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Cite as: [2002] IEHC 33

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A. (T.) v. Minister for Justice Equality and Law Reform [2002] IEHC 33 (15 January 2002)

THE HIGH COURT

Record 2000/683JR

BETWEEN

T. A.

APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENT

JUDGEMENT of Mr. Justice T.C. Smyth delivered the 15th day of January, 2002

1. The Applicant is Libyan National and a member of the outlawed National Front for the Salvation of Libya and arrived in Ireland on 9th May, 1998 and immediately applied for asylum in the State. He completed a standard application form on the 14th May, 1998 and he was subsequently called for an interview which took place on the 14th August, 1998. Over one year later by letter dated 9th September, 1998 the Applicant was informed by the Respondent that his application for Refugee Status was refused. This had been done on foot of a written assessment made by one Mr. Tom Roddy dated 16th October, 1998 which was not furnished to the Applicant at the time he formulated his Notice of Appeal but became available to him thereafter. There was a period of fourteen days on which to file Notice of Appeal and if the Notice of Appeal had been put in straight away it is possible that the text of Mr. Roddy’s report would have been available before the submissions made for and on behalf of the Applicant by the Refugee Legal Service in the person of Mr. Conor Griffin was formulated. The background of the case indicates that the Applicant was a person whom the authorities in Libya felt they could approach with a view to carrying out certain works of espionage which he declined. As is stated in Mr. Roddy’s report that the Applicant confirmed that he was a soldier in the Libyan armed forces. However, it appears that he was also a member of the National Front for the liberation of Libya which was some form of clandestine movement organised in cells, in respect of each cell the identity of one member was not known to the other save that the leader of the cell was known to the Applicant and the Applicant was known to such person by sight. His position in the community was such that he had a number of Maltese business friends who would visit Libya on many occasions on business trips. His father was stated to have been arrested on a charge of smuggling money out of Libya in or around February 1997, the date not specified. The Applicant realising that the head of the group or cell of the clandestine organisation was taken off by the authorities he decided to go to T by car. He left Libya in a hurry. His mother gave him $1,500 and he left by boat from M where he stayed for three months. His flight from M to Dublin was arranged by his cousin in M. Mr. Roddy noted that the Applicant’s claim for Refugee Status was on the basis of his involvement with the clandestine organisation viz. “The National Front for the Salvation of Libya.” He noted however that the Applicant’s evidence did not prove a well-founded fear of persecution for a number of reasons which he enumerated from a) to e) at Page 3 of his report and he concluded that he was not satisfied that the Applicant had established a well-founded fear of persecution for those reasons and he recommended that his application be refused. Against that refusal the Applicant appealed. A well organised Submission on the appeal specifically stated and submitted that the Applicant had established his entitlement to be regarded as a refugee, to a reasonable degree of likelihood and he also demonstrated a well founded fear of returning to Libya where he could face persecution due to his political opinions as a member of the National Front for the Salvation of Libya. Furthermore, that the Applicant would face persecution due to his race, i.e. a member of the Warfalla Tribe and he would face persecution as a result of his membership of a particular social group i.e. middle class Libyans. Excepting that there were some unavoidable subjective elements of fear of persecution which come into play in deciding an application from Refugee Status, it was nonetheless contended that to return the Appellant/Applicant to Libya would be to expose him to the possibility of detention torture and/or other cruel, inhuman and degrading treatment. An analysis of the report of Mr. R was included in the submission, in particular it was stated that the Respondent had failed to establish and evaluate the facts properly; paragraph 13 of the Applicant’s Submission stated as follows:-

“The 1951 convention is forward looking. It is about international protection. What would happen to an Applicant if returned to his country of origin must be examined. The Department in their analysis have not considered whether there is a reasonable degree of likelihood that the Applicant would be persecuted on his return to Algeria (sic) they have not evaluated, as is their duty, whether there is a risk of persecution and whether the Applicant’s fear is well founded.”

