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Cite as: [2008] IEHC 228

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Neutral Citation: [2008] IEHC 228

THE HIGH COURT

2006 718 JR

BETWEEN

H. R.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

EX TEMPORE JUDGMENT OF MR. JUSTICE BIRMINGHAM delivered on the 29^th day of May 2008.

By way on an introductory remark, I would observe that this is a somewhat unusual case in a number of respects. As a result, it seems to me that this is a case which to some extent is heavily dependent on its own facts and is unlikely to prove of much assistance as precedent in other cases. I do not find this an easy case to decide but notwithstanding that, I am giving this ex tempore judgment. I hope that this will not be thought to be discourteous to the arguments that have been advanced by counsel, but this is not a case that raises any new legal issues and it does not seem to me that probing deeper and deeper into the documentation would be particularly advantageous. Indeed, there would be the risk, I think, that one would simply be tempted to take on the role of the Tribunal Member. It is for that reason that I have decided to give this judgment here and now.

The Issues in the Case

In this case, Charleton J. gave leave to the applicant on 7^th March, 2008 to challenge a decision of the Refugee Appeals Tribunal ("RAT") dated 24^th May, 2006. Leave was granted on two grounds. Charleton J. rejected the other grounds on which leave was sought. The two areas where leave was granted relate to:-

a. The applicant's contention that the Tribunal Member engaged in unwarranted speculation that the applicant's husband may have been engaged in criminal activity; and

b. A finding by the Tribunal Member that it was not credible that the State would ask the applicant's husband to assist in a murder conspiracy.

Insofar as there have already been a number of references to the applicant's husband, I should say that I propose to refer from time to time to the applicant in the present case and her husband jointly as "the applicants." The husband of the present applicant had his own claim for asylum which was rejected. There was, in the course of the present proceedings, some reference to the decision on his application. It is for that reason that I will be referring from time to time to "the applicants", notwithstanding that there is only one applicant in the case now before the Court.

(a) Speculation and Conjecture

Of the two grounds in which leave was given, I can deal very quickly with the first challenge. In reading the Tribunal decision, I cannot see anywhere that the Tribunal Member engaged in speculation. The height of the applicant's case in this regard was a comment by the Tribunal Member that there may be some reason, other than the reason advanced, for any unusual interest on the part of the authorities in the applicant's husband. It seems to me that what the applicant does, effectively, is to read that sentence as code for the fact that the Tribunal Member had formed a particularly adverse and sinister view of the applicant's husband. Later, in the closing paragraphs of the decision, the Tribunal Member posits a series of scenarios that he says are open and could be consistent with the facts alleged to have occurred. However, far from speculation or far from engaging in conjecture, these possibilities were introduced in the context of saying conjecture was impermissible. In fact, the Tribunal Member was saying that the applicant could only obtain a favourable ruling as a result of conjecture.

(b) Findings on Credibility.

The remaining issue is much more difficult to resolve. At the outset, I should say that the RAT decision is an extremely comprehensive one and was very obviously approached in a very conscientious manner by the Tribunal Member. Length is not, of itself, a virtue, but the decision is among the most elaborate and comprehensive that I have come across, and the Tribunal Member deserves nothing but commendation for the way in which she approached her task.

I commented at the outset that this was an unusual case. That is so in a number of respects. First of all, in terms of the country of origin, the Ukraine has not - at least in my experience in recent times - given rise to many asylum applications. Secondly, the applicant and her husband claim to occupy positions of prominence in Ukrainian society and in the professional world there. In that regard, it is also unusual that comprehensive identification documents, including certificates in relation to professional qualifications, were produced. Given the precise and specific information about the applicants and specific information about a number of individuals with whom the applicants interacted, one would have thought that elements of the claim were likely to be capable of being independently and objectively verified, or indeed capable of being disproved objectively. To that extent, the Tribunal Member found herself in an unenviable position and, possibly, an unnecessary one.

In terms of the facts of the case, the applicant states that she is a gynaecologist. Her husband is also a medical consultant. Essentially, three elements or staging posts form part of the claim. The facts are very comprehensively set out in the Tribunal decision over some 18 pages and I will not repeat them in any great detail. However, by way of brief summary, the position is that the applicant's husband was apparently interested in thyroid cancer, possibly because his father died from cancer. In the aftermath of the Chernobyl disaster, he became interested in the question of whether there was a relationship between that disaster and the incidents of cancer. He engaged in an amount of research on that topic and, it appears, published an article in the Chernobyl Medical Journal on the subject. He says that the authorities actively discouraged any research on the topic of the link between Chernobyl and incidents of cancer, and that his actions in pursuing his research and publishing brought him to the attention of the authorities. So it was that in 1997 he came under pressure from the authorities, his house was searched, documents were seized. In these circumstances, it is said that he went to the United States on a study exchange programme.

