Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> E.S. -v- The Refugee Appeals Tribunal & ors [2014] IEHC 374 (22 August 2014)
URL: http://www.bailii.org/ie/cases/IEHC/2014/H374.html
Cite as: [2014] IEHC 374
[New search] [Help]
Judgment Title: E.S. -v- The Refugee Appeals Tribunal & ors Neutral Citation: [2014] IEHC 374 High Court Record Number: 2009 1080 JR Date of Delivery: 22/08/2014 Court: High Court Composition of Court: Judgment by: Mac Eochaidh J. Status of Judgment: Approved |
Neutral Citation [2014] IEHC 374 THE HIGH COURT JUDICIAL REVIEW [No. 2009/1080/J.R.] BETWEEN E. S. APPLICANT -AND-
THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND RESPONDENTS JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 22nd day of July 2014 1. This is a 'telescoped' application for leave to seek judicial review by a Georgian national seeking certiorari of a decision of the Refugee Appeals Tribunal (the "Tribunal") dated 18th September 2009. The decision of the Tribunal proceeded on the basis of a determination on the papers only following a finding under s. 13(6)(a) of the Refugee Act 1996 at first instance dispensing with an oral hearing. The decision of the Tribunal affirmed the recommendation of the Refugee Applications Commissioner refusing the applicant refugee status. Background: Tribunal Decision:
5. The Tribunal also makes a finding pursuant to s. 11B(f) Refugee Act 1996 to the effect that the applicant provided incorrect details as regards how he travelled to the State, claiming first that he travelled by ship via Turkey and latterly admitting that he had flown via Istanbul and Frankfurt. The Tribunal found this undermined the applicant's credibility. Further, in light of this, the Tribunal Member made a finding that the applicant did not provide a reasonable explanation to substantiate his claim that Ireland was the first safe country he arrived in since departing his country of origin. The Tribunal had regard to s. 11B(b) Refugee Act 1996 and found that the applicant's credibility was undermined in respect of his account of his travel to the State. Submissions: 7. In finding that the applicant failed to provide a reasonable explanation for failing to seek the advice of the Refugee Legal Service it is submitted that the Tribunal Member failed to have any regard to the evidence of the applicant at the outset of his s. 11 interview confessing that he had erroneously taken the advice of the woman with whom he was staying at the time. The substance of that evidence was that the applicant had placed his trust in this woman who had organised his travel to the State and had told him to hide certain facts and to present himself in a certain way. Counsel for the applicant states that this confession was not prompted by the applicant being 'caught out' but rather was made voluntarily at the outset of the s. 11 interview. The applicant claims that it was "an egregious breach of fair procedures" for his replies in relation to this issue (which the applicant states the Tribunal ultimately found went against his credibility) to be ignored by the Tribunal, particularly in the situation where there was no oral appeal in this case. The applicant goes on to criticise the finding of the Tribunal in respect of the standard of education achieved by the applicant as being impermissibly broad and vague as well as the nexus between the credibility of the applicant and his education being unclear. 8. With regard to the Tribunal Member's findings that the applicant was in breach of the terms of s. 11B(f) Refugee Act 1996, counsel submits that the explanations provided by the applicant at the outset of his s. 11 interview referred to above are also relevant in relation to this finding. The applicant asserts that any fair minded assessment of this evidence would be that the applicant had 'come clean' in relation to the manner and methods by which he travelled to the State and that an explanation for his previous claims was voluntarily proffered at the outset. In this regard, the applicant urges the court to have reference to Para. 199 of the UNHCR Handbook. 9. Finally, the applicant refers to the finding of the Tribunal Member pursuant to s. 11B(b) Refugee Act 1996. In this regard, the counsel denies that the applicant claimed that Ireland was the first safe country in which he arrived following his departure from his country of origin and that s. 11B(b) was not of application. In any event, counsel submits that the applicant provided a clear explanation as to why he did not apply for asylum en route to the State owing to his dependence on the agent he was travelling with, his inexperience of such travel and his lack of knowledge about claiming asylum. 