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Cite as: [2012] IEHC 283
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Judgment Title: B.K -v- Patrick Hurley Acting As Refugee Appeals Tribunal & Ors Neutral Citation: [2012] IEHC 283 High Court Record Number: 2008 978 JR Date of Delivery: 17/07/2012 Court: High Court Composition of Court: Judgment by: McDermott J. Status of Judgment: Approved |
Neutral Citation Number: [2012] IEHC 283 THE HIGH COURT JUDICIAL REVIEW [2008 No. 978 J.R.] IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED), AND IN THE MATTER OF THE IMMIGRATION ACT 1999, AND IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1) BETWEEN B. K. APPLICANT AND
PATRICK HURLEY ACTING AS REFUGEE APPEALS TRIBUNAL RESPONDENT MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, FIRST NOTICE PARTY IRELAND AND ATTORNEY GENERAL SECOND NOTICE PARTY
JUDGMENT of Mr. Justice Paul McDermott delivered the 17th day of July, 2012 1. Introduction
1.3 In the course of the interview carried out pursuant to s. 11 of the Refugee Act 1996, on 12th December, 2007, the applicant stated that he believed that his life was in danger in Kosovo because he was a member of the Gypsy/Ashkali minority. He provided further detail of the shooting incident as follows:-
2. The Shooting 2.2 It was clear by this stage from the Refugee Applications Commissioner’s decision that any independent evidence supportive of the applicant’s account would be of importance to his appeal. The s. 13(1) report states the following in relation to the state of the medical evidence:-
2.4 In dealing with the applicant’s description of the shooting, the respondent stated:-
2.6 The respondent also made adverse findings against the applicant in respect of his credibility on a number of other matters. 3. The Date of the Alleged Incident
A. I said 2004, it was 24th March, 2004. Q. I took down 27th March, 2007. A. Sorry, but the trouble was 24th March, 2004. I cannot forget the date of the incident.”
4.1 The applicant claimed that the shooting in 2004 was ethnically motivated. He claims to have been shot and that the person or persons who shot him also shot at his father when he emerged for assistance. His claim for asylum was substantially based on that specific incident. The respondent carried out an analysis of the applicant’s claim. 4.2 The country of origin information submitted in the form of a United Nations High Commission for Refugees (UNHCR) report, confirmed that inter-ethnic rioting broke out in Kosovo on 17th March, 2004. It was stated that protests began at Lipjan on 17th March, as large crowds of ethnic Albanians began to gather and tried to enter the Serb village of Suvi Do but were stopped by authorities. They then turned their attention to the Serb neighbourhoods of Lipjan. The UNHCR report stressed the historic animosity between the Serb community and the Albanian community in Kosovo and detailed attacks by Albanian mobs against Serb homes in Kosovo and the Lipjan area. The report set out details of attacks on Ashkalis in the immediate aftermath of the NATO bombing of Serbia and the return of ethnic Albanians to Kosovo. It spoke of violence, intimidation and forcible expulsion of Roma and Ashkali but not for the period covered by the applicant’s account. It noted, however, that the applicant made no claim that he had been the subject of violence or intimidation. There was no reference in the materials available to the respondent concerning disturbances occurring in Lipjan on 24th March, 2004. The applicant’s case is that the disturbances started in Lipjan on 17th March, and continued to 24th March, 2004. The Tribunal concluded that the applicant’s account was not supported by country of origin information. 4.3 The Tribunal also had regard to what he described as the historic and geographical inconsistencies and inaccuracies in the detail provided by the applicant in the course of interview as set out in the s. 13 report when his replies were measured against exact country of origin information. In the s. 13 report it is noted that the applicant had failed to provide accurate details of the rioting that had occurred on 17th and 18th March, 2004. He failed to give a valid reason for his lack of knowledge of details of those events. He claimed to be a member of the Ashkali minority but it was noted in the report that when asked a number of questions about basic facts concerning the Ashkali minority, his answers exhibited a dearth of knowledge. 4.4 Though the applicant had lived in Lipjan as a boy and claimed to have suffered schoolyard taunts and occasional beatings from other schoolchildren, usually Albanian Kosovars, he remained at the local school from 1990 to 1998. He lived in the family home with his parents and sisters until his departure in 2007. There was no specific complaint of any further incidents of violence, harassment or intimidation in the years following the shooting. 4.5 The applicant claimed to have a very serious injury resulting from the shooting which resulted in blood haemorrhaging from his leg. He claimed to have survived in this condition without receiving medical attention for 24 hours. The respondent deemed this account to be implausible. However, in the original questionnaire, the applicant stated that the shooting occurred shortly after 9.15pm on the evening of 24th March, 2004 and that he was treated on the following morning when he was brought to a private doctor to remove the bullet. It would appear that in finding that the applicant had delayed some 24 hours, that the respondent was in error. 4.6 The respondent commented on the applicant’s claimed motivation for the shooting in the following terms:-
