High Court of Ireland Decisions



Bujari v. Minister for Justice, Equality and Law Reform & Anor [2003] IEHC 18 (7 May 2003)

THE HIGH COURT
IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING ACT) 2000

BETWEEN

LEONARD BUJARI

APPLICANT

AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND
DES ZAIDEN, MEMBER OF THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

JUDGMENT of Ms. Justice Finlay Geoghegan delivered the 7th day of May 2003.

This is an application for leave to issue judicial review seeking primarily an order of certiorari of the decision of the second named proposed respondent of the 26th April, 2002, recommending a refusal of the appeal of the applicant against a recommendation of the Refugee Application's Commissioner recommending that his claim for refugee status be refused. The decision is stated to have been received by the applicant on 7th June, 2000. The notice of motion seeking leave was instituted on the 15th July, 2002 and therefore outside of the fourteen day time limit provided for in s.5 of the Illegal Immigrants (Trafficking) Act, 2000. The application for the extension of time is grounded upon the affidavit of Maureen Connolly, a legal executive of Colgan and Company, Solicitors who explained that she was the person in the firm who was present during the conduct of the appeal hearing. She explains that she was unable to deal in the period after the 7th June, with the applicant's position and/or consider the possibility of instituting judicial review proceedings by reason of a day to day hospitalisation as a result of a severe lumbar disc prolapse and certified that on the basis of the affidavit Ms. Connolly that this is a case in which an extension of time should he granted for the period up to and including the 15th July 2002.

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BACKGROUND FACTS

The applicant arrived in the State in August, 1999, from Kosovo. He applied for refugee status. He completed the standard application form in which he gave as the reasons for his application:

"I am looking for refuge here because of the situation in Kosovo, because of the war, because of the unsafety, for economic reasons, and most importantly because I have lost my family, and by losing my family I have lost half of my life, and this is the main reason that I have left Kosovo and am looking for asylum in Ireland."

The applicant was subsequently interviewed by an official of the Refugee Applications Commissioner. In the course of that interview he explained that he was of Kosovon/Albanian nationality and a Catholic as were his father and mother; that he lived in a village where there were only a few Catholic families; the majority were Muslim. He also gave out his main reason for leaving Kosovo as being that "I lost my whole family". He described the killing of his parents on the 6th July, 1999, as it had been recounted to him by neighbours. He did not see it himself. When asked who were the men who killed his parents he replied

"In the village there were only a few Catholic families. The majority were Muslim and we really did not get on well with the rest of the village. We were always put down because we were Catholics. Because we were Catholic we were looked upon as being pro Serb. Serbia always looked on Catholics with a better eye than they did the Muslims. As a result of this my father had problems with people from the village. As a result of this and from what the neighbours have told me I have formed an opinion that my parents were killed by Kosovans and not Serbs. The majority of Kosovans who are ethnic Albanians are Muslim, about 80%/90% are Muslim. My opinion is that it was one from the village who killed my parents and as a result of what happened to my parents and my religious

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background I saw that I could not live there any longer. That is the main reason why I left."

The Refugee Applications Commissioner recommended that the application for refugee status be refused.

An appeal was taken against that decision and an oral hearing held before the second named respondent. It appears from the grounding affidavit of the applicant and the oral hearing that he stated that his father was a Serb collaborator and that that was the primary reason why he and his mother were killed and also the primary reason why the applicant cannot return to Kosovo and is fearful of doing so. The applicant's appeal was subsequently rejected for the reasons set out in the decision dated the 26th April, 2002.

THE LAW

This application is made pursuant to s.5 of the Act of 2000. The onus is on the applicant to establish that there are substantial grounds for contending that the challenged decision is invalid and ought to he quashed. Whilst the grounds set out at paragraph E of the statement of grounds are in general terms, the grounds actually advanced at the oral hearing which come within the general grounds set out in the statement of grounds may be summarized as follows:

1. The decision-maker is obliged, as a matter of fair procedures in assessing the credibility of the applicant and in particular any material inconsistency between the evidence given at the oral hearing and at the earlier stages of the application, to consider and assess the explanation given at the oral hearing for such inconsistency. Further, such inconsistencies must he assessed in accordance with the principles set out in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of

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Refugees and in particular paras. 195 to 202. The second named respondent in this instance, it is alleged, failed to make any such assessment.