10. The respondent at the outset makes complaint that the applicant in his submissions relies on a broad number of grounds which are general in nature and lack the particularity required by O. 84 RSC. In focussing on the main grounds critical of the Tribunal's finding, the respondent claims that the applicant failed to produce any country of origin information at first instance or at the appeal stage directly pertinent to or supportive of his claim that he would suffer some form of punishment for evading conscription. Ms. Cogan B.L. notes that the applicant claimed that he had been told by his uncle and friends that he would be severely punished but was not in a position to provide any clear evidence of what such punishment would be or whether it would amount to persecution. 11. In relation to the applicant's claim that the Tribunal failed to explain why the explanation given by him in relation to his failure to seek the advice of the RLS was deemed be unreasonable, counsel refers the court to the decision of Clark J. in MS.A. v. Refugee Appeals Tribunal (Unreported, High Court, 13th October 2009). In that case Clark J. refers to the obligations on an applicant to co-operate with the investigation and to furnish relevant documentation imposed by s. 11C Refugee Act 1996 and states:
12. In respect of the next finding of the Tribunal, the respondent asserts that it is well within its jurisdiction to refer to the terms of s. 11B Refugee Act 1996 and to make negative credibility findings in relation to the manner which false information was proffered in this regard. The respondent denies that any “disproportionate weight” was placed on such findings and notes that the applicant has not supported such a claim with an evidence. 13. Finally, with regard to the Tribunal Member’s finding in relation to s. 11B(b) Refugee Act 1996, the respondent claims that it is implicit in the applicant’s claim for asylum that he maintains that Ireland was the first country in which he could claim asylum. It is asserted that the negative credibility finding reached by the Tribunal in light of the explanation by the applicant of travelling through a number of countries prior to arriving in the State was reasonable in the situation where the applicant did not provide any documentary evidence of his journey. Findings: 15. However, the applicant fails to establish by any objective means (even to the most minimal degree) what negative consequences might befall him should he return to Georgia by reason of his failure to answer the call to military service. The Tribunal Member's observations on this are correct though I would not conclude that the failure thereby undermines credibility. In my view the identified flaw is more associated with a failure to meet what is referred to as the forward looking test as to the likelihood of future persecution rather that a general credibility issue. However this is not a sufficient criticism of the approach of the Tribunal Member to warrant quashing the decision. 16. It is central importance in an asylum claim that an applicant establish a well founded fear of persecution. The requirement that the fear be well founded means that the applicant's fear must be shown to exist subjectively and in addition that there is some objective support for that fear. It is a matter for the applicant to make out both the subjective and the objective elements of the fear in order to persuade the decision makers that the applicant has a well founded fear of being persecuted. Incontestably, the applicant has failed to make out the second element of the claim and this failure has been identified by the Tribunal Member. 17. Two other reasons are stated for refusing refugee status. I accept the argument made that the differences in the accounts of his travel to Ireland are probably peripheral and the resulting negative credibility finding a little harsh. In addition the Tribunal Member's remarks as to the applicant's failure to seek asylum in other countries en route in my view incorrectly state the law as a failure to make an asylum claim in a third country attracts negative consequences only if an asylum applicant claims that Ireland was the first safe country encountered in flight from country of origin (see FT v. Refugee Appeals Tribunal [2013] IEHC 167) and I accept that no such claim was made in this case. 18. In my view the three reasons given for rejecting refugee status are severable inter se and even if some legal error infected the second and third reasons given, the first reason identifying the failure of the applicant to meet the forward looking element of the test is sufficiently robust to overcome the applicant's complaints and I therefore refuse leave to seek judicial review in this telescoped application. ( As to severability of reasons see Talbot v. An Bord Pleanala [2008] IESC 46 and A.A. [Pakistan] v. Refugee Appeals Tribunal (Unreported, High Court, 18th September 2013, Mac Eochaidh J)
|