High Court of Ireland Decisions

Judgment Title: R. -v- Refugee Appeals Tribunal & Anor

Neutral Citation: [2010] IEHC 510


High Court Record Number: 2008 767 JR

Date of Delivery: 08/10/2010

Court: High Court

1. The applicant, who is a national of Belarus, seeks leave to apply for judicial review of the decision of the Refugee Appeals Tribunal dated the 7^th May, 2008 to affirm the recommendation of the Refugee Applications Commissioner that she should not be declared a refugee. There was a short delay in issuing proceedings after the decision was notified to the applicant but the applicant’s affidavit gives a full explanation and good and sufficient reason has been established for an extension of time.

Background
2. The applicant arrived in Ireland in June, 2004 on a three-month student visa and when it expired she sought to have it renewed but her application was refused. She overstayed her visa and in May, 2006 she applied for asylum. Shortly afterwards she gave birth to her daughter whose father is a Lithuanian man living in Ireland.

3. The Commissioner made a negative recommendation in her case, highlighting a number of discrepancies including a conflict between her account of her brother’s continued imprisonment and country of origin information indicating that only 11 of some 2,000 arrested after the 2006 elections remained in prison after one month. In addition it was found to be significant that she had not mentioned her brother’s imprisonment at her preliminary s. 8 interview and that her explanation for same (claiming that the interpreter failed to translate her answer) was not reasonable. It was also considered that as a non-party member, the applicant would most likely not be targeted and that she had not given a reasonable explanation for failing to apply for asylum at an earlier opportunity.

4. With the applicant’s Notice of Appeal her representatives furnished 15 country of origin (COI) reports. It was submitted that while she was not a party member, she was opposed to the ruling Belarusian regime and that she feared persecution by reason of her political opinion both actual and imputed and also because of her membership of a particular social group comprising persons who claimed asylum or residence abroad. On the day before her oral hearing her solicitors furnished previous, RAT decisions and additional COI reports. At the hearing she produced an empty envelope from her mother which she said had been tampered with.

5. The Tribunal Member made a series of negative credibility findings, as follows

She did not provide a reasonable explanation for her claim that Ireland is the first safe country in which she has arrived since leaving her country of origin – regard was had to s. 11B (b) of the Refugee Act 1996. She provided “vague and non-specific evidence” but had clearly been to Poland, France and Germany.

At the appeal hearing she said she was strip searched when detained in 2004. She had not mentioned this at interview and said this was because she was not asked for much detail and felt uncomfortable talking about it. It was implausible that she would not have mentioned the strip-search at interview with the Commissioner and her explanation for that omission was unreasonable, having regard to her demeanour.

Her evidence in relation to the envelope submitted at the hearing was not credible.

It was not plausible that a fundamental piece of information such as her brother’s imprisonment would be overlooked at her s. 11 interview. The applicant would have had recourse to another course of action if that was the case. The s. 11 process involves the written notes being read back to the applicant and signed by her. She would have had ample opportunity to correct an omission.

Even if the applicant was credible, it would appear that her problems were largely the making of her brother’s and her connection to the alleged incident was too remote, she not being a party member and not having any involvement and having been absent from Belarus for so long.

Grounds
7. Leave is sought on a multiplicity of grounds which may be summarised briefly as follows, that the Tribunal Member:

i. Engaged in inordinate delay;

ii. Made a material error of fact;

iii. Engaged in a flawed assessment of credibility by relying on demeanour;

iv. Failed to consider COI furnished;

v. Failed to consider explanations provided;

vi. Failed to consider a significant element of the applicant’s appeal;

vii. Failed to put concerns to the applicant to afford her an opportunity to address them;

viii Erroneously concluded that her claim falls outside of persons intended to be protected by the Convention; and

ix. Failed to consider adequately previous RAT decisions furnished.

9. The applicant has established substantial grounds in respect of two of these grounds, namely, material error of fact and failure to consider country of origin information.