2. The Applicant did have the benefit and advantage of having legal advise both in the preparation and presentation of the appeal. The appeal took place on the 23rd February, 2000 and the Appeals Authority made their recommendation on the 24th October, 2000. The Applicant was informed of the outcome of the appeal by letter dated 3rd November, 2000. An application for judicial review was brought before the Court (including an extension of time for the making of the application). An extension of time was granted. There is at present before the Court an application to quash by order of certiorari the recommendation of the Appeals Authority hereinbefore referred to and quashing the decision dated 3rd November, 2000 refusing the Applicant’s appeal against the decision of the Respondents dated 8th September, 1999 refusing the Applicant’s Refugee Status in Ireland. Further reliefs sought are an Order remitting the Applicant’s asylum came to a rehearing and/or directing the Respondent to remit the Applicant’s asylum claim for rehearing in accordance with such directions including directions as to the correct test to be applied in considering applications for Refugee Status as the Court may consider just and appropriate.

3. The basis upon which the Appeals Authority arrived at their decision is to be found in the conclusion of the report and it is expressed in the terms following:-

“I have carefully considered all the evidence in this case. It is clear that the situation in Libya poses great difficulties for dissidents and opposition groups and the tribe to which he stated he belonged is closely scrutinised by the authorities. The Appellant appeared tense and anxious at the hearing and I can appreciate his reluctance to return to Libya at the present, however I cannot find that he left the country for a convention reason. He never came to the attention of the authorities, in fact they trusted him enough to ask him to spy on his colleagues. He was able to travel abroad extensively for years. He was never questioned in relation to his involvement with the National Front for the Salvation of Libya. Accordingly, I must recommend that his appeal be refused.”

4. The test of whether a person is or is not a Refugee requires the application of the definition of Refugee as set out in Section 2 of the Refugee Act, 1996 which is to the following effect:-

“A person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group of a particular opinion, is outside the country of his or her nationality and is unable, or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or, owing to such fear, is willing to return to it but does not include a person who ....”

5. The definition is in identical terms to that set out in Article 1A(2) of the Convention, and that Article of the convention was the subject of consideration by a decision of the House of Lords, Adan -v- Secretary of State for the Home Department [1998] 2 WLR 702; [1998] 2 ALL ER 453.

6. It was submitted on behalf of the Applicant that the Appeals Authority applied the incorrect test in that having noted “however I cannot find that he left the country for a convention reason, ... “Accordingly, I must recommend that his appeal be refused.” Mr. Durkan SC submitted that the Appeals Authority refused refugee status because it could not find that the Applicant had left his country for a convention reason. There is no doubt in my mind that having read all the documentation in detail and indeed considering paragraph five of the Affidavit relied upon in these proceedings where it is specifically averred:-

“The Applicant had left the country fearing for his life following the arrest of the leader of his cell and that, since leaving, his home had been searched and members of his family questioned in connection with his whereabouts on several occasions.”

7. The question as to whether the Applicant left his country of origin because of fear of persecution, was one of a number of questions raised for consideration.

8. It seems to me that the Appeals Authority were entitled to consider the documentation lodged and in particular the matters referred to at letters a) to e) in the report of Mr. Roddy, to be placed side by side with the submissions made on the background of the Applicant’s case as put in the Appellant’s letter to the Appeals Authority. It was held by the House of Lords that under Article 1A(2) of the Convention an Applicant had to show a current well-founded fear of persecution for a Convention reason and a “historic fear” was not sufficient. Comparison and analysing of Appeals Authority reports has been characteristic of many of the cases coming before the Courts in asylum cases. It seems to me that the correct approach to take to these matters is that set out by Kirby J. in the leading judgment of a High Court of Australia in Minister for Immigration and Ethnic Affairs -v- Wu Shan Liang (1996) 185 CLR 259 at 293 which is to the following effect:-

“First, it is not erroneous for a decision maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a Court of Law conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for such a decision maker to test the material provided by the criteria of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan. Secondly, the decision maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, not withstanding particular findings, for the decision maker in the end to return to the question “what if I am wrong?” (Guo Wai Rong -v- The Minister for Emigration and Ethnic Affairs) [1996 135 ALR 421 at 441]. Otherwise by eliminating facts on the way to the final conclusion, based upon what seems “likely” or “entitled to greater weight” the decision maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a “real chance” of persecution. However, it was expressed in the neighbouring jurisdiction in this way by Simon Brown LJ in R -v- Secretary of State for the Home Department XP Ravichandran [1996] Imm AR 97 at 109 as follows:-

“In my judgment, the issue whether a person or group of people have a “well-founded fear ...of being persecuted for [convention reasons]”... raises a single composite question. It is, as it seems to me, unhelpful and potentially misleading to try to reach separate conclusions as to whether certain conduct amounts to persecution, and as to what reasons underlie it. Rather the question whether someone is at risk of persecution for a convention reason should be looked at in the round and all the relevant circumstances brought into account. I know of no authority inconsistent with such an approach and, to my mind, it clearly accords with paragraph 51 of the UNHCR handbook and with the spirit of the convention”.

