that aspect of the matter does not relate directly to the substance of the applicant's application. Furthermore, it is submitted on behalf of both applicants that the finding that their credibility had been undermined is based on errors of both fact and law is in breach of the principles of natural and constitutional justice. They therefore submit that, as a consequence of such a finding, they have been afforded no substantive analysis of their appeals.

14

Finally, they both submit that the first named respondent's analysis of the country of origin information is wholly inadequate and that therefore the conclusions drawn by the first named respondent are not supported by either the objective or subjective evidence provided. They finally submit that the first named respondent's failure to adequately assess the country...

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