H101
Judgment Title: A & Ors -v- Refugees Appeal Tribunal & Anor Neutral Citation: [2012] IEHC 101 High Court Record Number: 2009 978JR Date of Delivery: 01/03/2012 Court: High Court Composition of Court: Judgment by: Cross J. Status of Judgment: Approved |
Neutral Citation Number: [2012] IEHC 101 THE HIGH COURT JUDICIAL REVIEW 2009 978 JR BETWEEN S.A., L.D., S.M. (A MINOR), E.D. (A MINOR SUING BY THEIR NEXT FRIEND AND MOTHER S.A.) APPLICANTS AND
REFUGEES APPEAL TRIBUNAL AND MINISTER FOR JUSTICE AND EQUALITY RESPONDENTS JUDGMENT of Mr. Justice Kevin Cross delivered the 1st day of March, 2012 1. This is an application for leave to seek judicial review of a decision of the first named respondent (“the Tribunal”) dated 13th August, 2009, in which the Tribunal Member affirmed the reports and negative recommendations pursuant to s. 3 of the Refugee Act 1996 (as amended) of the Office of the Refugee Applications Commissioner (“ORAC”). 2. Ms. Saul Woolfson, of counsel appeared for the applicants and Mr. Anthony Moore, of counsel, appeared for the respondents. Background 4. The first named applicant asserted that after the “Rose Revolution”, members of the Ministry for the Interior attacked her outside her home, shot bullets through her window, made threatening phone calls and attempted to abduct her son. She asserts that while she was hiding in a remote region of Georgia, her husband disappeared. It later transpired that he was detained by unknown men, who beat him and injected him with drugs, as a result of which he apparently developed Hepatitis C. He managed to escape in April 2006, and underwent treatment for his injuries. The applicants left Georgia together with the assistance of a trafficker in April 2007 after paying him $30,000. The Decision of the Tribunal
(b) As the first named applicant would be categorised by the country of origin information as a low to medium level member or activist affiliated with the previous government, she was not likely to encounter persecution by the State authorities and her fear was therefore not well founded. (c) Adverse credibility findings were made in relation to an alleged discrepancy in the first named applicant’s evidence as to whether she had been summonsed to the Interior Ministry or not. (d) Adverse credibility findings were made in relation to the first named applicant’s apparently inconsistent statements regarding her rank or position within the party. (e) Adverse credibility findings were made in relation to the first named applicant’s entrance passes to a citizen’s union meeting as they were different versions of her name. (f) Adverse credibility findings were made in relation to the applicant’s account of travel to and arrival in the State and s. 11B(c) of the Refugee Act 1996 (as amended) was invoked. (g) As the medical reports produced by the first and second named applicants were not in line with the Istanbul protocol, they were not considered to corroborate or support their claims and hence did not alter the Tribunal’s views of the applicants’ credibility. 6. I have been furnished and have considered the affidavits herein and the exhibits as well as submissions and authorities of both the applicants and the respondents. The Applicants’ Arguments 8. Furthermore, Mr. Woolfson argued that everything that has a bearing on credibility must be considered in credibility determinations. Drawing on the decision of Cooke J. in I.R. v. RAT [2009] IEHC 353 (Unreported, High Court, 24th July, 2009), he stated that when documents that had a bearing on credibility are rejected by a decision maker, he is obliged to “set out on a rational and cogent basis the reasons for rejection of such documentation”. 9. Counsel also argued that the Tribunal Member incorrectly relied on demeanour in circumstances where he failed to outline what it was about the first named applicants that caused him to view her demeanour in a negative light and this reliance on demeanour was further compounded by the delay in determining the appeal. 10. The applicants argue that they were not obliged to seek assistance from the State as the State was responsible for their persecution. 11. The applicant further asserted that the Tribunal was incorrect to rely upon one report to the exclusion of a fair and balanced assessment of all available country of origin information. The applicants asserted that the UK Home Office Guidance Note was unreliable as it was a policy document of a foreign government. 12. The applicants then argued that the Tribunal Member completely failed to consider or assess the minor applicants’ applications that were independent and distinct from their parents. The Respondent’s Arguments 14. Mr. Moore then proceeded to outline why the Tribunal Member was correct in making the adverse credibility findings in relation to the applicants. For example, regarding the different names on entrance passes, he argued that this was not something that could be explained by translation difficulties. 15. The respondents stated that a decision maker does not have to refer to all the evidence before him when deciding a case. In this he relied on Clarke J. in the decision of Zada v. Refugee Appeals Tribunal (Unreported, High Court, 7th November, 2008):-
17. The respondents fully disputed the allegations of the applicants relating to the use of country of origin information. The respondents urged that these documents are essential to the asylum process as they provide clear guidance in the main types of claims that are likely to justify the grants of asylum, humanitarian protection or discretionary leave. The Court’s Assessment
