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Cite as: [2008] IEHC 171

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Neutral Citation No: [2008] IEHC 171

THE HIGH COURT

2006 865 JR

BETWEEN

A. N.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

THE ATTORNEY-GENERAL AND IRELAND

RESPONDENTS

Ex-Tempore Judgment of Mr. Justice Birmingham delivered on the 10^th day of June 2008.

This is an application for leave to seek judicial review of a decision of the Refugee Appeals Tribunal ("RAT") given on May 29 2006, in which the first named respondent determined that the applicant is not entitled to a declaration of refugee status and that the recommendation of the Refugee Applications Commissioner ("RAC") to that effect, dated September 15^th, 2006, should be upheld.

Factual Background

The applicant claims to be a national of Afghanistan, having been born in Kabul on March 1^st, 1973. He is therefore 35 years of age. He says that his family were all members of Gulbuddin Hekmatyar's faction of the Hezb-i-Islami, the "Islamic Party", in Afghanistan. He says that he joined the Hezb-i-Islami in 1993 and remained a member until he left Afghanistan. His political involvement was linked to that of his brother, who was a commander of 200 people. His brother gave the applicant some limited responsibility as a security person. This did not involve military activity as such, and the applicant did not carry a gun; his duties were primarily as a guide or lookout, and as a courier of leaflets.

The applicant claims that at one point, his brother gave him leaflets criticising the Government to hand to another man named Khalid, whose responsibility it was to distribute the leaflets. Khalid was arrested on November 30^th, 2004, and named the applicant as being involved in Hezb-i-Islami. The applicant says that early the following morning, he too was arrested by Government forces, and detained for 38 days at an unknown location. The applicant claims that he was tortured while detained, beaten with sticks and kicked and punched all over his body, including his testicles.

The applicant says that he was released in Kabul after his brother arranged for a bribe to be paid to the authorities. He says that he was unable to walk and spent a month at a relative's house, recuperating from his injuries. He claims that during this time, the authorities visited his own house on many occasions looking for him.

He states that in February 2005, he travelled with his brother, his cousin and two other people towards Herat, in western Afghanistan. His cousin was driving. The car was stopped at a check-point in Pul-e-Sokhta, a district of Kabul, and the authorities sought to arrest them. His cousin accelerated through the check point, and the police shot at the car. The applicant says that his brother and cousin were killed in the shooting. The applicant claims that he escaped from the car uninjured and travelled 600 kilometres to his aunt's house in Herat, by taxi.

He further claims that his aunt's husband went to Kabul for the applicant's brother's funeral and, upon return to Herat with the applicant's mother, informed him that the authorities were blaming him and his (now deceased) brother for the explosion of a taxi in Pul-e-Sokhta some months earlier, which had resulted in the death of a number of people. The applicant's position is that he knew nothing of this explosion. It was then arranged that he would leave Afghanistan, via Pakistan, with the help of a family friend. It appears that he arrived in the State on March 14^th, 2005.

Procedural Background

The applicant applied for asylum in the ordinary way, claiming that if returned to Afghanistan, he would be persecuted on the basis of his political opinion. His application was rejected by the Office of the Refugee Applications Commissioner (ORAC). By notice of appeal dated October 14^th, 2005, the applicant exercised his right of appeal to the RAT. The RAT oral hearing took place on November 24^th, 2005.

Of particular importance in the context of the present challenge is the correspondence that took place between the Refugee Legal Service ("RLS") and the Tribunal member, and documentation thereby submitted in support of the applicant's appeal. The first series of correspondence saw two medical reports submitted by the RLS to the Tribunal member, the first from the applicant's GP and the second from an examining physician with the SPIRASI Centre for the Care of Survivors of Torture. The GP's report, dated October 21^st, 2005, was submitted by letter dated November 2^nd 2005. This was, therefore, available at the oral hearing on November 24^th, 2005. The SPIRASI medico-legal report, dated April 30^th, 2006, was forwarded by letter dated May 15^th, 2006, receipt being acknowledged on May 16^th, 2006.