5. Judicial Review 5.2 In summary, leave was granted on the basis that the respondent made his decision on 28th June, 2008, before the expiration of the time allowed by him for the furnishing of a medical report in violation of the applicant’s right to fair procedures (Ground 1). Secondly, leave was granted on the basis that the respondent made material errors of fact and did not take certain evidence into account, which ought to have been, in reaching his conclusions in respect of the credibility of the applicant’s claim and these were of such a nature as to be unreasonable and fundamentally flawed (Grounds 2, 3 and 4). 6. Ground 1 – the Medical Report 6.2 I am satisfied that this was a determination by the respondent as to what was required to ensure that the applicant’s right to fair procedures was observed in respect of the determination of the issues before him concerning whether the applicant had been shot as claimed by him. 6.3 It is admitted that the respondent’s decision was signed and dated 28th June, 2008 (a Saturday), prior to the expiration of the fourteen days allowed. There is no evidence before the court as to why this decision was taken within the period of fourteen days. A curious feature of the respondent’s decision is that notwithstanding the fact that it is made on 28th June, 2008, it refers to the fact that no further medical report had been received from the respondent between the 17th and 28th June and then refers to the fact that the respondent had allowed the applicant until the 30th June, 2008 (the following Monday) to submit medical reports. In fact the fourteen days period did not expire until 1st July, 2008. Even if a medical report had been received within the subsequent three days, the decision had already been made, signed and dated. In the body of the decision, the respondent noted that the applicant had not, at the date of the hearing (17th June, 2008) produced medical evidence to substantiate his description of the very serious injury he had received in the shooting. Whilst it is clear that the applicant was given an opportunity to submit medical reports, the respondent made his decision in advance of the expiration of his own deadline in that regard. 6.4 I am satisfied that the respondent in making his decision of 28th June, 2008, prior to the expiration of his own deadline was in serious error. He failed to observe the fundamental fair procedures which he himself thought appropriate for the hearing and determination of the case. It is of concern to the court that the decision was finalised by the respondent in the knowledge that the time had not expired. This is clear from the text of the decision. Though no further medical report was furnished by the respondent within the period allowed, such a report would no longer have been relevant to the decision making process because the decision had already been made. The court regards this as a very serious breach of fair procedures. The court in exercising its jurisdiction must have regard to its overall supervisory role in relation to quasi judicial tribunals. It is significant in this case that no explanation is offered in the evidence furnished to the court as to why this happened. 6.5 It is obvious that the determination of issues raised in appeals to the Refugee Appeals Tribunal have potentially serious consequences for the rights and lives of applicants for asylum. It is essential for the credibility, integrity and independence of the Refugee Appeals Tribunal that its own procedures and rulings are observed and applied by the Tribunal in the course of its work. It is of particular importance that the impression is not given in any particular case that there has been a determination of an applicant’s claim unless and until the applicant has been afforded an opportunity to make his case in accordance with the Tribunal’s own procedures. Unfortunately, that did not happen in this case. I am satisfied, therefore, that the respondent in making his decision on 28th June, 2008, acted in breach of fair procedures. 7. Grounds 2, 3 and 4 – Material Errors of Fact 7.2 Firstly, the applicant in his description of the shooting contained in the s.11 interview had given the date of its occurrence as the 27th of March, 2007. This was at variance with the date previously given of 24th March, 2004. In the same interview the applicant had corrected himself immediately and the court is satisfied that the reliance placed upon this error by the respondent as undermining the credibility of the applicant’s account of the occurrence of the shooting was unwarranted. 7.3 Secondly, the respondent found as implausible what he regarded as the applicant’s account that he had not sought or received medical treatment for a severe wound to his leg for a period of 24 hours, in circumstances where the wound was said to have been haemorrhaging blood. On a reading of the papers it is clear that the respondent was in error in relation to the 24 hour period insofar as the applicant states the shooting occurred at approximately 9.30pm in the evening, and that he was able to obtain medical assistance with the aid of his family the following morning in a local clinic. This finding is given further importance by the respondent in that it is assessed in the context of the failure of the applicant to produce a further medical report within the further time allowed him as discussed in relation to the applicant’s first ground. 7.4 Thirdly, the applicant complains about the finding by the respondent that the shooting incident as described did not indicate that it was deliberate or that the applicant was a random victim in the inter-ethnic disturbances that took place in March, 2004. The respondent concluded that the applicant’s description suggested “a random shooting”. The applicant complains that this finding did not take account of his account that his father was shot at when trying to come to his aid. It is, therefore, submitted by the applicant that this finding was unreasonable. 