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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M.A.A. -v- Refugee Appeals Tribunal & Ors [2014] IEHC 492 (02 October 2014)
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Cite as: [2014] IEHC 492
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Judgment Title: M.A.A. -v- Refugee Appeals Tribunal & Ors Neutral Citation: [2014] IEHC 492 High Court Record Number: 2010 382 JR Date of Delivery: 02/10/2014 Court: High Court Composition of Court: Judgment by: Barr J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 492 THE HIGH COURT JUDICIAL REVIEW [2010 No. 382 J.R.] IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 BETWEEN M.A.A. APPLICANT AND
REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENTS JUDGMENT of Mr. Justice Barr delivered on the 2nd day of October, 2014 Background 2. The applicant stated that armed militias used to come to his house and attack him and his family. The applicant states that he himself was never physically attacked or threatened, as he was a child. 3. The applicant claims that some time in 1998, on a date that he cannot remember, his family was attacked by an armed militia. On this occasion, the militia killed his father and other members of the family. The applicant was shot in the leg and lost consciousness. He states that when he regained consciousness approximately one day later, he was in a pharmacy, where he had been brought by a neighbour. The applicant alleges that one day after regaining consciousness, another neighbour travelled with him on a bus out of Somalia and they went to the border with Ethiopia and there he took another bus which brought him to Addis Ababa. The neighbour apparently brought him to a family which comprised of an elderly woman and a son and her daughter. The applicant lived with them for approximately one year. The applicant states that after approximately one year, the family that he was staying with all decided to leave Ethiopia. They did not bring the applicant with them. The old lady gave the applicant the sum ofUS$200. He put this money into a safe compartment in his trousers. After this time, he lived on the streets of Addis Ababa for a period of around three years. The applicant states that he did not spend the sum of US$200 which had been given to him but kept it in his secure pocket. 4. The applicant claims that although he encountered some "chaotic people" while living on the streets in Ethiopia, no one threatened him directly. He was able to save around US$400 from the proceeds of his begging. He used this money together with the US$200 which had been given to him to travel to Aden in Yemen. The applicant stated that he spent three years in Yemen but he did not apply for asylum there. He did not work but continued to beg on the streets. The applicant gave an account of being enslaved by people from Yemen who had forced the applicant to clean their houses in return for money which was not forthcoming. After three years, the applicant left Yemen and made his way to Jeddah in Saudi Arabia. 5. In Saudi Arabia, the applicant obtained work in a car washing facility. He also used to sleep there on mats which had been left out. He lived in Jeddah for a period of three years. 6. A customer whose car the applicant used to wash, arranged for the applicant's departure from Saudi Arabia to Ireland. In return for arranging the applicant's travel, the applicant was asked to pay US$4,000. The applicant stated that he managed to raise this money having received some US$2,000 from relatives of his who lived in Europe who sent the applicant the money and that as a result of his own work he was able to pay the balance of the money. 7. The applicant claims that he left Saudi Arabia by plane on the night of 28th September, 2008. He stopped in an unknown country en route and arrived in Ireland on 29th September, 2008. The applicant states that having arrived at Dublin Airport, he was taken by the agent and put on a bus to Belfast where he was abandoned. The applicant claims that he spent a period of some two days living on the street in Belfast before he was allegedly arrested on a sea boat. The applicant's account in relation to this arrest is difficult to follow. He stated that he had bought a ticket to enable him to go on the boat but he thought this was only going to another part of the city of Belfast. However, when he got on the boat he was told that he was entering another country. It was at this point that he was arrested and taken to a camp in Belfast where there were some Somalis and they apparently told him to seek asylum. The applicant stated that he applied for asylum in Belfast. He states that he stayed in the city for a period of one month before being deported from Belfast to Dublin on an aeroplane. 8. The applicant had a Yemeni passport in the surname of B.S. The applicant denied that this was his name. Attached to the passport was a valid visa authorising entry to Ireland to enable the passport bearer to study English. The applicant stated that he was unaware of this. The UK authorities had informed the Irish authorities that the Yemeni passport used by the applicant to travel to Ireland was a valid one and that this indicated that the applicant was in fact a national of Yemen. The applicant claims that he told the authorities that this was not his passport and that he was simply using it to travel to Ireland. The applicant denied ever having been to Riyadh while he was allegedly living and working illegally in Saudi Arabia. 9. It was put to the applicant that a visa application using the applicant's photograph and signature were submitted to the Irish Embassy in Riyadh and that this application had been made on 30th August, 2008. The applicant denied any knowledge of this and claimed that he never made any contact with the Embassy there. It was put to the applicant, who admitted that he had completed his questionnaire himself, that the visa application bore the same signature as that to which the applicant had signed on his own questionnaire. The applicant denied that they were the same. It was put to the applicant that notwithstanding his denial that the signatures were not the same, they looked similar. The applicant continued to deny that the signatures were similar. The Language Analysis Report 11. Having carried out the language analysis, the reporting company set out the following summary of its findings:-