The Tribunal Member found it incredible that the applicant's husband would have been facilitated in travelling overseas if he had incurred the displeasure of the authorities. He would, indeed, have to have been facilitated in travelling overseas on a study visit, given that he was working for a State agency. The Tribunal Member's conclusions in that regard were initially the subject of challenge but that ground of the challenge was rejected by Charleton J., who refused leave in that regard.

The second incident, which occurred in 1999, is perhaps the least central of the three. The suggestion is that the applicant's husband was suspected of assisting three people in crossing to Poland. Apparently he, himself was a regular traveller to and from Poland. This led to the applicant's husband being detained for a period and once more coming under adverse notice.

The third incident is the most significant, and is the one with which we are primarily concerned today, in that it was the one that was of most direct relevance to the issue that the Tribunal Member had to determine. This third incident led to the departure of the applicant's husband from the Ukraine in 2003. The immediate background to this departure is that it is suggested that in his role as a consultant in the hospital, he was treating a prominent member of parliament, a Mr Petru Smalyuk. As the treating physician, it is said that he came under pressure from the security forces of the State to kill the MP or, at the very least, to withhold treatment so as to prevent his patient's recovery. It is the applicant's case that her husband resisted that pressure, and instead took flight and he came to Ireland where, as I have already indicated, he submitted a claim for asylum that was unsuccessful.

Following the departure of her husband, the applicant and her two children were subjected to ill-treatment in a number of respects. She details those instances both in respect of herself and in respect of both children. They are set out in detail in the RAT decision.

The pressure to which it is said the applicant's husband was subjected is central because if it is deemed credible, then much of what is alleged to have happened after her husband's departure from the State could be regarded as explicable. It is suggested that this trigger was formed by the pressure to which the applicant's husband was subjected. If this trigger was regarded as incredible, then the claim was doomed. It must be said that the Tribunal Member found the claim incredible. In essence, she noted that the applicant's husband was a medical doctor who was obviously not sympathetic to the authorities and was obviously independent minded, as shown by his determination to pursue a programme of study and research that was frowned upon by the authorities. In those circumstances, the Tribunal Member found it hard to see why the security forces would pick the applicant's husband to join this conspiracy.

These proceedings, in essence, are based on a challenge to the manner in which the Tribunal Member dealt with that topic. Both sets of legal submissions referred, in a very careful manner, to a number of authorities on the question of how the court is to approach considerations of credibility by a Tribunal Member. In truth, there does not seem to be any major disagreement between the parties as to the principles that apply. On behalf of the applicant, reliance is placed on the decision of Clarke J. at the leave stage in Imafu v. The Minister for Justice, Equality and Law Reform & Anor [2005] IEHC 182, who refers with approval to the approach taken in a number of English cases and in particular, by Mr Pannick Q.C. in R. v. Immigration Appeal Tribunal ex parte Sardar Ahmed [1999] I.N.L.R. 473. Ironically, the respondents find comfort in the substantive decision of Peart J. in Imafu v. The Minister for Justice, Equality and Law Reform & Anor [2005] IEHC 416.

It seems to me that what emerges from those decisions is that first of all, conclusions in relation to credibility and certainly adverse conclusions in relation to credibility have to be based on something more than gut instinct. They have to be based on a rational analysis which is capable of being objectively considered. I suppose the competing consideration is that the court, when asked to engage in judicial review, has to be careful not to be trapped into the situation of substituting its own views for those of the Tribunal Member, because obviously it is the Tribunal Member that, by statute, is vested with the task of deciding credibility.

The question of how the Tribunal Member dealt with country of origin information is of significance. First of all, it can be said, perhaps with certainty, that the Tribunal Member did not ignore country of origin information. The Tribunal Member referred to, and indeed grounded some of her conclusions and analysis in, that country of origin information. She took from that information the belief that life was relatively cheap in the Ukraine. This caused her to question:-

"Why, if it was possible to kill with relative ease, why would it be necessary to recruit someone who they regarded as disloyal or hostile to the authorities and unlikely to be sympathetic to the security forces?"

In a situation where, as she said, it would appear that there had been unlawful killings and where life was cheap, she poses the further question:-

"Why, if the security forces wanted this prominent MP dead, would they fail?"