20. The credibility points that were most disagreeable to this Court are as follows. 21. Firstly, regarding the discrepancy over whether the applicant was summonsed to the Interior Ministry or not, it appears as stated by Mr. Woolfson that the Tribunal Member and the first named applicant were entirely at cross purposes; the former misused the term of the correct Ministry and the latter, while seeking to correct him, did so in a manner that implied that she was altering her story. However, the first named applicant was correct in her denial to the Tribunal Member and the adverse credibility finding that she suffered was simply wrong. 22. Secondly, regarding the Citizen’s Union of Georgia, the political party and the entrance passes, this Court agrees with the explanation as proffered by Mr. Woolfson that “Sopiko”, “Sopo” and “Sopio” may well be as interchangeable as “Paddy”, “Pat”, “Patrick” and “Podge”. It may not be obvious to someone not from Georgia that all these differences of spellings would amount to the same person. The names are largely colloquial in nature. To hold that the applicant is not credible because of such differences in her name is to leap to an unwarranted conclusion. Even more unwarranted is that the Tribunal Member used this credibility finding to doubt the first named applicant’s membership of the Citizens Union of Georgia. 23. The respondent argued that given the first named applicant appeared for the most part to go by the name “Sopiko” it would not make sense for her to use an abbreviated form of her name on political entrance passes thus the Tribunal Member was, it was argued, entitled to doubt the authenticity of the documents and by inference to doubt the first named applicant’s membership of the party. 24. The court cannot accept such an explanation for two reasons (i) there were other documents available that supported the first named applicant’s membership to the party; and (ii) the applicant’s own birth certificate and that of her children list her as “Sophiko” while her marriage certificate lists her as “Sopiko”. Nowhere as a result of this discrepancy, was it ever suggested or could it ever be suggested, that the first named applicant was not married to the second named applicant or that she was not the mother of the third and fourth named applicants. It appears that the Tribunal Member placed too great an emphasis on the importance of two entrance passes in circumstances where it is quite clear that the first named applicant went by different versions of her name on official State documents. The Tribunal Member then proceeded to cast doubt upon the first named applicant’s membership of her party which as stated is clearly a conclusion that is unwarranted. 25. Thirdly, regarding the applicants’ travel and entry to the State, this Court would again disagree with the determination of the Tribunal. The first named applicant provided a very detailed account of the condition of the ship, her interaction with the agent (the trafficker) and the environment in which she travelled, in fact she went so far as to vividly described odours and the colour of the blankets in the sleeping quarters. This could not be described as “vague and unspecific”. 26. Fourthly, regarding the first named applicants allegedly inconsistent statements regarding her position within the party, the court does not accept that these statements were in fact inconsistent and were anything other than a miscommunication as opposed to a calculated intention to mislead the Tribunal. 27. An ancillary but related issue of credibility was the Tribunal Member’s reliance upon the demeanour of the first named applicant. This Court accepts the necessity for a decision maker to rely upon demeanour when assessing the credibility of an applicant. However, this reliance, particularly in the asylum process must be approached with caution. In H.R. v. RAT (Unreported, High Court, Cooke J. 15th April, 2011), Cooke J. in his judgment at para. 7 stated in the context of reliance on demeanour by a Tribunal Member the following:-
29. Whereas credibility decisions must “have regard to” the criteria as set out in s. 11B of the Refugee Act 1996 and the findings must also be based on a rational analysis that explains why in the view of the decision maker the truth has not been told and must also be based on reasons which bear a legitimate nexus to the adverse findings, where credibility decisions are based upon demeanour, there is no requirement that the decision maker must specify the aspects of the witnesses demeanour e.g. “hesitation” or the “shifty appearance” that led him to the conclusion. Indeed, to impose such an obligation upon the decision maker would be to force a formalistic approach such as may be imagined in a witness giving evidence as to drunkenness reeling off “his eyes were bleary, he staggered as he walked and there was a smell of drink from him…etc.”. 30. In the present case, the Tribunal Member’s use of demeanour when determining the truth of the summons to the Interior Ministry is an example of basing credibility and demeanour upon an erroneous assumption. The Tribunal Member stated:-
31. The Minister must rely upon the contents of the file without the benefit of any personal interaction with the applicant. For this reason, the RAT must take great care in reference to its findings on credibility and demeanour as adverse findings may only serve unfairly to influence the Minister. 32. The court does not accept that the contention on behalf of the applicant that a six months gap between the appeal and the delivery of the decision would be considered a sufficient delay so as to discredit any findings including those findings of demeanour. It is to be hoped that the court does not move in an unreal world. A decision maker, who is minded to make adverse findings based partly on demeanour would, if acting fairly and lawfully (as the court must assume to be the case unless the contrary is shown) have taken notes at the time of the hearing and would not be trying to recollect matters after a gap of six months. Clearly, to attempt to recollect demeanour after a six months delay with no notes or assistance would be entirely unfair and wrong. 