13. The RAT returned to the question of the Yemeni passport. The applicant denied that his name was that shown on the passport. It was put to the applicant that there was a valid visa attached to this passport for the purposes of entering Ireland to enable the passport bearer to study English. The applicant replied that he was unaware of this. Further, the UK authorities had informed the Irish authorities that the Yemeni passport used by the applicant to travel to Ireland was a valid one and that this indicated that the applicant was in fact a national of Yemen. The applicant claims that he told the authorities that this was not his passport and that he was simply using it to travel to Ireland. 14. The applicant denied ever having been to Riyadh while he was allegedly living and working illegally in Saudi Arabia. It was put to the applicant that a visa application using the applicant's photograph and signature were submitted to the Irish Embassy in Riyadh and that this application had been made on 30th August, 2008. The applicant denied any knowledge of this and claimed that he had never made any contact with the embassy there. It was put to the applicant, who admitted that he had completed his questionnaire himself, that the visa application bore the same signature as that to which the applicant had signed his own questionnaire. The applicant denied that they were the same. It was put to the applicant that notwithstanding his denial that the signatures were not the same, they looked similar. The applicant continued to deny that the signatures were similar. 15. The Tribunal noted that in light of the unequivocal nature of the information provided by the United Kingdom authorities to the Irish authorities in relation to the applicant's name and nationality together with the similarity between the signatures on the copy visa application form and the applicant's own questionnaire, it was clear to the Tribunal that the applicant's assertion relating to the passport, to the visa, and to his signature on various documents, was simply not capable of being believed. 16. The Tribunal had great difficulty in believing that the applicant could have saved the sum of money which was necessary arising out of his activity begging, or working in the car wash facility. The applicant stated that he had saved approximately US$2,000 and that the remainder for his travel to Ireland was supplied by relatives living in Europe, in particular living in the Netherlands. It was put to the applicant that among the application details for the visa which were contained in the passport which the applicant used to travel to Ireland, a fee of €2,520 was found to have been paid to an English language school in Dublin to enable the applicant to attend a full time English language course at the Centre of English Studies in Dame Street, Dublin. The applicant claimed that he was not aware of any money paid to this school or fees that may have been paid. He stated "I am not aware of how much the agent paid for anything". The Tribunal came to the conclusion that the figures effectively did not add up and taking into account, the applicant's account of how the money was allocated, it would appear, as found by the Commissioner, that the agent would have been left with very little money for services rendered by him and to enable the applicant to travel to Ireland. 17. The Tribunal noted that the applicant was asked at various parts of his interview why he had not sought asylum in any of the countries where he claimed to have lived for various periods of time. The applicant maintains that he did not know about asylum. However, the applicant was able to say that his relatives in the Netherlands had fled from Somalia after the civil war had started and they had sought asylum there. The applicant was asked, in light of this, why had he stated he did not know about asylum or refugees at the time he entered this jurisdiction in September 2008. The applicant in reply claimed "these people, they sought asylum a long time ago where they live now and I don't know how to seek asylum when I came here". The Tribunal stated that this was "simply nonsensical". 18. The Tribunal dealt with the language analysis report in the following terms:
Conclusion The Tribunal has considered all relevant documentation in connection with this appeal including the notice of appeal, country of origin information, the applicant's asylum questionnaire and the replies given in response to questions by or on behalf of the Commissioner on the report made pursuant to s. 13 of the Act. Accordingly, pursuant to s. 16(2) of the Act, I have found the recommendation of the Refugee Applications Commissioner made in accordance with s. 13 of the Act. " 20. The main thrust of the applicant's complaint in relation to the RAT decision, was that the Tribunal Member erred in concluding that the language analysis report had to be considered in the light of the applicant's overall account and was therefore undermined by the member's findings regarding the applicant's general lack of credibility. The applicant submitted that the report was an objective piece of information based upon an objective methodology and its findings stand irrespective of the other subjective findings in relation to the applicant. Thus, it was argued that irrespective of those credibility findings, the Tribunal was still, in the light of the language analysis report procured by the Commissioner, faced with an appellant who, on the basis of objective findings, bore the indicia of a member of the Reer-Hamar who lived in the Mogadishu area. As a member of such a clan, the applicant was, on the Tribunal Member's own acknowledgment, vulnerable to attack and persecution. 