High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A.K. (a minor) -v- Refugees Appeals Tribunal & ors [2014] IEHC 571 (26 November 2014)
URL: http://www.bailii.org/ie/cases/IEHC/2014/H571.html
Cite as: [2014] IEHC 571
[New search] [Help]
Judgment
___________________________________________________________________________ | ||||||||||||||||||
Neutral Citation: [2014] IEHC 571 THE HIGH COURT JUDICIAL REVIEW [2011 No. 105 J.R.] IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED), IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED) AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1) BETWEEN A.K. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND R.D.) APPLICANT AND
REFUGEE APPEALS TRIBUNAL, MINISTER FOR JUSTICE AND LAW REFORM, ATTORNEY GENERAL AND IRELAND RESPONDENTS JUDGMENT of Mr. Justice Barr delivered on the 26th day of November, 2014 Background 2. In 2007, the applicant’s mother started a relationship with Z, the applicant’s father, and the couple decided to move in together. The couple’s problems started shortly thereafter. Z’s parents called to the house and told them that they should not be living together. When this did not have any result, Z’s father sold the house, leaving the couple homeless. 3. In August 2008, the couple moved to Tiblisi, where they lived in an apartment. Although they had left Akhmeta, their problems continued. The applicant’s mother said that, at first, Z’s family could not find them. However, they did come to Tiblisi. She was threatened by Z’s parents, who told her that she had to leave him. The applicant’s mother stated that her mother-in-law hit her. 4. The applicant’s mother stated that sometimes, when things would get noisy, the neighbours would call the police. The mother stated that the police would call around and help calm the situation. Although Z’s parents would then leave, they would invariably come back to the apartment. The first time that the mother and Z were visited in Tiblisi, it was only Z’s father and mother who came. The next time, the Z’s brother was also present and he hit the applicant’s mother. 5. The applicant’s mother said that on one occasion in August 2008, she was the victim of another assault at her apartment. At the time she was up to three months pregnant. Z’s parents and brother came to the apartment. Z was not present, as he was working in Tiblisi. There was a knock on the door of the apartment. At first, the applicant’s mother did not open it but when she did, the people came into her apartment. The brother-in-law and father-in-law hit the applicant’s mother. She fell down and injured herself. When they left the apartment, the applicant felt that she was in a bad way, so she called a neighbour who came and took her to hospital. At the hospital she learned that she had had a miscarriage. 6. After this event, the applicant’s father and mother decided that they had to leave Georgia. The mother stated that she experienced about four visits from her in-laws to the apartment in Tiblisi. She stated that when her father heard that she had had a miscarriage, he asked her to join him in Ireland. The applicant’s mother and father contacted an agent and made an arrangement to travel to Ireland for the sum of €6,000. The applicant’s mother chose Ireland because her father was living here and he advised her to come to this country. 7. The applicant’s parents travelled to Ireland by plane. They flew from Georgia to Holland and remained in the airport in Holland for about two hours. They then got on a second plane to Dublin. The Parent’s Asylum Claims 9. In relation to presenting the passport at Immigration Control at Dublin Airport, the father claimed that he had never had the passport in his hands. He alleged that the agent apparently showed all three passports to the officials. The Tribunal held that given the procedures relating to immigration and security applied in airports in Ireland and throughout the world, it was not credible that three people could pass through immigration together with one person holding the documents for all three without any questions being asked by security or by immigration officials. If the father was to be believed, the three travelled from Georgia to Ireland, via Holland, without the father once having a passport in his hands. The Tribunal did not find this credible. 10. The father also denied ever having applied for, or obtained, a visa for Ireland or for any other country. Documentation from the Irish Embassy in Sofia showed that the father had applied for and received visas into Poland, the Schengen States and Ireland. The Tribunal held that this documentation contradicted the father’s statements in his questionnaire and at interview to the effect that he had never had any visa. The Tribunal noted that the father had not provided any credible reason for this contradiction. The Tribunal concluded that the father had adduced manifestly false evidence in support of his application and had made false representations, both orally and in writing. The Tribunal concluded as follows in relation to the father’s application:-