A second series of correspondence between the RLS and RAT began by RLS letter dated December 7^th, 2005, asking the Tribunal member to await the arrival of identity documentation from Afghanistan before arriving at a decision in the matter. The RLS supplied the Tribunal member with what was stated to be the applicant's un-translated Hezb-i-Islami membership card and the envelope in which it was received, by letter dated January 26^th, 2006. The RLS sent a translation of the membership card to the Tribunal member on February 7^th, 2006. Receipt of these letters and the attached documentation was acknowledged by letters dated December 8^th, 2005, January 30^th, and February 9^th, 2006. It is noteworthy that the applicant claims also to have been waiting for the arrival by post of an identity card, but this did not materialise.

The Tribunal member rejected the applicant's appeal in a reasoned decision dated May 29^th, 2006, which was notified to the applicant by letter dated June 20^th, 2006. The Minister for Justice, Equality and Law Reform ("the Minister") refused the applicant asylum status and proposed to make a deportation order relating to the applicant. The Minister's decision was notified to the applicant by letter dated July 4^th, 2006.

By notice of motion dated October 2^nd, 2006, the applicant applied for leave to seek judicial review. The applicant is seeking the following reliefs:

(i) An Order of Certiorari quashing the Tribunal member's decision to affirm the earlier RAC officer's decision;

(ii) An Order of Certiorari quashing the Minister's decision refusing the applicant asylum status and proposing to make a deportation order;

(iii) An Order of Mandamus directing that the matter be remitted for a de novo hearing before a separate Tribunal member.

Extension of Time

The applicant was very marginally out of time for this application. There being no opposition from the respondents, I indicated that I was disposed to extend time, and this I now do.

The Issues in the Case

The applicant claims that the Tribunal member's decision of May 29^th, 2006 should be quashed because it is in breach of fair procedures and constitutional justice. There are four bases for the applicant's challenge to the Tribunal member's decision, which I would summarise as follows:

(a) The absence of credibility findings;

(b) Treatment of the Medical Reports submitted;

(c) Treatment of the Country of Origin information;

(d) Consideration of Identity Documents / Membership Card.

I propose to examine each of these bases individually.

1. Absence of Credibility Findings

Before reviewing the applicant's arguments as to the Tribunal member's findings – or lack thereof – as to credibility, I would observe that the Court must not fall into the trap of substituting its own view on credibility for those of the Tribunal member. As was pointed out by Peart J. in Imafu v The Minister for Justice Equality and Law Reform & Ors. [2005] IEHC 416, the Tribunal member is in the best position to assess the applicant's credibility as the Tribunal member has the benefit of being able to observe the demeanour of the applicant when he or she gives evidence. I agree with Peart J. that this is a very helpful tool for the assessment of credibility, which is lacking in a transcript or in a summary of evidence contained in any written decision. For this reason, this Court must be reluctant to interfere with the Tribunal member's credibility finding.

That said, I will now turn to the applicant's arguments. The applicant contends that the Tribunal member erred in failing to make a specific finding as to the applicant's credibility. The applicant accepts that the Tribunal member expressed doubts as to some aspects of the applicant's claim, but contends that in the absence of a specific finding as to credibility, it is not clear from the face of the decision whether the Tribunal member reached a conclusion as to credibility. In support of this contention, counsel for the applicant relies on the decision in Kramarenko v The Refugee Appeals Tribunal [2005] IEHC 101. In that case, Finlay Geoghegan J. commented follows:

"I am satisfied that there are substantial grounds for contending that the Tribunal or an adjudicator at first instance is obliged, where an issue is raised as to the credibility of the applicant, to assess the applicant's credibility either in general or in relation to particular factual issues and make a clear finding on that issue. The importance of this issue in an application for a declaration of refugee status appears to require such a clear determination."