21. The applicant accepts that the findings of the language analysis report are not conclusive of the issues before the Tribunal, or that its findings can never be displaced or undermined, but it was submitted that if it is to be undermined or displaced, it must be done by evidence which refutes its conclusions regarding the applicant's dialect, language and/or local knowledge or by evidence which points to an error in the analyst's methodology or conclusions and not merely, as here, by general evidence tending to point to a lack of credibility. It was argued that in this case, the Tribunal Member had effectively found that the applicant could not be believed and refused the appeal on that basis. That finding, however, does not impact upon the objective findings of the language analysis report. The Tribunal Member did not treat the language analysis report as objective information before her which she must consider separately and which is independent of and unaffected by her credibility findings in relation to the applicant. It was submitted that it was encumbent upon a Tribunal Member to consider that objective information separately, and, if rejecting it, to set out the reasons for so doing. 22. The applicant relied in this regard on the judgment of McDermott J. in AMN v. Refugee Appeals Tribunal [2012] IEHC 393, in relation to the consideration of medical reports which were before the Tribunal. The learned judge stated as follows in the course ofhisjudgment:-
28. The applicant submitted that the respondent did not act in accordance with the principles set out in the case law cited above. It was alleged that she erroneously regarded the objective findings in the language analysis report as undermined by her general credibility findings. It was submitted that in rejecting the conclusions and/or corroborative effect of that report, she did not engage in the proper assessment and weighing process of this document and the other evidence before her, nor did she provide any proper reasoning for her rejection of the findings of that report. It was submitted that a brief, almost tangential reference to a document as crucial as this positive language analysis report is not sufficient and does not meet the standards set out in the case law. It was submitted that had the respondent considered the content of the report in an appropriate manner then, as in the judgment of Clark J. in N.M. (Togo), her other negative findings would not have assumed the same significance. 29. It was submitted on behalf of the applicant that the first named respondent failed to determine all relevant issues in the context of the appeal, namely the core issue of nationality and ethnicity of the applicant. In that regard, the applicant relied upon the decision of Cooke J. in E.S. v. Refugee Appeals Tribunal [2009] IEHC 335, where the learned judge said:-
'While the burden of proof in principle rests with the applicant, the duty to ascertain and evaluate all relevant facts is shared between the applicant and the examiner. Indeed, in some cases it may be for the examiner to use all means at his disposal to produce the necessary evidence in support of the application. ' The ambiguity and uncertainty in the Contested Decision in this case lies in the fact that on the one hand it gives the clear impression that the Tribunal Member comes to the same view as the authorised officer in the Section 13 Report namely, that the applicant is not a national of Zimbabwe, but the decision contains no conclusion to that effect in express terms. " 31. The applicant argued that while both the applicant's ethnic background and his nationality go to the core of his claim, the Tribunal Member in this instance had determined neither issue, relying instead on credibility concerns about peripheral issues. It was further submitted that in failing to make any determination in relation to the core of the applicant's asylum claim, the Tribunal also violated another of the principles set out by Cooke J. in I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 353 in which the learned judge stated as follows:-
33. It was further argued on behalf of the applicant that his denial that his signature was similar to the signature on the application form for a visa to come to Ireland, the Tribunal Member erroneously recorded his response when this issue was raised by the Refugee Applications Commissioner. The applicant, who contends that he did not fill in the form, stated that the signatures were not the same. The response on the part of the applicant is entirely consistent with his evidence that the agent took all the steps necessary to obtain the visa, a state of affairs which must have included filling in the application form and signing it, and copying the applicant's signature in so doing. Once again, it was submitted by the applicant in this regard that this information assumed an undue significance and weight in the context of the applicant's appeal by reason of the flawed method by which the Tribunal Member considered the language assessment report. It was further submitted on behalf of the applicant that the Tribunal Member had erred in stating that she had to rely on "general information questions to attempt to establish the applicant's nationality". The language analysis report procured by the RAC was clearly particular information corroborative and supportive of the applicant's assertion that he was a Somali from the Mogadishu area and of the Reer-Hamar ethnic group. In that regard, it was contended that the first named respondent had failed to have regard to relevant considerations. It was contended on behalf of the applicant that in making that statement to the effect that it is difficult to determine whether people who speak Somali are actually from Somalia and from a stated area of Somalia; the member failed to have regard to the evidence in the report to the effect that the applicant's dialect is spoken in a particular area of Somalia from which he claims to come, and also to the degree of local knowledge displayed by the applicant. 