33. The court is of the view that much was incorrectly made of the manner in which the applicant’s evidence apparently conflicted with the country of origin information. It is for the Tribunal Member to determine what evidence he considers reliable and what he does not. In the instant circumstances, the decision maker preferred the “objective” report to what he considered were the applicants who wholly lacked credibility. In this regard, the decision maker concluded that as the first named applicant was a “low to medium” ranking member of the party that she and her family were not at risk. The decision maker apparently discounted the applicant’s story of persecution because he had made adverse credibility findings against her and because her story conflicted with the country of origin information. 34. Whether country of origin information viewed in the light of credible candidates would result in a different determination is not for this Court to speculate. The first named applicant may well find it easier without wading through a number of adverse credibility findings to establish that she was sufficiently close to such medium to high ranking party officials and known to be associated with them so as to attract the alleged persecution which is of the core of her application. 35. Several other matters were raised before this Court that did not relate nor were impacted by the credibility determinations of the Tribunal and I would now address these accordingly. 36. It is the opinion of this Court that the applicants were correct when they asserted that the Tribunal Member did not consider the specific documentation submitted by them with the relevant care required by him during the course of his deliberations. In that regard, two instances come to mind. 37. The first relates to the apparent discrepancy over the summonses to the Ministry. This apparent discrepancy could have been resolved in a positive light had the Tribunal Member reviewed the contents of the summonses, which at all times supported the evidence of the first named applicant. Instead he made a very damming adverse credibility finding. The second concerns the entrance cards which the Tribunal Member commented referred to the applicant by different first names and that it would have been preferable had the first named applicant validated her membership of the party in another way. In point of fact, the applicant did produce additional identity documents to verify her membership. Had these further documents been considered they could have fully validated her party membership and indeed could have led to a different finding in relation to credibility. 38. As we are only at the leave stage, the court will refrain from analysing the entire contents of the file for additional discrepancies or for determining what probative documents, if any, were discarded without reason or merit. It is sufficient for present purposes that this Court would find these two instances as described are enough to question and doubt the approach taken by the Tribunal Member when reviewing the documentation before him. 39. The court holds that the second named applicant had indeed a detailed and personal account separate and distinct from that of his wife, the first named applicant. The Tribunal Member failed to adequately or indeed at all, consider the second named applicant’s particular set of circumstances and this is evident from the total lack of consideration the Tribunal Member played to his account of events in particular his abduction. 40. The court also holds that the Tribunal Member failed to consider the separate and distinct claims of the third and fourth named applicants. The substantive analysis carried out by the Tribunal Member was done exclusively by reference to the particular claims of the mother, the first named applicant and took no account of the independent claims of the minor children. This is demonstrated by the total lack of reference to either of them in the operative part of the decision. 41. It was argued on behalf of the respondents that the mother did not represent the applicant children as having any fear of persecution over and above the one advanced by her and by her husband. It is the view of this Court that this is not true. Their parents specifically spoke of their concerns for their children and also provided an account of the manner in which somebody apparently attempted to abduct their son. Furthermore, the important of having a separate and distinct determination was articulated by Cooke J. in F.G.W. and F.S. (A Minor) v. RAT (Unreported, High Court, 5th May, 2011) and [2011] IEHC 205 where at para. 9 he stated:-
43. All reports whether they issue from an NGO or a government body or indeed a respected international organisation are, or may be, tapered by some form of bias and it is open to the Tribunal Member, as the decision maker, to accept or reject the contents of the report(s) before him. If this Court were to accept Mr. Woolfson’s contention we would be left in the unhappy and very much unfavourable position of having no information not personal to the applicant to rely upon. This would result in an unworkable situation and in the opinion of the court, it was not unreasonable on the Tribunal Member to rely upon UK Home Office Reports. The difficulty in this case, however, was that these reports indicated that “low to medium” members of the previous ruling political party were not at risk and the decision maker used that fact in conjunction with other adverse credibility findings, to doubt the case being made by the first named applicant and led the Tribunal Member not to consider the case being made that she was targeted for harassment because of her association with a leading member of her party. Conclusion
(b) that the decision of the Tribunal failed to give adequate consideration to the relevant documentation before it; (c) that the Tribunal failed to consider and/or adequately consider the second named applicant’s personal circumstances in particular his alleged abduction; and (d) the Tribunal failed to give separate consideration to the claims of the third and fourth named applicants. |