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Cite as: [2004] IEHC 606, [2004] 2 IR 607

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Neutral Citation No: [2004] IEHC 606

HC 219/04

THE HIGH COURT

Judicial Review

[2002 No. 519J.R.]

BETWEEN

A. M. T.

APPLICANT

AND

THE REFUGEE APPEAL'S TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

RESPONDENTS

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 14^th day of May 2004

The applicant states that he is a national of the Ivory Coast and a member of the Djoula tribe in the Ivory Coast and of the Muslim faith. He alleges that he was forced to flee the Ivory Coast in or about July 2000 following serious difficulties at his workplace which put him in fear of his life.

He arrived in Dublin on the 8^th October, 2000 travelling by air from Hamburg in Germany. He travelled on what is admitted to be a false French passport, initially stated that he was coming to Ireland for holidays and then on the 9^th October, 2000 applied for a Declaration of Refugee Status in Ireland.

Thereafter, the normal procedures followed and the Refugee Applications Commissioner on the 22^nd April, 2002 recommended that he should not be declared to be a refugee.

From that decision he appealed to the Refugee Appeals Tribunal and following an oral hearing received a decision dated 31^st July, 2002 refusing his declaration for refugee status for the reasons set out in the decision of the Tribunal Member dated 29^th July, 2002. The applicant initiated proceedings seeking leave to issue Judicial Review by Notice of Motion dated the 15^th August 2002. By order of this court (Butler J.) of the 26^th November, 2002 he was granted leave to apply for judicial review seeking an order quashing the decision of the first named respondent as communicated in the letter of the 31^st July, 2002. He was granted leave to do so upon the grounds set out at par. (e) 3, 4 & 7 (as amended) of the Statement of Grounds.

The application is grounded upon two affidavits of the applicant and an affidavit of his solicitor. A notice of opposition was filed and the only affidavit sworn on behalf of the respondents is an affidavit exhibiting correspondence with the Embassy of the Republic of Mali in Paris relating to the practice of stamping passports when leaving from Mali International Airport.

Applicants claim for Asylum

The applicant's claim for a Declaration of Refugee Status is based upon an alleged fear of persecution by reason of his Muslim faith and membership of the Djoula tribe if he were to be returned to the Ivory Coast. His claim that the fear is well founded is based upon the following alleged incidents which he stated took place in the Ivory Coast in April 2000. He had been a driver to a Secretary to the Government since October 1998. There was a coup d'Etat in December 1999 leading to a change of Government and he did not return to work until April 2000 as Madame Bombay, the Government Secretary for whom he worked, was on maternity leave. In April, one week after his return to work, he stated he was wrongly accused by Madame Bombay of having stolen two letters addressed to Muslim leaders for political purposes. He stated that he was dismissed from his job and was threatened that if he did not return the two letters in question the matter would be reported to the police on the basis that he was a spy. On the same day a police raid was carried out on his home whilst he was hiding at a relative's house where he had been praying and his passport and national identity card were confiscated. He alleged that he believed that his life was in jeopardy; further, that this was because of his tribal background and religion; that he was the only Muslim amongst several drivers and no one else was accused of stealing the letters in question. In support of the alleged story he produced to the Tribunal two summonses dated the 12^th and 19^th April respectively, requiring him to present himself to the police in Abidjan in each case on the following day. He also produced, as proof of his identity, a copy of a driver's licence, bankcard and blood donor card.

The applicant further alleges that he then went into hiding in a compound of one of the Muslim leaders in the Ivory Coast and that the Iman arranged his departure from the Ivory Coast; that pursuant to those arrangements he travelled to Mali and subsequently by air to Paris and on to Hamburg where he stayed overnight and travelled by air from Hamburg to Dublin on the following day. He produced an admittedly false French passport which he alleges he was given at the airport in Mali together with travel documentation and a ticket and boarding pass from Hamburg to Dublin only.

He was represented by solicitor at the hearing before the Tribunal Member in advance of which a detailed Notice of Appeal had been submitted together with country of origin information.

Decision of Tribunal Member

The decision of the Tribunal Member sets out in some detail the evidence before her. There are two extracts of such evidence, as recorded, which are relevant to the issues I have to consider and cited later in the judgment.

This section of the decision is followed by statements of the law relating to the definition of a refugee, the burden and standard of proof and the definition of persecution. No challenge is made to these and, therefore, it is not necessary to set them out.

The final part of the decision is an assessment of the claim made by the applicant. In the first part of the assessment the Tribunal Members considers the country of origin information relating to the Ivory Coast and concludes that it indicates that there is serious discrimination against Muslims.