It certainly is not the case that the country of origin information was ignored. However, it remains to be considered whether the Tribunal Member applied the country of origin information to the alleged facts of the case that were before her, in order to determine if the account that she was being presented with was plausible.

Mr Ó Dúlacháin, Senior Counsel on behalf of the applicant, says that the Tribunal Member fell into error in that she essentially applied the standards of a country based on a rule of law to a country where, at the time, it is suggested that the security forces were not so constrained. He further contends that the Tribunal Member, having made that error, considered the question of whether it was plausible that the events that were supposed to have occurred could occur in a country subject to the rule of law and then say:-

"Is it plausible that it occurred in the Ukraine?"

The country of origin information certainly establishes that at the time, the security services engaged, at least from time to time, if not more than that, in conduct that was fundamentally unacceptable. In the year under consideration in the US State Department document, which is 2004, four deaths that caused concern are highlighted. None of those deaths are clear-cut or straightforward, and that is perhaps of some significance. In respect of each of them, to a greater or lesser extent, there has to be some element of doubt and some difference of opinion as to what was the cause of death. Two of the deaths involved persons of particular prominence; one a university rector, and the other a figure in the broadcasting media. In each case the suggestion is that the death occurred in circumstances which left one wondering as to whether the death was as a result of natural causes or whether the death was as a result of the actions of assailants.

When reading the country of origin information, it does seem to me that if one took the view that the security forces harboured ill-will against a prominent politician, then it is not unlikely, on the basis of that country of origin information, that they would want to take action, and not unlikely that if they did take action they would want to conceal their involvement. This raises the question; is it all that implausible that security forces - which on these hypotheses are ill-disposed towards a prominent politician - would see an opportunity in the illness of that politician? Would they see scope for an opportunistic intervention? If they saw that illness as an opportunity, is it all that implausible that they would see a doctor who had twice come under adverse notice; to that extent they might see as amenable to pressure as a possible agent?

It seems to me that the court, in a case like this, has to be particularly careful to avoid speculation or conjecture. It would be all too easy, as Mr Ó Dúlacháin commented, to stray into the land of John Le Carré and find oneself in the business of guessing and second guessing and bluffing and double bluffing. Nevertheless, it does seem to me that these issues arise for consideration on the country of origin documentation.

On balance, I feel that the treatment of the documentation was inadequate and that, notwithstanding the care with which the Tribunal Member clearly approached her task, it does seem to me that there may have been elements of jumping to conclusion and, in particular, reaching conclusions by reference to what would be likely to happen in a state based on the rule of law when the suggestion is that the State under consideration was not such at the time.

It is only right to say that the country of origin information does not all go one way. For example, there is reference to the fact that citizens of Ukraine have the opportunity to bring cases to the ECHR. Indeed, several such cases were brought in the year under consideration, a number of them involving findings against the State. Equally, while there is a reference to the fact that the Office of the Human Rights Ombudsman feels itself to be under-funded and, as a result, not as effective as it should be, it appears that that body has had some significant successes in areas including improving prison conditions.

On the issue of the role of the security forces at the time, however, it does seem to me that the documentation raises the question of whether it is possible or probable that, given ill-will towards a prominent politician, the security forces would have been ill-prepared to act against that individual. In those circumstances, it seems to me that if the matter goes back for a further hearing, both sides will have the opportunity to produce further details of the case. I would note in particular that the applicant says that she and her husband were prominent and that the MP who came under threat - and by coming under threat indirectly led to her husband's departure - was a very prominent figure. That being so, there should be no difficulty now in obtaining verification of aspects of the case. Was the MP in question a patient under the care of the applicant's husband? I do note in that regard that it appears some form of hospital certificate was produced accompanying the Questionnaire in the case of the husband's application. Did the MP approach the applicant, as is suggested? That is a matter that now should be capable of being established one way or the other. Does the applicant's husband have a record of his publications? Has he published on thyroid cancer? Can a copy of the edition of the publication in which the article is supposed to have appeared be obtained? Indeed, can information be obtained about the journal in which the article is supposed to have appeared? The list of matters capable of being verified - and, it seems to me, are capable of being readily verifiable - that I have mentioned are not exhaustive. There are certainly others, and probably many others.

It seems to me that the interests of justice are best served if the applicant is given an opportunity to re-canvass these matters. In those circumstances, I propose to give the applicant that opportunity, which involves quashing the decision.

Approved: Birmingham J.