7.5 It must be noted that there was other material available to the respondent which he thought important. The country of origin information available to the respondent contained a UNHCR report confirming that there had been inter-ethnic rioting at Lipjan on 17th and 18th March, 2004. There was no record of any eruption of violence on 24th March, 2004. The applicant made no complaint of any further act of violence, intimidation or harassment between the 24th March, 2004, and the time he left Kosovo in August, 2007. The respondent noted that the applicant had produced no documentation which corroborated his account or might identify him. There was no allegation of any other attack upon or provocation offered to his family. The respondent also had regard to the inability of the applicant to give an account of the origins of the Ashkali ethnic group and some contemporary facts concerning that group. This was regarded as further undermining the credibility of the applicant and tending to detract from his claim. 7.6 In this regard the court is mindful of its role in an application for judicial review. This is not a court of appeal. The court’s role is confined in a case such as this where a finding of lack of credibility is attacked to ensuring that the proper legal procedures have been followed by the decision-maker in arriving at that conclusion. It is clear from the determination of the respondent that he had regard to the various factors set out at s. 11(B) of the Refugee Act 1996, and those requirements set out at Regulation 5 of the European Communities (Eligibility for Protection) Regulations 2006, which provide for further matters to be taken into account and guidance as to how certain issues are to be approached. 7.7 A person who seeks a declaration that he is a refugee must establish that he is outside his country of nationality by reason of “a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion…” and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. Section 11A(3) of the Act states that where an applicant appeals against a recommendation of the Commissioner under s. 13, it shall be for him or her to show that he or she is a refugee. 7.8 In I.R. v. Minister for Justice, Equality and Law Reform and Refugee Appeals Tribunal [2009] IEHC 353, Cooke J. summarised some of the guidelines which emerge from the case law relating to the process of the assessment of credibility in applications for asylum. Cooke J. emphasised that in the course of a judicial review of such decisions the function and jurisdiction of the High Court was confined to ensuring that the process by which the determination was made was legally sound and not vitiated by any material error of law, the infringement of any applicable statutory provision or of any principle of natural or constitutional justice. Firstly, the decision-maker had to determine whether the applicant demonstrated a genuine fear of persecution for a convention reason – a subjective fear. Secondly, the decision-maker had to assess whether that subjective fear was objectively justified or reasonable and thus well founded. He continued at paragraph 11:-
5) A finding of lack of credibility must be based on correct facts, untainted by conjecture or speculation and the reasons drawn from such facts must be cogent and bear a legitimate connection to the adverse finding. 6) The reasons must relate to the substantive basis of the claim made and not to minor matters or to facts which are merely incidental in the account given. 7) A mistake as to one or even more facts will not necessarily vitiate a conclusion as to lack of credibility provided the conclusion is tenably sustained by other correct facts. Nevertheless, an adverse finding based on a single fact will not necessarily justify a denial of credibility generally to the claim. 8) When subjected to judicial review, a decision on credibility must be read as a whole and the court should be wary of attempts to deconstruct an overall conclusion by subjecting its individual parts to isolated examination in disregard of the cumulative impression made upon the decision-maker especially where the conclusion takes particular account of the demeanour and reaction of an applicant when testifying in person.” 7.10 The applicant also complains that the respondent considered this account of the shooting to be implausible because he did not seek medical attention for a period of 24 hours despite the fact that he was haemorrhaging from the wound sustained. In fact the period between the alleged shooting and medical intervention was considerably less. The applicant remained without medical attention between approximately 9.30pm on the 24th March, 2004, until the morning of the 25th. The respondent considered that to have survived such a wound in the absence of medical attention for 24 hours was implausible. This conclusion was incorrect: the period before treatment was considerably less than 24 hours. However, that might not be regarded necessarily as detracting from the respondent’s conclusion that it was still a considerable period to remain without treatment whilst suffering a very heavy loss of blood. 7.11 The applicant also complains that the determination by the respondent that the shooting was random, did not take adequate account of the fact that his father was also shot at. He further complains that country of origin information in relation to persecution and the ethnic hostilities in the area of Lipjan in March, 2004 at other times was not adequately considered by the respondent. 