The Tribunal member then assesses the creditability of the applicant's story in the following terms:

"Mr. Noel Smith in his Section 13 Report summaries the applicant's position on the first paragraph of the second page of his report which states:

"During the course of the interview the applicant stated that he did not go to school and was unable to read or write. It is difficult to understand why the applicant would have the responsibility to deliver the letter of a Government office and officials if this was the case."

I would endorse that assessment. It is neither plausible nor believable that an illiterate person would be one of the three people employed as drivers to Secretaries of top Government officials. It is inconceivable to think that somebody who was totally unable to read or write would be given custody of important letters. The applicant gave the same details at the hearing as he did at his interview. His production of summons do not show anything on the face of them that might be a cause for concern. The applicant stated he was a Muslim and one of the clearly discriminated groups of people and yet he claims to have been employed in a top position. This aspect of the applicant's story is neither plausible nor believable. The applicant produced a false French Passport and claimed he travelled to Ireland via Mali onto Paris and by bus to Germany. It seems extraordinary that if the final destination was Ireland, somebody would travel by bus from Paris to Germany and then take a flight from Hamburg to Ireland. The fact that the applicant produced two letters in the name of a gentleman with a similar name to the applicant is of no relevance in my view.

I looked with great detail at all aspects of this applicant's case. The country of origin information relating to the Ivory Coast is particularly disconcerting, and therefore I scrutinised every detail of this applicant's claim and I noted with great care everything he said. However, I finally concluded, taking all aspects of this applicant's claim into consideration, that the story as told by this applicant was not credible. I found his story about an individual with a similar name in Germany only added to the lack of credibility of the applicant's claim. I further find it incredible that somebody whose itinerary was allegedly planned with such care to bring him to a country of safety and that he was fleeing persecution that he would state he was coming to this country for a holiday. While I was not particularly impressed by the general demeanour of the applicant at the hearing, I was very reluctant to attach very much to a non impressive demeanour lest I do the applicant an injustice. However, I have concluded that this applicant is in this country for some reason other than the story he has given.

Accordingly, I am not satisfied that this applicant has fled his country of origin due to persecution for the reasons he gave."

Grounds of challenge.

The grounds upon which leave was granted challenge four of the conclusions of the Tribunal Member in the assessment of the credibility of the applicant's story. Such grounds may be summarised as follows:

The Tribunal Member in error relied upon and took into consideration what she believed to have been evidence that the applicant travelled by bus from Paris to Germany whereas, in fact, there was no such evidence before the Tribunal Member.

The Tribunal Member ignored or failed to have any regard to the evidence given that the applicant was originally employed as a driver to top Government officials under a previous regime headed by Konan Bedie which did not discriminate against Muslims. Further, she was under an obligation to consider this evidence prior to reaching a conclusion on this aspect of the applicant's story.

Insofar as the Tribunal Member concluded that it was "neither plausible nor believable" that an illiterate person would be one of three people employed as drivers to Secretaries of top Government officials in the Ivory Coast it is alleged she did so without any relevant consideration of the situation pertaining in the Ivory Coast.

The Tribunal member wrongly placed emphasis upon the fact that the allegedly false passport produced by the applicant showed no entries which would indicate that the applicant travelled from outside the EU by reason of evidence given that European Union passports are not stamped upon arrival in the EU.

It was submitted that the decision was invalid on each of the above grounds.

In relation to each of the above grounds alternative legal submissions were made as to why the errors alleged rendered the decision invalid. Some of the submissions were upon the basis of what might be described as well established judicial review principles. Others were not. In particular, it was submitted (in the alternative) that the decision of the Tribunal Member was unreasonable or irrational in the legal sense by reason of the above alleged errors and it was contended that the standard of review set down by the Supreme Court in O'Keeffe v An Bord Pleanála [1993] 1 I.R. 39 is not the appropriate standard of review of a decision such as this in the asylum process. By reason of the conclusions which I have reached within the well established principles applicable to judicial review it is unnecessary for me to consider these additional and alternative claims. Having regard to the importance of the issue it does not appear appropriate that I should express a view in circumstances where it would only be obiter.

Conclusions

Each of the above grounds relate to the assessment of the credibility of the applicant's story. The assessment of the credibility of an applicant and/or his/her story is often crucial to the determination of his or her entitlement to a Declaration of Refugee Status. As I observed recently in Kramarenko v Refugee Appeals Tribunal and Ors (Unreported, High Court, Finlay Geoghegan J., 2nd April 2004) credibility potentially comes into play in two aspects of the assessment of a claim. Firstly, in the assessment of the subjective element of the applicant's claim, that he/she has a fear of persecution for a Convention reason if returned to his/her own country and secondly, in accessing the objective facts relied upon by the applicant, to establish that the fear is well founded.

