Judgment Title: Barua -v- Minister for Justice and Equality
Neutral Citation: 2012 IEHC 456
High Court Record Number: 2011 737 JR
Date of Delivery: 09/11/2012
Court: High Court
Composition of Court:
Judgment by: Mac Eochaidh J.
Status of Judgment: Approved
Neutral Citation 2012 [IEHC] 456
THE HIGH COURT
[2011 No. 737 J.R.]
THE MINISTER FOR JUSTICE AND EQUALITY
JUDGMENT of Mr. Justice Mac Eochaidh delivered the 9th day of November 2012
1. By order of the Court (Clark J.) of the 8th February, 2012, leave was granted to the applicant to apply for judicial review of the decisions of the respondent of the 20th June, 2011 refusing him subsidiary protection and leave to remain, on the following ground:
The Respondent failed to address the documents already on the Applicant's file which, the Applicant claims are capable of corroborating his claims for Subsidiary Protection and Humanitarian Leave to Remain, albeit in the circumstances where the decision of the Refugee Appeals Tribunal with respect to the Applicant's claim for refugee status was not challenged."
2. The applicant, who is a Buddhist and a national of Bangladesh, (where Buddhists are a minority), arrived in Ireland on the 1st February, 2010, and applied for asylum the following day.
3. In a submission to the Refugee Applications Commissioner, the applicant gave a detailed account of his life in a village in Bangladesh. He described how he came to take over his father's pharmacy and how he obtained basic medical training. He tells how he joined a local organisation promoting the interests of women and children in the areas of education and healthcare (the organisation is called NSKA). The applicant described to the Commissioner his involvement with the organisation and the circumstances in which he became its Vice President. He also described tensions connected with the activities of NSKA and how objection was taken to the organisation by certain Islamists. An influential man of Islamic faith called Mojaffor Ahmed is said to have insinuated himself in the organisation seeking an Islamic influence on its activities. It is said that the Buddhist applicant sought to terminate this influence and this resulted in a firearm being planted in the NSKA offices which attracted police attention and a prosecution of ten to twelve persons from NSKA. The Commissioner was informed that there was no point in making a complaint to the police. The applicant said that his family home was attacked and his sisters were afraid to leave the house. He also stated that his tormentors were searching for him, saying they wished to kill him. The applicant says that on the 4th November, 2009, as he was travelling to his parents' house, Mojaffor Ahmed and his gang attacked him, but he escaped. That evening, the same gang visited his parents' house and beat his parents and sought to capture his sisters, which action was prevented by the intervention of neighbours. In view of these events, the applicant says he fled Bangladesh.
4. Some eleven documents or categories of documents and photographs were submitted to the Commissioner in support of his application. These materials are identified by the compiler of a report (the s. 13 report) as follows:
(ii) Trade Licence;
(iii) List of Committee Members of Ramal Child and Youth Organisation
(iv) Copy of Birth Certificate
(vi) DHL envelope;
(vii) A document related to Buddhist faith;
(viii) False case made to police about the applicant;
(ix) Warrant of Arrest of applicant;
(x) Charge Sheet in relation to false allegation against the applicant;
(xi) Police report.
6. The record of the interview at the Office of the Refugee Applications Commissioner has been exhibited in these proceedings and was available to the Refugee Appeals Tribunal. At no stage was the applicant ever challenged as to the authenticity of the documents he had submitted in support of his claim. He was never accused of forging documents or of relying on fraudulent documents.
7. In the decision of the Refugee Appeals Tribunal, the author sets out the provisions of s. 11(b) of the Refugee Act 1996, which addresses the matters to be evaluated for the purposes of assessing credibility. Section 11(b)(e) provides that "where the applicant has forged, destroyed or disposed of any identity or other documents relevant to his or her application, whether he or she has a reasonable explanation for so doing", is relevant to credibility.
8. The author of the Tribunal report also sets out Regulation 5(1)(b) of the European Communities (Eligibility for Protection) Regulations 2006, which provides, "that the relevant statements and documentation presented by the protection applicant ... shall be taken into account".
9. In the section of the Tribunal report entitled 'Analysis of the Applicant's Claim', the author identifies credibility issues. In the first instance, the author says that the applicant's explanation for how he could have escaped the attack he endured on the 4th November, 2009, is neither plausible nor credible and that the tale undermines his credibility.
10. The second finding on credibility related to the question of why the terrorists did not seek him out at his cousin's house if they knew he lived there. The author of the report says as follows:
A. No, they were suspicious. They did not know I was there, but they knew where my cousin lived."
Use of Documents
The presenting officer told the applicant 'you submitted several documents and you gave no document with a photo ID. That claims he has no document with his photo on it'." [sic]
12. In a de-contextualized part of the report, the number 35 and the words "Forged and Fraudulently Obtained Official Documents - Bangladesh, 11 August 2009" appear. The number 35 is not in any cognisable sequence. There then appear some numbered paragraphs 35.01, 35.02: and 35.03. These paragraphs indicate a problem with forged and fraudulently obtained documents submitted by Bangladeshi nationals. Unhelpfully, the author, having raised the issue of forged and fraudulently obtained documents then makes no finding or comment thereon. Importantly, the author does not specify a complaint in respect of false or fraudulently obtained documents.