These contradictions and manifestly false statements must detract from the applicant’s credibility to such an extent that the Tribunal cannot accept that his claim to be a refugee is well founded. This finding in relation to his credibility must undermine the other claims the applicant makes, in relation to the difficulties he allegedly faced in Georgia.” 12. The mother claimed that she and her partner were accompanied on their journey to Ireland by an agent. The agent, known only as “Dariko”, apparently had possession of all tickets and travel documentation at all times. When it was put to the mother that the rules would require each of them to present their passports individually to the immigration officials, the mother claimed that she never had the passport in her hands. She said that the agent showed all three passports to the officials. Later she changed her evidence to the effect that she was given the passport by the agent to show to immigration, but that the agent took back the passports once they had gone through immigration. Given the contradictions in the mother’s evidence, the Tribunal did not accept this account. 13. There were also similar issues in relation to visa applications. In her questionnaire, the mother stated that she had never applied for an Irish visa. At the hearing before the RAT, she stated that she had never applied for a visa before. She denied ever applying for a visa to enter Poland and she could not recall applying for a visa to enter Germany. The visa documentation from the Irish Embassy in Sofia was put to the mother. She accepted that both these visas and the application for an Irish visa showed a picture that the mother agreed was of her. The mother also agreed that the signature on the Irish visa application looked like hers but denied that it was in fact her signature. When asked for an explanation, the mother suggested that perhaps the agent that facilitated her travel to Ireland had arranged for this documentation. The Tribunal did not find the mother’s explanation credible. It found that it was not credible that a trafficker would forge two visas on a passport and also forge an application form (including a forgery of the applicant’s signature). The Tribunal went on to hold as follows:-
Given the myriad contradictions and manifestly false statements made by the applicant at questionnaire, at interview and at this appeal, the Tribunal also concludes that the applicant has not complied with s. 11C of the Act, and has regard to this, and to the provisions of s. 11B(i) of the Act in assessing her general credibility.” The Applicant’s Claim
A. Yes Q.9 Your claim for asylum and that of your wife have been deemed not well founded by this office, both decisions were upheld by the RAT. This may affect the outcome of your son’s claim. Are there any other reasons that you are seeking asylum on behalf of your son? A. No other reasons.”
18. The second area that was new in the applicant’s claim was the statement made by the applicant’s father at the s. 11 interview in response to the question as to why they could not go to the police if they felt that their son was under threat. The father gave the following explanation:-
20. I am satisfied that this was a reasonable conclusion to reach in relation to the late entry of this evidence into the applicant’s asylum application. If the father’s brother was in the police force and if, as a result, the applicant’s father felt that police protection would not have been available to them, this was something which one would have expected would have been mentioned in the parent’s applications. The Tribunal was entitled to reach the conclusion it did in relation to the emergence of this evidence. 21. The applicant put forward the argument that in making the findings based on the lack of credibility of the parents’ applications, the Tribunal was not making any finding on the “core” claim of the applicant. It was argued that the findings in the parents’ applications were based on a lack of credibility in respect of peripheral matters, such as the issues in relation to the passports and the visa applications, but had not dealt with the core claim which was in relation to attacks on the parents from the father’s family. The applicant submitted that while the Tribunal was entitled to have regard to the decisions in the parents’ cases, it erred in simply following the decisions without making any attempt to address the core claim. 22. The respondent submitted that the applicant’s submissions were based on a misunderstanding of the reasoning of the Tribunal in the decisions relating to the parents. They submitted that it was an error to characterise the Tribunal’s findings in the earlier decisions as relating to matters peripheral to the “core claim”. The respondent submitted that it was clear from a reading of those decisions that the Tribunal did not believe the parents’ claims to be in danger from their family in Georgia, because of the contradictions in their evidence about having passports and visas, the contradictions in the evidence about how they passed through immigration control, and the implausibility of their assertion that they were able to pass through immigration controls with the passports held by a trafficker. While they initially denied ever having held passports, both parents had in fact applied for and had been granted visas to enter Ireland as part of the Georgian martial arts team. In the mother’s decision, the Tribunal also adverted to the omission to produce birth certificates or other documents to prove kinship to the applicant’s father. 23. The Tribunal held as follows with reference to the applicant’s father:-