7.12 I am satisfied that the court must make its assessment of the decision-maker’s findings on the basis of the principles quoted from the judgment of Cooke J., above. The decision of the respondent must be viewed as a whole. There is a danger that in isolating one or two facts in the respondent’s decision one might be led to ignore other important findings. For example, the respondent thought the applicant was lacking in credibility in relation to his knowledge of the history and nature of the Gypsy/Ashkali minority group. He had little detailed knowledge of the outbreak of ethnic violence in Lipjan, his home village, on the 17th and 18th March, 2004. He had no documentation to support his identity. He had remained living in Lipjan with his family from the date of the alleged shooting until his arrival in Ireland in August, 2007. He made no complaint of any episode of violence, harassment or intimidation in the period following the shooting up to the date of his departure. The country of origin information suggested that the Gypsy/Ashkali minority was not in need of international protection in an assessment made by the UNHCR in June, 2006. 7.13 I am not satisfied that the challenge to the determinations of fact made by the respondent has established that the respondent acted unreasonably and/or irrationally in drawing inferences from all of the material and evidence that was before him. This included the oral testimony of the applicant. The respondent was in a position to assess his credibility by virtue of his demeanour and his responses to questioning. The respondent set out in detail various matters which he concluded detracted from the applicant’s credibility. The reasons given by the respondent for his conclusion related to matters which were of substantial importance to the applicant’s claim and which were the subject of investigation, particularly through the country of origin information available to him. I accept that he erred in drawing an unwarranted inference from the inconsistency in the applicant’s evidence concerning the date of the alleged shooting. However, I do not consider that that error, of itself, vitiates the conclusion of the respondent as to lack of credibility in respect of the other matters considered. 7.14 In respect of Grounds 2, 3 and 4, I am not satisfied that the applicant has succeeded in demonstrating that the respondent acted unreasonably or irrationally or so considered or failed to consider the materials and/or evidence in this case in such a way as to render his conclusion so fundamentally flawed as to warrant an order of certiorari on those grounds. 8. Discretion 8.2 Counsel on behalf of the respondent accepts that the decision was made prior to the expiration of the time set for the delivery of any medical reports to be submitted on behalf of the applicant. However, he also submitted that no prejudice accrued to the applicant as a result of this premature decision. It is submitted that the applicant did not within the period of fourteen days and, in particular, in the period between the 28th June and 1st July, 2008, submit any medical report to the respondent for his consideration. No application was made within that period for an extension of time within which to deliver a medical report. Therefore, it is submitted that since no medical evidence would in fact have been submitted within the balance of the extended period of fourteen days, there was no prejudice to the applicant. It was also submitted that the applicant had been notified of the decision on or about the 17th July, 2008, and that no effort had been made up to that date to submit a medical report or seek an extension of time to do so. 8.3 It is clear that no further medical evidence was furnished to the Tribunal in the remaining period of the fourteen days available or at any time following the 28th June, 2008. This is dealt with in the affidavit of the applicant in the following way:-
8.5 The substance of the respondent’s decision is to the effect that the applicant’s account of the shooting on the 24th March, 2004, was not credible. Though the court is not satisfied to grant an order of certiorari on the basis of Grounds 2, 3 and 4 as set out above, which essentially relate to the assessment of facts concerning the credibility of the applicant, the court has a duty to ensure that the process by which the decision was reached was fundamentally fair. I am concerned that the respondent felt at liberty to reach a decision in respect of the issue of credibility prior to the expiration of the period that he himself had allowed for the furnishing of a medical report or reports which, had they been forthcoming, might have been crucial to the determination of that issue. No explanation for this occurrence has been furnished to the court in the affidavits filed on behalf of the respondent. I am particularly concerned that the respondent made his decision on the 28th June, 2008, in the knowledge expressed in his decision that time still remained for the furnishing of medical reports. Indeed, it is difficult to see what purpose could be served by the furnishing of medical reports after the 28th June, 2008, as the decision had already been made. The pre-determination of the appeal in advance of the time set by the respondent was the antithesis of fair procedures. 8.6 I am satisfied that it would not serve the integrity and credibility of the asylum process if this decision were allowed to stand. 8.7 The court will, therefore, grant the order of certiorari sought to quash the decision of the 28th May, 2008, and remit the matter back to the Refugee Appeals Tribunal to be re-heard by a differently constituted Tribunal.
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