I am inclined to agree with the respondents that Kramarenko is not authority for the assertion that the Tribunal member must make specific express findings as to credibility. It appears to me that the Tribunal member was not obliged to expressly state that she doubted the applicant's credibility. I am persuaded, in particular, that Kramarenko must be read in light of the following finding of David Pannick QC (sitting as a Deputy Judge of the English High Court) at page 477 in R. v Immigration Appeals Tribunal, ex parte Sardar Ahmed [1999] INLR 473, which was expressly approved by Finlay Geoghegan J. in Kramarenko, that:

"I emphasise that I do not find that it is incumbent on all special adjudicators to make detailed, or indeed any, findings on the general position where they consider that an applicant lacks credibility."

I note also, in this regard, the decision of Herbert J. in Kikumbi v Refugee Applications Commissioner [2007] IEHC 11, where he noted as follows:

"The obligation to give reasons, as explained by the Supreme Court in F.P. and A.L. v. The Minister for Justice, Equality and Law Reform [2002] 1 IR 164, does not, in my judgment, require the decider of fact to give reasons why she or he applying such common sense and life experience found that a particular account or aspects of such an account to be not credible."

It seems clear to me that there is no obligation for an adjudicator such as RAT members to make express findings on credibility, whether positive or negative, in every case. RAT members can make clear their conclusions as to credibility otherwise than through a recitation of each and every factual assertion made by the applicant. The degree of specificity required must depend on the circumstances of each case; there can be no blanket obligation to expressly reject or accept in terms the credibility of each fact asserted.

I note, in passing, that the absence of a specific finding as to credibility was not addressed in the applicant's written submissions. Perhaps this is explicable on the basis that any reasonable person reading the Tribunal member's decision would come to the conclusion that there clearly was a negative finding as to credibility. The decision of the Tribunal member shows, in my view, that she carefully and comprehensively considered the credibility of the accounts given by the applicant of the events that he claims took place in Afghanistan in 2004-2005. It is my view that even though she stopped short of saying "I do not find the applicant credible", there is no doubt that that is what the Tribunal member was in fact saying in her report. No reasonable person reading the decision could consider that the Tribunal member did not make a clear determination as to the applicant's credibility. I find, therefore, that the applicant's arguments in this regard fail.

2. Treatment of Medical Reports

The GP's report, to a large extent, involves a recital by the doctor of what he was told. The report records that there are no scars on the applicant's body and that his testes were not swollen. With the arguable exception of a reference to a complaint of tenderness in the left third costochondral area, there is an absence of physical findings consistent with or supportive of the claim of extensive ill-treatment. Much of the report is concerned with what the applicant has to say about his psychological state. The Tribunal member refers specifically to the report, and is clearly of the view that the report does not offer significant support to the applicant. The conclusion reached by the Tribunal member was one that was open to her.

So far as the SPIRASI report is concerned, which came to hand after the oral hearing, it, too, to a significant extent involves a recital of what the applicant had to say. The applicant was felt to be subjectively and objectively depressed. He did not show, at that time, symptoms of a sufficient nature and degree to justify a finding of Post Traumatic Stress Disorder, though the Doctor felt he had experienced this prior to commencing anti-depressive therapy.

However, unlike the GP's report, the SPIRASI report does deal with certain physical findings in that it records that the applicant had showed the examining physician two very small scars on his ankles, as well as referring to an irregular raised area over the chest sternal area.

The report is noteworthy as much for what it omits as for what it contains. Unusually, there is no indication whether the doctor was of the opinion that the findings were consistent, highly consistent, or typical of what was supposed to have happened, as is recommended by the Istanbul Protocol.