Mistake of Fact
10. The applicant argues that the decision contains a blatant error that the applicant omitted to mention her brother's imprisonment at her s. 11 interview. This alleged omission was in fact at the preliminary s. 8 interview, the results of which were recorded on the applicant’s ASY-1 form. It is clear from the notes of the interview that she did mention her brother's imprisonment at her s. 11 interview and explained her alleged omission at the earlier s. 8 interview. This error is indicative of a lack of care and of confusion and was material to the decision on credibility.

11. The respondents contend that this error was immaterial and does not render the decision irrational. The core finding, that the applicant failed to mention an important matter at an early stage, stands. It remains quite extraordinary that the applicant did not mention her brother at her s. 8 interview as his imprisonment – possibly in a psychiatric hospital – must have been present to her mind at that time. There has been no reasonable explanation for this omission.

12. There can be no doubt that the Tribunal Member erred in fact in relation to the applicant’s omission to mention her brother. He said that it was implausible that the applicant would not have mentioned her brother’s imprisonment at her s. 11 interview and that it was also implausible that she could blame her interpreter for that omission, given that each page of the s. 11 interview notes was read back to her and signed. The applicant did mention her brother’s imprisonment at her s. 11 interview and in fact she gave a considerable amount of evidence in relation to him and his political involvement at that time. It was at her preliminary s. 8 interview that no mention was made of her brother and she sought to blame the interpreter for that omission. The Tribunal Member accorded significance and weight to the circumstances of an omission that occurred on another occasion in different conditions. In my view there are substantial grounds for arguing that the mistake of attribution between the s. 8 and s. 11 interviews was a material error that undermined the validity of the Tribunal’s reasoning.

Country Of Origin Information
13. The applicant also submits that the Tribunal Member failed to assess her credibility by reference to objective COI. The decision does not refer to this information. It is at least arguable that the Tribunal Member engaged in a credibility assessment without reference to the contents of the 21 COI reports on the situation in Belarus. Those documents set the political and social backdrop in Belarus at the material times. In the applicant’s contention the COI reports are supportive of her claim insofar as they are consistent with her account of the search of her house, her brother’s detention at a post-election rally, his subsequent arrest and disappearance in 2006 and his apparent emergence in a psychiatric hospital later that year. One of several examples of the potentially corroborative nature of the COI is a 2006 U.S. Department of State report which records that the son of a murdered journalist was detained for three months and an attempt had been made to confine him to a psychiatric ward and that a human rights activist had been arrested and sent to a psychiatric hospital.

14. It is arguable that at least some of the COI furnished was capable of supporting aspects of the applicant’s claim. In the circumstances, there are substantial grounds for permitting the applicant to argue that her credibility ought to have been assessed in the context of that COI and that, in omitting to consider the COI, the Tribunal Member acted in breach of fair procedures and in breach of s. 16(16) of the Refugee Act 1996 and Regulation 5(1) (a) of the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006).

Other Grounds
15. The applicant contends that the approximately ten-month period between the hearing and the decision was an unwarranted and unreasonable delay which led to material errors of fact rendering the decision unsound. She relied on my decision granting leave in P. (Y.B.C.P.) v. The Refugee Appeals Tribunal (18^th June, 2010). In P., the Court was prepared to grant leave on a number of other grounds and was satisfied that leave should be granted on the delay point in those circumstances. Here, the applicant has not established any inaccuracy or flaw in the decision arising from the delay and independent of another cause. She has not demonstrated that she was prejudiced by the delay. I accept the respondents’ submission that delay simpliciter is not a ground on which leave should be granted in this case.

