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Cite as: [2002] IEHC 177

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THE HIGH COURT (JUDICIAL REVIEW)

Record No. 16JR/2002

Between

N. A.D.

Applicant

and-

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, and CON MURPHY (sitting as THE REFUGEE APPEALS TRIBUNAL) and THE REFUGEE APPLICATIONS COMMISSIONER

Respondents

JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON FRIDAY, THE 4TH DAY OF OCTOBER 2002

The Applicant is an Iraqi national whose date of birth is stated to be 11th March 1970. He is a Shia Muslim and a mechanical engineer by qualification and a businessman by occupation. He was a member of the Regroupment Party in Iraq. He arrived in the State on 29th October 1999, and completed the ASY1 form. On 3rd March 1999, he was interviewed by Mr. Tom Conroy, who reported on the interview on 18th March 1999. A recommendation was made by Mr. MacSuibhne on 24th August 1999, which was effectively confirmed on 30th September 1999 by a Ms. Walsh.

The Applicant arrived in Ireland by going from Iraq to Syria and from thence to Lebanon where he was illegally and without documents. There he joined the Zaher V as a stowaway with two other Iraqis, it would appear. He paid some person £1,000 for his passage. The Applicant went from Iraq to Syria and to Lebanon by car, stayed in Syria for three days and in Lebanon for a month. He was on the ship for a month and apparently called at Khalkis in Greece, but the immigration authorities would not allow him or the other two immigrants to disembark. In answer to Q.84, he said:

"If I go to Iraq Sadam Hussein would kill me. I have an uncle Salh Ali, he is President of Iraqi Communist Party and always police come to me to ask me where is my uncle. Police say I work with my uncle. My uncle left Iraq in 1967. The police ask me for money. Give me money or I will put you under arrest."

The Applicant's involvement, if it may be so described, in political activity was to fund a particular group to the extent of something in the order of £20,000 over a period. He, himself, is not affiliated to any political party, as he stated at his interview, but he is a member of a group of some twenty people who wish to bring about change in Iraq. When asked as to why he sought asylum (at the interview), he stated that everyone is against Sadam and that if he continued to live in Iraq his "wife would be in danger". He was also concerned about being identified. The matters of which he complained of appeared to have occurred between the months of March and December 1996. His business had involved him in working in imports and exports and he went to and fro in his activities for some considerable time to Jordan and elsewhere. He advised that after leaving his country of origin he did not know what happened to his business, though he had a number of persons working for him. His concern is that he crossed the border without documents and if discovered he would be considered as a spy and his life would be in constant danger.

If I single out the contribution made by Mr. Feargal MacSuibhne of 24th August 1999, it is not to say that the other contributions are not equally of importance. However, it does highlight a matter that became an issue during the course of the advocacy of the Applicant's claim. Mr. MacSuibhne observes as follows:

"1. According to country information, membership of the Communist Party in Iraq is a capital offence. If the Applicant feared persecution on these grounds he may well satisfy the Convention criteria. However, the relation who was involved in the party left Iraq before the Applicant was born (ie, in 1968/1969) and it cannot be accepted, therefore, that the Applicant would hold a well-founded fear in that regard. Furthermore, he had contact with officialdom (in approximately 1994 in connection with his business). If there was a risk of persecution he would certainly not have approached the authorities, or have met with co-operation.

2. It is common knowledge that political opposers of the regime in Iraq are dealt with harshly. Such treatment may well amount to persecution within the meaning of the Convention. This fact being so widely known, however, we must be alert to the possibility of any Iraqi Applicant making such a claim and it behoves every Applicant, therefore, to present a consistent and credible case. This Applicant has provided little or no information about the objectives or methods of operation of the organisation of which he was allegedly a benefactor. In fact, he could only state the name of one other member. It is not accepted that a person would make financial contributions to the extent the Applicant contends without having fairly comprehensive knowledge of the objectives, operations, etc, of the organisation.

3. For the reasons stated above and in the analysis, it is concluded that this Applicant has failed to demonstrate a well-founded fear of persecution on the grounds that his statements lack credibility. Accordingly, the conclusion drawn by Mr. Conroy is supported and it is recommended that the application be refused."

The Applicant was informed by letter of 4th October 1999 of the view taken at first instance in regard to his application. It is stated therein:

"Your application has been considered on the basis of the information you provided in support of it, both in writing and at interview, and it has been decided that your application is not such as to qualify you for refugee status in accordance with the definition contained in the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol and as defined in Section 2 of the Refugee Act 1996.

You have not established a well-founded fear for any Convention reason, and furthermore your account lacks credibility in many respects."

The first instance decision the Applicant appealed to the Refugee Appeals Tribunal and the formal documentation was supplemented by a letter of appeal of 15th February 2001. The appeal hearing went by way of oral hearing before the nominated member of the Tribunal, Mr. Murphy, who made a recommendation on 11th December 2001. The Applicant's case was that his application was based on a well-founded fear of persecution for reason of political opinion. Mr. Murphy expressed himself (inter alia) thus:

"I do not believe the Applicant's story either about an uncle of his having been involved at a high level in the Communist Party or a friend of his, Haida Saadoun, having founded a political party which the Applicant funded to the tune of twenty thousand dollars. The Applicant was a successful businessman in Iraq on his own admission and may have paid monies of both Government and non-Government interests. There is no objective verification of political involvement either by an uncle of the Applicant or the friend of the Applicant as named. on his own admission, the Applicant travelled freely between Iraq and Jordan over the years. It was open to him to have made the same journey again if he had so chosen, to escape from Iraq, but instead he maintains that he travelled on foot from Iraq to Syria.", (Which was not the response he made to Q.67 in the questionnaire), "no evidence was presented of any other people being involved in their group and party or of any adverse consequences being suffered by any other person because of involvement, with the exception, of course, of Haida Saadoun."