The Tribunal member took the view that the report did not advance the applicant's case, and felt that the psychological difficulties' relevance was at the humanitarian leave to remain stage. Her approach is criticised on the basis that she paid insufficient attention to such physical findings as there were and for failing to take the view that the psychological difficulties supported the applicant's account of what he had gone through. In my view, the Tribunal member was fully entitled to take the approach that she did. The argument advanced on behalf of the applicant in effect amounts to an invitation to the Court to come to a different conclusion. Whatever might be the situation if this were an appeal, those arguments are not valid in the context of a judicial review.

3. Treatment of Country of Origin Information

The amount of Country of Origin information before the Tribunal was quite limited, largely being confined to one paragraph as follows:

"The source was of the opinion that ex-Hezb-e-Islami including former Hezb-e-Islami commanders do not have any problems with the government in Afghanistan today, if they make it clear that they no longer are working with Hekmatyar. A number of ex-Hezb-e-Islami members occupy high positions within the government. As an example the source mentioned that Hekmatyar's former right-hand currently holds a high position in the government. The present situation taken into consideration, the source found that it depends on the history of a former member of the Hezb-e-Islami whether or not he/she risks being persecuted in Afghanistan. Hezb-e-Islami earlier had a lot of civil servants attached to his group, and the source found it likely that President Karzai has decided to include such former Hezb-e-Islami officials in the government."

It is accepted that the report is generally positive in relation to the position of former members of Hezb-i-Islami. However, on behalf of the applicant it is pointed out that the report contained qualifications and that there was a failure to consider whether any of those caveats applied to the applicant. As in the case of the medical reports, I believe the Court is effectively being asked to substitute its views for that of the Tribunal member, and that is something I am not prepared to do, as it is my view that it was open to the Tribunal member to approach the Country of Origin information in the way she did. The available information was that far more senior figures in the organisation than the applicant had reintegrated successfully and I cannot see that it was unreasonable for the Tribunal member to conclude that the applicant was in no worse position.

4. Identity Documentation / Membership Card

At the oral hearing on November 24^th, 2005, the question of evidence of identity arose as an issue. In the aftermath of the hearing, the applicants then-advisers, the RLS, requested the RAT to defer a decision until identity documents could be obtained. Thereafter, what purported to be the applicant's Hezb-i-Islami membership card was submitted to the RAT, with a translation being furnished at a later stage. While a letter from the RLS dated January 26^th, 2006 had indicated that the arrival of an identity card was awaited, no such document was ever furnished.

The decision refers to the fact that no identity documentation had been furnished. The applicant says that this was an error, and that the party membership card was an identity document. The respondent argues that there was no error, or if there was an error, it was within jurisdiction and ought not lead to the decision being quashed.

The first point to be noted is that the report does not contain any reference to the membership card. It is not clear from the body of the decision whether the card was ever considered, whether it was considered but not regarded as a valid identity document, or whether the Tribunal member entertained doubts as to whether the photo on the card was that of the applicant. A brief comparison between the party card photo and the photo taken of the applicant when he first applied for asylum would leave room for some doubt.

The issue of identity and the absence of identity documents seems to have been a matter of some significant for the Tribunal member, who refers to the issue on a number of occasions throughout the decision, on one occasion going so far as to say:

"There is very little evidence to enable me to assess this claim properly, perhaps most importantly there is no identity information provided by the Appellant, and the account of his travel to Ireland is vague to say the least." (emphasis added)

This is a leave application. It seems to me that the applicant has made out substantial grounds for contending that the treatment of the identity issue was inadequate. A decision had been deferred to allow identity documents to be submitted. A document was submitted which it is certainly arguable amounted to an identity document. Indeed, it is open to argument that it was a particularly valuable and relevant form of identification, in the context of the claim that was being advanced. I take the view that it is arguable that the applicant was entitled to specific consideration of the membership card and that the unqualified statement that no identity information was provided was an error. Given the importance expressly attributed to the issue by the Tribunal member, it is arguable, in the sense that there are substantial grounds for contending that the error – if error it be – is sufficiently fundamental to invalidate the decision.

Accordingly, I am disposed to grant leave on this ground.

Approved: Birmingham J.