13. Following the decision of the Refugee Appeals Tribunal, the deciding officer in the Ministerial Decisions Unit (Asylum) wrote to the applicant to communicate the refusal to grant refugee status. A number of options were presented. Option three informed the applicant that he could seek subsidiary protection and also leave to remain in Ireland under s. 3 of the Immigration Act 1999. Significantly, paragraph B of this portion of the letter states:
The Subsidiary Protection Decision
16. The decision maker's report seeks to follow the structure suggested by Regulation 5 of the Protection Regulations. Regulation 5(1)(a) requires that the decision maker take into account "all relevant facts as they relate to the country of origin". In accordance with this requirement, the decision maker duly considered country of origin information.
17. Adhering to the scheme of Regulation 5, the decision maker addresses the Regulation 5(1)(b) requirement that "the relevant statements and documentation presented by the protection applicant...shall be taken into account". Addressing this requirement, the decision maker says, "(n)umerous documents have been submitted. All documents submitted and referred to have been read and given consideration".
18. Regulation 5(1)(c) requires the decision maker to take into account "(t)he individual position and personal circumstances of the protection applicant so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm". The decision maker's attempt to fulfil the statutory duty under Regulation 5(1)(c) concludes in the following terms:
19. Section (vi) of the decision maker's report asks whether the applicant "has already been subject to serious harm (as defined in Regulation 2(1) and Regulation 5(2))?". The author sets out an extremely brief precís of the harm suffered by the applicant in the past and concludes "as serious harm can only be carried out by 'actors of serious harm' within the meaning of Regulation 2(1), I do not find any evidence that Suman Barua has suffered treatment in Bangladesh which would come within the definition of 'serious harm' as defined in Regulation 2(1)". It is difficult to comprehend why the identified perpetrators of the problems said to have been suffered by the applicant would not come within the category of persons referred to in the Regulations as "actors of persecution or serious harm". Those categories of actors are said to include various groups and it does not appear to me that the Regulation excludes the possibility of an actor of harm being a person other than a member of one of the categories. The alleged actor of harm in this case was an Islamic activist with Taliban leanings and with influence in the applicant's village and region. At the level of principle, I see no reason why such a person could not be regarded as an actor of harm within the meaning of the Protection Regulations or the Qualification Directive. However I make no findings on this issue as it was not comprised in the proceedings.
20. Section 8 of the Subsidiary Protection decision is entitled 'applicant's credibility and whether benefit of doubt should be given (Reg. 5(3))'. The author then proceeds to repeat some of the findings of the Refugee Appeals Tribunal concerning the lack of credibility of the applicant. It is not at all clear to me in what way such assessment is related to Regulation 5(3) which is cast as follows:
21. The matters in respect of which findings of lack of credibility were made seem to me to have been marginal. It will be recalled that the two issues which appeared to trouble the decision makers most were how it was that the applicant could have escaped the clutches of five persons who attacked him. To my mind, the possibility of escape was not so improbable or implausible as to undermine credibility. The second issue which caused concern was how it was that the applicant's enemies did not find him at his cousin's house, given the applicant's apparent assertion that his enemies knew that he lived with his cousin and where his cousin lived. As I have previously indicated, it is not at all apparent to me that the applicant ever said that or meant to say that, and even if he did, the fact that his enemies did not seek him out at his cousin's home could have many plausible explanations and does not necessarily mean that he has invented this fact, or all of the surrounding facts. My purpose in expressing my own views on the credibility findings is not to disagree with them or to say that I would have reached a different conclusion. It is trite to say that the court must not engage in such an exercise. My purpose is to see if the findings on lack of credibility were strong enough to permit the decision maker to give no weight whatsoever to apparently corroborative documentation.
22. Given that the findings of lack of credibility - which I am not invited to disturb - are marginal, it seems to me that there was a duty upon the respondent to weigh those credibility issues with the corroborative documentary evidence and to balance the two. If that documentary evidence was dismissed, it should have been dismissed for a reason stated.
Obligation to consider documentation
24. The applicant argues that the failure to consider relevant documents submitted constitutes a failure to observe fair procedures and that although entitled to disregard documents, the decision maker must give reasons.
25. The respondent argues that the subsidiary protection decision maker is entitled to adopt the findings of the Refugee Appeals Tribunal and as the Tribunal's decision contained country of origin information which refers to fraudulent documents, this can be understood as meaning that the Tribunal believed that the applicant's documents are forged and the subsidiary protection decision maker is following this view. The respondent points out that that the findings of the Tribunal were not challenged in the subsidiary protection application nor by judicial review in the High Court.