34. It was submitted that in the Sprakab report, it was stated that the applicant had a good knowledge of the area that he said he came from. The report notes that the applicant spoke of well known buildings and places in the city district such as markets, schools, hospitals, hotels and roads. He also provided the names of other city districts found in Mogadishu, named traditional food dishes and holidays celebrated in the area and spoke of the population of the areas and which clans most of them belonged to. As far as his knowledge of the Reer-Hamar dialect is concerned, the report notes that the applicant has a pronunciation and inclination typical of the form of Somali, of the Reer-Hamar dialect spoken in southern Somalia such as in the Mogadishu area. It was also noted that the applicant constructed words and sentences in a manner typical of the dialect and used certain words and expressions common in the dialect also. It was also noted that the report did not make reference to any other areas in which that dialect is spoken or ethnic groups used in the form of Somali used by the applicant. 35. The applicant submitted that the first named respondent did not at any time refer to the detailed local knowledge shown by the applicant, a fact which if taken into account and considered would have countered the generalised observations made by the Tribunal Member as follows:-
The Respondents' Submissions
40. The respondents cited the following extract from "Judicial Review of Administrative Action -A comparative analysis" by Prof. Hillary Biehler, where she observed at p. 94:-
what has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the court holds a decision invalid on the grounds now invoked It is not enough that a consideration is one that may be properly taken into account nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision. The distinction between mandatory and discretionary consideration is therefore an important one and the courts cannot interfere in cases where there has been a failure to take into account a consideration which a decision making body is not obliged to take into account. "
44. The applicant accepted that the findings of the language analysis report were not conclusive with regard to the appeal before the Tribunal Member. However, his submissions advanced the case that there were objective findings which could not be displaced by the credibility findings of the Tribunal Member. The respondent noted that it was difficult to see how the applicant's argument in this regard could be reconciled with the principles applicable in a judicial review which have been outlined above. It is clear that the Tribunal was well aware of the difficulties in terms of identifying nationality of a person claiming to be a Somali national. The Tribunal Member correctly stated that the ability to speak Somali did not mean that the person concerned was a Somali and/or from a stated area of Somalia and/or that the person concerned was forced to flee for reasons related to their particular clan. The Tribunal Member noted:-
46. It was submitted that it was abundantly clear that the case being made related to the weight attached by the Tribunal Member to the report. As stated in Scrollside by Denham J., this was "quintessentially a matter for the specialist body". A court should be very reluctant to interfere with the weight attached by a decision maker in a body such as the Refugee Appeals Tribunal to any aspect of the evidence. 47. The respondents submitted that the next issue to be considered was that of utility. It was stated that it was crucial to note that the decision will not be quashed where the alleged failure to take into account a relevant consideration (or taking into account of an irrelevant consideration) would have made no difference to the decision. The respondents relied on the case of Health Service Executive v. Information Commissioner [2009] I.R. 700, at p. 718, relating to the refusal to remit a decision to the Information Commissioner where the remittal would only result in the reformulation of conclusions and would have no impact on the substance of the Commissioner's decision. 48. The respondents stated that it was clear that even if the applicant meets with the considerably elevated standard of proof to demonstrate that the decision maker attached insufficient weight to the evidence concerned (such that no reasonable decision maker would have come to the same conclusion), the applicant must also show that the remittal of the matter to the Refugee Appeals Tribunal would be such as to lead inevitably to a different decision being rendered. 49. The respondents stated that there was nothing before the court to show that this could possibly be the case. The impugned decision was notable for the very considerable emphasis placed by the decision maker on the evidence regarding the Yemeni passport and the applicant's signature. This matter was clearly at the core of the decision. Whilst the decision maker does not in any sense exclude the possibility of the applicant having a Somali background, it was submitted that it was clear that the decision maker accepted that the applicant was a Yemeni national. In this regard, the following passage was of crucial significance to the determination:-