The assessment of the credibility of the applicant is a matter for the relevant decision maker who, in the scheme established by the Refugee Act, 1996, is either an official of the Refugee Applications Commissioner or on appeal the Tribunal Member. This is often a difficult task particularly as the story normally relates to what is alleged to have happened in the country of origin. The assessment is required to be carried out in accordance with established legal principles and in accordance with the principles of constitutional justice. In this case part of the claim made is that the assessment of credibility was not carried out in accordance with the relevant legal principles. It is, therefore, appropriate to briefly consider such principles prior to setting out my conclusions on the individual grounds.

Kelly J. in Camara v The Minister for Justice, Equality and Law Reform (Unreported, High Court Kelly J., 26^th July, 2000) considered in some detail the relevant paragraphs from the Office of the United Nations High Commissioner for Refugees "Handbook on Procedures and Criteria for Determining Refugee Status" and having referred to paragraphs 37, 38, 41, 67, 196 then stated:

"From the foregoing it is clear that an applicant's credibility is always a relevant issue which falls to be assessed by the examiner. Goodwin- Gill ("The Refugee and International Law", Clarendon Paperbacks, Oxford) at page 349, puts the matter this way:

'Simply considered, there are just two issues. First, could the applicant's story have happened, or could his/her apprehension come to pass, on their own terms, given what we know from available country of origin information? Secondly, is the applicant personally believable? If the story is consistent with what is known about the country of origin, then the basis for the right inferences has been laid.

Inconsistencies must be assessed as material or immaterial. Material inconsistencies go to the heart of the claim, and concern, for example, the key experiences that are the cause of flight and fear. Being crucial to acceptance of the story, applicants ought in principle to be invited to explain contradictions and clarify confusions.'

These quotations appear to me to accurately represent the questions which must be addressed by an examiner and the approach which ought to be adopted by the examiner and the Authority."

The assessment by the decision maker of the credibility of the applicant and his story forms part of the decision making power conferred by the Refugee Act, 1996. Hence, following East Donegal Co-operative Livestock Mart Ltd. V. Attorney General [1970] IR 317, such assessment must also be carried out in accordance with the principles of constitutional justice.

The first ground relied upon by the applicant is the error made by the Tribunal Member as to the applicant's evidence of his method of travel from Paris to Hamburg.

On page 2 of the decision reciting the evidence she stated:

"The applicant gave his itinerary and stated he travelled from the Cote d'Ivoire to Mali by bus, from Mali to France, from France to Germany by bus and from Germany by plane to Ireland…"

In the applicant's grounding affidavit, at paragraph 12, he states that he did not give evidence that he travelled by bus from France to Germany nor did any person make any suggestion to that effect in the course of the hearing before the Tribunal Member. It was submitted that such error by the Tribunal Member as to the evidence given was of sufficient importance to render the decision invalid. Reliance was placed on the decision in Hill v. Criminal Compensation Tribunal [1990] ILRM 36. Also, such error was submitted to be in breach of the constitutional guarantee of fair procedures.

On behalf of the respondents, it was conceded that this was an error made by the Tribunal Member but, it was submitted, that this was an error of fact and, as such, did not invalidate the decision. Reliance was placed, in particular, on the decisions in Ryanair Limited v Flynn and Ors [2000] 3 IR 240 and Aer Rianta v Aviation Commissioner (Unreported, High Court, O'Sullivan J., 16^th January, 2003).

I have concluded that a different principle arises in relation to the error in this case to that at issue in the above cases. The question of how the applicant travelled between France and Germany was not a factual issue in dispute upon which the Tribunal Member was adjudicating. Rather, the Tribunal Member was required to adjudicate upon the credibility of the applicant and his story. As part of that adjudication, in accordance with the above principles, she was required to assess the story of the applicant as disclosed in the course of his application, either at interview or in writing or at the oral hearing before the Tribunal Member. The error of fact made is as to what was the story told or evidence given.

Applying the classic test as established by the Supreme Court in O'Keeffe v An Bord Pleanála [1993] 1 I.R. 39 at p. 72 to such error it is undisputed that there was "no relevant material" before the Tribunal Member from which she could have formed the view that the story told her by the applicant was that he travelled by bus from Paris to Hamburg.

Whether one considers the legal principles applicable to the assessment of credibility in claims for refugee status or the principles of constitutional justice, I have concluded that the obligation of the Tribunal Member is to assess the credibility of the applicant in relation to the story as told or evidence given by him/her. This did not happen in this case. In assessing the credibility of the applicant, the Tribunal Member has included as part of his story a fact for which she had no relevant material and, further, placed reliance upon such fact in a manner adverse to the applicant in reaching a conclusion against the credibility of his story. Such error renders the decision invalid.