26. I find that if the subsidiary protection decision maker decided that the documentation at issue was tainted then she should have said so. Merely stating that, "[a]ll documents submitted and referred to have been read and given consideration" or quoting passages from country of origin information relating to forged documents is not enough to communicate such a view.
27. As noted above, if documents which are prima facie corroborative of an applicant's account of relevant events are to be discounted, dismissed or rejected, or somehow found not to have corroborative effect, it is incumbent on the decision maker to explain why. There maybe overwhelming reasons, unrelated to the documentation, to reject the credibility of an applicant but if this is so, then the decision maker should say that and should clearly state the basis on which documentation which seemingly supports the applicant's story is discounted , rejected or dismissed. An objective outsider, such as this court, is left guessing why the applicant's documents submitted in support of the claim did not appear to have that effect. The references in the impugned decision to the prevalence of forged and fraudulently obtained documents in Bangladesh leads one to conclude that this is what the decision makers actually believed of some or maybe all of the applicant's supporting papers. That is a matter which ought to have been put to the applicant, or at the very least, an express finding in that regard should have been made and the basis of that finding should have been stated. Documents which prima facie support the applicant's story deserve comment and this is especially so when marginal credibility findings are relied upon by a decision maker to dismiss an applicant's story and refuse protection. (I note that the Tribunal stated that the applicant was fleeing prosecution, not persecution. Such a finding implies that the Tribunal accepted the authenticity of certain documents relating to activities of the courts and the police, but one is left guessing as to what the references to forgeries were about).
28. Statutory rules and case law direct the manner in which documents must be treated: see Regulation 5 (1) (b) of the European Communities (Eligibility for Protection) Regulations 2006. As for case law, in IR v. Minister for Justice, Equality and Law Reform  IEHC 353, paragraph 11, Cooke J lays out ten principles for the treatment of evidence which goes to credibility. The ninth principle reads as follows:
30. There is an obligation to give a reasonable explanation for an administrative decision. Murray C.J. in Meadows, v. Minister for Justice, Equality and Law Reform  IESC 3 said:
"An administrative decision affecting the rights and obligations of persons should at least disclose the essential rationale on foot of which the decision is taken. That rationale should be patent from the terms of the decision or capable of being inferred from its terms and its context. Unless that is so then the constitutional right of access to the Courts to have the legality of an administrative decision judicially reviewed could be rendered either pointless or so circumscribed as to be unacceptably ineffective."
31. In essence I cannot discern from the decision why the applicant's corroborative documents were seemingly dismissed, discounted or rejected. The decision in suit does not meet the standard described by the learned Chief Justice in Meadows and must therfore be quashed.
32. I am fortified in my conclusion in the present case by the approach adopted by the High Court in A.M.N v. Refugee Appeals Tribunal  IEHC 393. McDermott J., condemning the manner in which a medical report had been treated said:
Duty of applicant to bring dispute to the attention of the decision maker
34. Counsel for the applicant argued that to oblige an applicant to point out every deficiency in a Refugee Appeals Tribunal decision in a subsequent subsidiary protection application would make it an appeal from the Tribunal decision and furthermore it is the duty of the Minister to consider all of the material which is put before him.
35. The respondent relied upon the decision in H.M. v. Minister for Justice and Law Reform  IEHC 176, where Cross J stated at paragraph 54 that,
38. As I said earlier, the letter sent to the applicant informing him that his application for refugee status had been refused and telling him of the option to apply for subsidiary protection stated:
40. These internal contradictions in the rules create an unsatisfactory situation. The contradictions are more stark when one considers that only failed asylum seekers may seek subsidiary protection. (I understand that there are proposals before the Oireachtas for reform, mentioned recently by the Supreme Court (see para. 2.7 of the judgment of Clarke J. in Okunade v Minister for Justice Equality and Law Reform  IESC 49)). It seems unfair that applicants make applications for subsidiary protection in circumstances where they are told it is not an appeal from the asylum decision, yet findings in the that process may well determine the subsidiary protection application. It is also unfair to criticise applicants for failing on the second application to take issue with the asylum decision.
41. Rules of Court on third party procedure and provisions of the Civil Liability Acts 1961 (as amended) are designed to ensure that the same facts are not tried twice to avoid the possibility of different and conflicting results. The very opposite has been achieved in the Irish regime for international protection of persons claiming to be in fear of harm. Almost inevitably, the same facts will be tried twice. The applicant is told that it is a fresh application where all matters and documents will be considered. And the minister is for practical purposes prevented from reconsidering his earlier decision though he is directed to consider the second application fully.
42. I am unwilling in this case to count the frailties of this unsatisfactory situation against the applicant. I reject the case made for the respondent that the failure of the applicant to challenge the decision of the Tribunal or to criticise the Tribunal in the subsidiary application process acts as a quasi estoppel or has the effect of disbarring the applicant from relief.