2. It was submitted that the second named respondent failed to have regard to relevant country of origin information which was submitted.

To constitute substantial grounds the alleged grounds must be equivalent to "reasonable, arguable" and 'weighty" and must not be "trivial or tenuous", see McNamara v. An Bord Pleanala [1995] 2 I.L.R.M. 125 as approved by the Supreme Court in The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360.

The facts relied upon by the applicant to support the first ground are set out in his grounding affidavit. The applicant admits therein that he did not reveal at the first stage of his application for asylum (including the interview process) that his father was a Serb collaborator, nor that the hostile reaction of the other Kosovo nationals to him and the members of his family was intimately bound up with that fact. He seeks to explain this by saying that he is particularly ashamed of it and that it is extremely difficult for him, even now to reveal this fact. He further explains in his affidavit that prior to the conduct of the appeal he had a consultation with his legal advisors; that he had gained the trust of his legal advisors and revealed to them that his father had been a Serb collaborator and the impact of that fact upon his circumstances. It is implicit from the affidavit and clear from the decision that in the course of the appeal hearing, the applicant stated that his father was a Serb collaborator and that this was the primary reason why he and his mother were killed and the primary reason why he cannot return to Kosovo. At para. 4 of his affidavit he states:

"I say that during the course of the said Appeal, my legal advisers asked your Deponent to explain why he had not revealed this particularly pertinent fact at first instance. I say that your Deponent explained same and attempted to convey to the second named Applicant his sense of shame at this fact. I say that your

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Deponent became extremely upset when recounting this fact and recounting the murder of both his parents."

The applicant's affidavit is unchallenged on this application for leave. Accordingly, I must determine this application upon the basis that the applicant did give at the oral hearing the explanation set out in his affidavit as to why he had not revealed the fact that his father was a Serb collaborator at an earlier stage in the application and his sense of shame connected with that fact.

It is submitted on behalf of the applicant that the second named intended respondent was obliged in assessing the credibility of the applicant's story and in particular the impact of the change in a material respect between what was stated at the initial stages and at the appeal hearing to have regard to and assess the explanation given by the applicant for such change and that he failed to do this.

The assessment of the credibility of the applicant is a matter for the examiner at first instance or on appeal by the member of the tribunal. It is not a matter for this court on judicial review. However, the process by which such credibility is assessed does appear to be a matter which is within the remit of this court upon a judicial review. Guidance is given as to the manner in which such assessment should be carried out by examiners in the UNHCR Handbook at paras.195 to 202.

Paragraph 199 appears at particular relevance and provides:

"While an initial interview should normally suffice to bring an applicant's story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner's responsibility to evaluate such statements in the light of all the circumstances of the case."

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I am satisfied, on a careful consideration of the decision of the member of the tribunal herein, that no reference is made at all by him to any explanation given to him at the oral hearing by the applicant for the material difference in the facts as stated in the initial interview and at the oral hearing. Further I am satisfied that on a fair reading of that decision the change in the facts was a material factor in the tribunal member's assessment of the credibility of the applicant and his ultimate assessment that the applicant's story (presumably the story given at the appeal) was not credible.

I have concluded that on the facts of this case the tribunal member was under an obligation as a matter of fair procedures in the assessment of the applicant's claim for refugee status to consider and assess the explanation given to him at the appeals oral hearing of the reason for which the applicant did not disclose at an earlier stage and was now disclosing the fact that his father was a Serb collaborator and that this was the cause of his parents killing and his fear of returning to Kosovo.

The further ground relied upon, that the member of the tribunal did not consider the country of origin information, appears to me to be inextricably linked to the first ground. The country of origin information referred to is primarily information relating to persons perceived to have been associated with or collaborators of the Serb regime. In the light of the tribunal member's conclusion on the lack of credibility of the applicant's story alleging the perception of his family as collaborators, it does not appear to me that there are substantial grounds for alleging that he failed to take into account material country of origin information. Accordingly I do not consider that there are substantial grounds for contending, as a separate stand alone ground that the tribunal member failed to have regard to the documents as submitted by the applicant.

Accordingly I will grant leave on the grounds set out at para. E and numbered in the copy of the statement of grounds with my papers as 2, 3 and (a); these are for the purposes of clarity, the first, second and fourth grounds set out.