52. The respondents submitted that it was quite clear that any decision to remit the matter for reconsideration would not lead to a different conclusion given the unequivocal nature of the Tribunal's findings with regard to identity and nationality and could at most lead to a decision where the decision maker would simply say that the applicant clearly has a Somali background. That, of course, is something that is expressly accepted in relation to claims of Somali nationality/ethnicity/background, in general by the decision maker at the outset of the decision. Extension of the Statutory Time Limit 54. On 23rd February, 2010, Mr. Searson sent a letter to the RAT asking it to set aside the decision herein on a number of bases set out in his letter of request. He sought to utilise this informal procedure which had been established in order to avoid the delay and expense of litigation. On 2nd March, 2010, the first named respondent indicated that it did not propose to vacate its decision. 55. In the circumstances, it was then necessary to seek a legal aid certificate authorising the receipt of counsel's opinion. However, before that process could be undertaken, it was necessary to receive the requisite legal aid contribution from the applicant. The applicant forwarded this sum by postal order once he was contacted for that purpose and it was received in the Dublin office of the Refugee Legal Service on 9th March, 2010. 56. When this contribution had been received, Mr. Searson applied for a legal aid certificate for counsel's opinion. The certificate was granted on Friday, 1ih March, 2010. Mr. Searson thereafter arranged for a brief to be prepared for counsel and same was forwarded to counsel on Monday, 15th March, 2010. Mr. Searson believes that counsel received the brief on 16th March, 2010 and that as the offices of the Refugee Legal Services were closed the following day, counsel reverted on 18th March, seeking additional information. Mr. Searson states that the said information was forwarded on Friday, 19th March, 2010 and that counsel thereafter forwarded a written opinion by electronic mail over the weekend of 20th/21st March, 2010. 57. On Monday, 23rd March, 2010, Mr. Searson applied for a legal aid certificate authorising the institution of the within proceedings and that same was granted on or about Tuesday, 24th March, 2010. He arranged for the applicant to attend at the judicial review unit of the Refugee Legal Service on 26th March, 2010, for the purpose of giving final instructions with the assistance of a Somali interpreter for the purpose of confirming the content of the draft pleadings herein and amending same as appropriate. 58. While it is not clear from the papers submitted to the court, it would appear that the necessary motion issued on or about 26th March, 2010, which is the date on which Mr. Searson swore his affidavit. 59. In the circumstances, it is clear that the applicant did not institute the within proceedings within the 14 day time limit set down s. 5 of the Illegal Immigrants (Trafficking) Act 2000. However, I am satisfied having regard to the chronology of events as set out in the affidavit sworn by Mr. Searson that there are good and sufficient reasons why the time period should be extended so as to enable the applicant bring the within proceedings. In particular, I note that there was delay in obtaining a legal aid certificate and further that there is no undue prejudice to the respondents by virtue of the relatively short delay which occurred in this case. 60. Accordingly, I extend the time within which the proceedings herein could be instituted up to and including the date of issue of the notice of motion herein. Decision 62. The Tribunal Member noted the content of the language analysis report, but held that it had to be seen in the context of the applicant's story as a whole. The Tribunal Member found the story given by the applicant as being lacking in credibility. 63. The content of the language analysis report had to be seen in the context of the evidence from the UK authorities to the effect that the Yemeni passport in the possession of the applicant, which contained a visa permitting entry into this State, was a valid passport. 64. In these circumstances, the Tribunal Member had to weigh the various pieces of evidence including the language analysis report. This was a matter for the Tribunal Member. She considered the language analysis report in the context of the entire story told by the applicant. I am not satisfied that the Tribunal erred in her assessment of the various strands of evidence in this case. The language analysis report was not conclusive of the issues for determination before the RAT. While it was a clear piece of evidence supportive of the applicant's story, it did not establish that the applicant was a Somali national. Nor did it corroborate the applicant's account of leaving home after an attack in 1998 and his various occupations since that time. 65. The Tribunal Member was entitled to come to the conclusion that the applicant's story was lacking in credibility in relation to how he earned the money he needed to fund his journey to Ireland and his explanation of his arrest on board a ship in Northern Ireland. She was also entitled to have regard to the evidence from the UK authorities in relation to the passport and the visa being valid. It was a matter for her to decide what weight should be attached to the language analysis report. I can find no objection to the approach taken by the Tribunal Member to the evidence in this case. Accordingly, I refuse the applicant's claim for relief herein.
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