In reaching the above conclusion I do not wish to suggest that every error made by a Tribunal Member as to the evidence given will necessarily render the decision invalid. It will, obviously, depend on the materiality of the error to the decision reached. The error must be such that the decision maker is in breach of the obligation to asses the story given by the applicant or the obligation to consider the evidence given in accordance with the principles of constitutional justice.

In relation to the second ground of challenge advanced the applicant states at par. 14 of his Affidavit:

"The first named respondent also erred in concluding that it was not credible that I could have been employed as a government driver under a regime that discriminated against Muslims. In so doing the first named respondent did not consider my evidence at the hearing, at interview and submitted in writing that [I] commenced employment under a previous regime headed by one Konan Bedie, which did not discriminate against Muslims."

As I have already indicated no affidavit in response was sworn. I must, therefore, consider this ground upon the basis that such evidence was given. The decision itself does not indicate that any consideration was given to such evidence. There is no reference to same in the assessment at pages 8 and 9 of the decision set out above. Further, the Tribunal Member records the evidence she considered to be given in response to her query on this issue at page 4 of the decision in the following terms:

"…I asked the applicant how he got a job driving one of the top people in the country and being one of three such top drivers, when he claims there is discrimination against Muslims. He said in his country he had to take a driving test and he needed experience as a driver and he used to work in a private school driving a school bus, but he would have very good experience. He stated he was a driver in this school which was a Catholic school in Abidjan…"

Again, simply applying the same well established principles relating to the obligation to exercise the power of adjudication conferred by statute in accordance with the principles of constitutional justice which includes an obligation to consider relevant evidence, it appears to me that the decision must be considered to be invalid. The evidence not considered is potentially relevant to the conclusion reached on the credibility of this part of the applicant's story. The conclusion on this issue is an integral part of the overall conclusion on credibility.

In relation to the third ground, the applicant's story was that he is an illiterate person and was employed from 1998 to 2000 as a driver to a Secretary to top Government officials. That alleged employment was fundamental to his entire story and his claim to have a well founded fear of persecution for a Convention reason, namely, his religion.

It was submitted that the Tribunal Member did not have or consider any relevant evidence of the requirements for such a job in the Ivory Coast and, in the absence of same, her conclusion was only conjecture on her part and invalid. Whilst there were several different legal submissions made in support of this ground, the fundamental issue appears to be whether or not the Tribunal Member was obliged to assess the story in the context of relevant country of origin information prior to coming to a conclusion such as that reached.

Such an obligation appears to follow from with the first issue identified by Professor Goodwin-Gill and approved by Kelly J in Camara v The Minister for Justice, Equality and Law Reform (Unreported, High Court, Kelly J., 26^th July, 2000).

"First, could the applicant's story have happened . . . given what we know from available country of origin information?"

Since the hearing in this case, as already indicated, I gave judgment in a leave application in Kramarenko v. Minister for Justice Equality and Law Reform and Ors. (Unreported, High Court, Finlay Geoghegan J., 2^nd April, 2004) in which a similar issue arose and concluded that there are substantial grounds for asserting that there is an obligation to assess the credibility of the applicant in the context of country of origin information. In that judgment I referred to Milan Horvath v Secretary of State for the Home Department (United Nations High Commissioner for Refugees Intervening) [1999] I.N.L.R. 7 (a decision of the Immigration Appeal Tribunal presided over by His Honour Judge Pearl ) where at p.17E of the report Judge Pearl stated:-

'(21) . . . It is our view that credibility findings can only really be made on the basis of a complete understanding of the entire picture. It is our view that one cannot assess a claim without placing that claim into the context of the background information of the country of origin. In other words, the probative value of the evidence must be evaluated in the light of what is known about the conditions in the claimant's country of origin

In accordance with the above principles, I have concluded that the Tribunal Member in this case was obliged to assess the applicant's story that, as an illiterate person, he was employed as a driver to Secretaries of top government officials in the context of what is known of the conditions in the Ivory Coast. Further, that by reason of the central importance this part of the story to the assessment of the credibility of the applicant her failure to do so renders the decision invalid.

Finally, in relation to the contention that the Tribunal member wrongly attached significance to the fact that the passport upon which the applicant alleged he had travelled did not bear a stamp, I have concluded that this ground was not made out. Whilst there is a reference to this matter at page 2 of the decision, including some evaluation of same it does not appear to have been a matter which, on the face of the decision, the Tribunal Member placed reliance. The Tribunal Member fully set out her assessment and the reasons for which she concluded that the applicant's story was not credible. It contains no reference to the stamp on the passport.

Accordingly I will grant an order of certiorari quashing the decision of the Tribunal and remitting the matter to the Tribunal for hearing and decision by another member of the Tribunal.