16. Substantial grounds have not been established in relation to the 27 previous RAT decisions furnished to the Tribunal. The paragraph rejecting the relevance of those decisions was undoubtedly in a standard form but the Tribunal Member cannot be faulted for the manner in which he dealt with them. As was stated by Geoghegan J. in Atanasov v. The Refugee Appeals Tribunal [2006] IESC 53

“It is not that a member of a tribunal is actually bound by a previous decision but consistency of decisions based on the same objective facts may, in appropriate circumstances, be a significant element in ensuring that a decision is objectively fair rather than arbitrary. […]

A decision that deals with the question of whether refugee status should be granted in a homosexuality situation or in a female circumcision situation, for example, would seem to me to be decisions of “legal importance”. It does not have to be some narrow point of law in the technical sense. On the other hand, there may be many cases that are based on particular facts that do not put the applicant into some particular category and would be of no legal relevance to any other applicant’s case.”

18. Another unsuccessful ground is the claim relating to the failure of the Tribunal Member to put his concerns to the applicant to allow her an opportunity to address them. The applicant complains in particular that he did not put her on notice of his misgivings about her omission to mention at her s. 11 interview that she was strip-searched by customs officials or his doubts as to the authenticity of the envelope she submitted. Pursuant to s. 11A(3) of the Refugee Act 1996, the burden of proof lay with the applicant at the appeal stage to show that she was a refugee. Her credibility was rejected by the Commissioner and she was on proof of her credibility on appeal. A decision-maker is not required to put to an applicant each and every piece of evidence found implausible. “The principle of audi alteram partem does not require the determinative body to debate its conclusions in advance with the parties” (see D.H. v. Refugee Applications Commissioner [2004] IEHC 95 per Herbert J.). The principle was clearly enunciated by McMahon J. in P.S. v. Refugee Applications Commissioner [2008] IEHC 235

“[…] the obligation on the relevant body is an obligation to give ‘a reasonable opportunity’ to the applicant and that the obligation arises only where the relevant matter is ‘important to the determination’ so that the applicant will have the opportunity to respond. Clearly, not every matter must be put to the applicant or to her advisors. It is not incumbent on the Commissioner after every question is answered to say to the applicant:- ‘I am not sure I believe your answer. It may be when I assess the matter fully and examine the evidence in its totality that I will reject your answer to this question. What do you say to that?’ It is quite clear to all who participate in this exercise, especially where the applicant is assisted by legal advisors, that the application will be at risk if the applicant is not believed, and that the principal onus of proof lies on the applicant, who is in appropriate cases to be given the benefit of the doubt.”

20. The applicant’s complaint of a failure to assess her fear of persecution as a person who had resided and applied for asylum abroad is also lacking in substance. It is clear from the decision that the Tribunal Member was aware of that aspect of her claim because he summarised the submissions made by counsel. While no express consideration was given to that element of her claim in the analysis section, it does not follow that this renders the decision unsound. The COI reports were not supportive of that aspect of the applicant’s asserted fears.

21. A further failed ground relates to the question of remoteness. The Tribunal Member expressed the view that, even if the applicant had been credible, her problems were largely the making of her brother and her connection was too remote. This was an alternative finding. The Tribunal’s affirmation of the negative recommendation was essentially based on his finding that the applicant was not credible. The alternative finding on remoteness, even if flawed, could be severed from the decision without consequences as to its validity.

22. The applicant argues that the Tribunal Member failed to base his comments about her demeanour on a rational or cogent basis and that he failed to consider explanations she gave for apparent inconsistencies in her evidence. The UNHCR Guidelines on Interviewing Applicants for Refugee Status (RLD4) accept that while demeanour has a limited value in terms of assessing credibility owing potentially to cultural and gender influences, “This is not to say that demeanour is irrelevant, far from it.” The UNHCR warns against the use of demeanour as a determining element in credibility assessment but there does not appear to be any evidence that demeanour was considered determinative in this case. The Tribunal Member’s summary of the claim and the evidence at the hearing shows that he was cognisant of her explanations for discrepancies and there is no evidence that he ignored them and he expressly put his concerns in relation to a number of those explanations to her.

IIEConclusion
23. I propose to grant leave on the following grounds:

(1) That the decision of the Tribunal was based on a material error of fact that undermined its validity in law; and

(2) That the Tribunal erred in law in failing to consider the applicant’s case by reference to relevant country of origin material that was submitted on her behalf.