Clearly, therefore, there was a serious credibility problem as perceived by Mr. Murphy. In this regard, the Applicant relied specifically on the provisions of paragraph 83 of the UNHCR Handbook, which provides as follows:

"An Applicant claiming fear of persecution because of political opinion need not show that the authorities of his country of origin knew of his opinions before he left the country. He may have concealed his political opinion and never have suffered any discrimination or persecution. However, the mere fact of refusing to avail himself of the protection of his government, or a refusal to return, may disclose the Applicant's true state of mind and give rise to fear of persecution. In such circumstances, the test of a well founded fear would be based on an assessment of the consequences that an Applicant having certain political dispositions would have to face if he returned. This applies particularly to the so-called refugee 'sur place'."

In my judgment, paragraph 83 has no relevance if there is a credibility issue in point. This is a decision that is made within jurisdiction. It is a matter that the adjudicator is in a particularly advantageous position in dealing with. In this regard, I think it appropriate to refer to the judgment of the Supreme Court in Baby O and Anor -v- The Minister for Justice, Equality and Law Reform and Ors (6th June 2002, as delivered by Keane CJ, in the terms following:

"It is inevitable that a determination under procedures of this nature as to whether a person is genuinely in fear of persecution, if he/she returns to his/her country of nationality, will be based on the assessment by the interviewing officer of that person's credibility. That is what has been frequently referred to as the necessarily 'subjective' element in determining whether the fear of persecution genuinely exists. It is also clear that an interviewing officer in such circumstances must also have regard to what objective evidence is available to him as to the conditions in the country of origin which might give rise to a fear of persecution.

Unless it can be shown that there was some breach of fair procedures in the manner in which the interview was conducted and the assessment arrived at by the officer concerned or that, in accordance with the well-established principles laid down in The State (Keegan) -v- The Stardust Victims Compensation Tribunal [1986] IR 624, and O'Keeffe -v- An Bord Pleanala [1993] 1 IR 39, there is no evidence in which he could reasonably have arrived at the decision there will be no ground for an order of Certiorari in respect of the decision. In this case, it was entirely a matter for Mr. Leahy to assess the weight that should be given to the various matters to which I have referred and it could not be said that there were no grounds on which he could not have reasonably arrived at the decision that her application for refugee status was manifestly unfounded.

The same considerations are applicable to the further assessment of her case by Mr. Enda Hughes and the recommendation by the Appeals Authority."

The Applicant and his solicitor were notified by the Refugee Appeals Tribunal, by letter dated 28th December 2001, as to the outcome of the appeal, which was unfavourable so far as the Applicant was concerned. The Applicant issued these proceedings on 14th January 2002. The range of reliefs sought are Certiorari and a variety of declarations. Subsequent to the issuing of the proceedings, the Respondent Minister, by letter dated 23rd January 2002, indicated that he proposed making a Deportation Order in respect of the Applicant under the powers given to him under Section 3 of the Immigration Act 1999. The Minister had decided, in accordance with Section 17(1)(b) of the Refugee Act 1996 as amended, to refuse the Applicant a declaration as a refugee. That letter went on to point out the various alternatives open to the Applicant, including the right to make such applications as he might consider appropriate or be advised under Section 3(6) of the Act of 1999. I am unaware as to whether any such application was made or of the outcome of same. That section provides for leave to remain on humanitarian grounds and it may very well be that a person who would fail in their asylum application might, for reasons that were considered appropriate and relevant at the time of the making of a decision, under section 5 of the Refugee Act 1996 or under Section 3(6), might be permitted to remain in the State on terms or conditions within the Minister's discretion. The decision of the Minister, as conveyed in the letter of 23rd January 2002, is not in suit in these proceedings, but as it is derivative of the earlier determinations the Applicant sought to regard it as challenged inferentially. It is unfortunate that the proceedings were not before the Minister his servant or agent before the letter of 23rd January 2002 was signed and published. The Applicant's position was not thereby made because if successful in quashing the Tribunal decision the stated determination of 23rd January 2002 would be ineffective because of its relationship to the Tribunal decision.

It is noted that the case made before the Appeals Tribunal was that the Applicant's case was based on a well-founded fear of persecution for reasons of political opinion. Without the necessity of analysing in detail his involvement in political matters, it seems to me the views of Lord Clyde in Horvath -v- The Secretary of State for the Home Department [2000] 3 WLR 397 at 401 are apposite:

"For a fear to be well founded, it seems to me that all the circumstances relating to the fear have to be taken into account. In assessing the existence of a real risk of the violation of rights occurring, anything which may bear on the likelihood of the incidence of the violation would be relevant. It is the Applicant's fear which is in issue, and some matters particularly relating to him will be important. For example, his prominence in society or political life, or anything else which may make him a particular target of persecution may be relevant. The history of past violations, the extent to which the Applicant has been personally affected, either by being the victim of violence or the recipient of threats of violence, considerations of geographical location, of all the factors which might stimulate or facilitate a violation, will be among the circumstances to be taken into account. As also will factors which may discourage or deter or render a violation less likely. The political and legal situation in the country should be taken into account. And among those will be the element of protection which the State affords."

Having considered the submissions of counsel in this regard and on a consideration of the documents, I am satisfied that the decision makers, the Commissioner, the Tribunal and the Minister did have evidence upon which they could come to the view they did and that same is not unreasonable. Accordingly, I refuse leave to apply for judicial review.