(Emphasis added)

9. The matter was more recently considered by the Court of appeal in England in Karanakaran -v- Secretary of State for the Home Department [2000] 3 ALL ER 449 per Sedley LJ at 497 as follows:-

“I would put my own view, in summary as follows. The question whether an applicant for asylum is within the protection of the convention is not a head to head litigation issue. Testing a claim ordinarily involves no choice between two conflicting accounts but an evaluation of the intrinsic and extrinsic credibility, and ultimately the significance, of the Applicant’s case. It is conducted initially by a departmental officer and then, if challenged by one or more tribunals which, though empowered by statute and bound to observe the principals of justice, are not courts of law. Their role is best regarded as an extension of the initial decision making process see; Simon Browne LJNR -v- Secretary of State for the Home Department Ex p Ravichandran [1996] Imm AR 97 at 112. Such decision makers, on classic principals of public law, are required to take everything material into account. Their sources of information will frequently go well beyond the testimony of the Applicant and will include in-country reports, expert testimony and - sometimes - specialised knowledge of their own (which must of course be disclosed). No probabilistic cut-off operates here: everything capable having a bearing has to be given the weight, great or little, due to it. What the decision maker ultimately make of the material is a matter for their own conscientious judgment, so long as the procedure by which they approach and entertain it is lawful and fair and provided their decision logically addresses the convention issues. Finally, and importantly, the convention issues from first to last are evaluative, not factual. The facts, so far as they can be established, are sign posts on the road to a conclusion on the issues; they are not themselves conclusions.”

10. It is clear from the decision of the Appeals Authority in the instant case that all the evidence was considered, and it is also clear that there is an appreciation that the situation in Libya posed difficulties for dissidents and opposition groups and the tribe to which the Applicant belonged. Furthermore, there appears to be an understanding and appreciation of the subjective fear of the Applicant and his reluctance to return to Libya. Reference to the historic fear is not misplaced. Lord Slynn in his speech in Adan observes:-

“Resistance of what has been called historic fear is not sufficient in itself, though it may constitute important evidence to justify a claim of a current well-founded fear.”

11. The Court cannot act as a Court of appeal from the Appeals Authority. I must be satisfied that there was material before the Appeals Authority upon which they could make a decision such as it did and, even if a Court had a mind to come to a view different to the Appeals Authority on the merits or facts of the case it would be quite improper in judicial review for the Court to do so. Griffin J. in The State (Keegan) -v- Stardust Compensation Tribunal [1986] I.R. 642 in agreeing with the principals laid down by Henchey J. quoted with approval from the speech of Lord Brightman in R -v- the Chief Constable of the North Wales Police, ex parte Evans [1982] 1 WLR 155 where he sated at p. 160 as follows:-

“Judicial review is concerned, not with the decision, but with the decision making process. Unless that restriction under the power of the Court is observed, the Court would in my view under the guides of preventing the abuse of power, be itself guilty of usurping power ... judicial review, as the words imply, is not an appeal from a decision, but of a review of the manner in which the decision was made.”

12. In the instant case I am satisfied that there was an appreciation by the Appeals Authority the Applicant’s concern, fear, or reluctance to be returned to Libya but equally so the Appeals Authority was entitled to review the position as a whole and to look at the historical context against which that fear might be said to have arisen or the information in its totality to see if there was a “real chance” or more likely than not a possibility that persecution would ensue on his return to Libya. The Appeals Authority’s conclusion in the recommendation may not be very happily worded but nonetheless does raise considerations of historic fear and present or anticipated “reluctance” fear of the Applicant. Taking the letter of the 3rd of November in conjunction with the appeal’s recommendation (and they must taken together) it is quite clear that:-

“The Appeals Authority have considered all the issues in your appeal. The authority is not satisfied that you have established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group of political opinion, as defined by Section 2 of the Act and has, therefore, recommended that you appeal should not be allowed.”

13. It cannot be said therefore that the decision as communicated to the Applicant failed to have regard to the provisions of Section 2 of the Refugee Act, 1996.

14. The application for leave was treated as the application for judicial review. The application is dismissed.