25. I am satisfied that the submissions of the respondent on this issue are correct. The Tribunal in the parents’ cases held that the contradictions in the evidence regarding the existence of passports, the holding of the passports and the visa applications, all detracted from the applicant’s credibility to such an extent that they affected the whole of the applicant’s story, including the core claim in relation to persecution by the father’s family. 26. The respondent submitted that this Court should follow the decision delivered by Cooke J. in D.M. v. Minister for Justice and Equality [2012] IEHC 225, where he stated as follows:-
… 17. Secondly, it was expressly conceded by each parent that the claim made for the minors was based entirely upon the claims they had made for themselves. Those claims have been definitively rejected in each case for lack of credibility and in the case of the mother by the same Tribunal member as decided the appeals of the minors. In other words, the basic facts and events upon which the parents' claims for asylum were based, have been found incredible and have been rejected on the basis that those facts and events are considered never to have happened as the parents described.”
9. It has not been suggested that there is any other fact, circumstance or consideration peculiar to the child’s claim to asylum that is not part of the mother’s claim. Her prospect of being declared to be a refugee is entirely dependent upon the fate of her mother’s claim. It is true that each claimant is entitled to have his or her claim to asylum subjected to individual examination and decision but that does not mean in the Court’s judgment that the Commissioner is obliged to conduct some sort of pro-forma separate investigation into the potential claim of a three month old child when the claim explicitly made on the child’s behalf is that of her mother and no distinct fact or consideration is put forward as to how or why the child’s risk of persecution is in any way different from that of the parent. This is particularly so where the claim to a fear of persecution is not based on some external threat or on the general conditions in a country of origin to which members of some ethnic or social group are exposed but on the purely domestic, private source of potential harm, in this case, the threats of the father’s family.” 29. I agree with the submission made on behalf of the respondents. Where an application is put forward on behalf of a minor and it is stated to be based on the same circumstances as were put forward by the parents, it is logical that the decision maker will have regard to the decisions put forward on behalf of the applicant’s parents. This approach is in accordance with the dictum of Cooke J. in J.O. v. Minister for Justice, Equality and Law Reform (supra). 30. However, in this case, the Tribunal did not only have regard to the evidence and decisions in the parents’ cases but also had regard to the further issues, namely the issue of delay in making an application and the issue of the father’s brother being a member of the police force such that State protection would not be available. The Tribunal had regard to the additional factors which were unique to the infant’s case. The Tribunal considered those issues and reached conclusions on them. In the circumstances, I am satisfied that the Tribunal looked at the individual circumstances of the applicant. 31. The applicant submitted that two fresh credibility findings made by the Tribunal were made for the first time by the Tribunal and had not been considered or adduced by the Commissioner. Where the appeal was on the papers only, it was submitted that the Tribunal acted in breach of s. 16 of the Refugee Act 1996, as amended, in failing to ask the Commissioner to make further inquiries, or alternatively that the reliance on such findings without affording the applicants an opportunity for rebuttal constituted a breach of fair procedures. 32. The respondent submitted that the findings that the applicant describes as the “two fresh credibility findings” related to the delay in making an application for asylum on behalf of the applicant, and the father’s new allegation that his brother was a policeman, and that each matter was evidentially within the knowledge of the applicant’s parents when appealing to the Tribunal. The applicant’s parents were aware of the time when they applied for asylum on the applicant’s behalf, and the applicant’s father was specifically questioned about the delay in applying for asylum on behalf of the applicant at interview. He claimed alternatively that he could not travel with a young baby, that he had no babysitter, and that he did not have any knowledge about it. 33. The respondent submitted that there was no obligation on the Tribunal to raise with the applicant the possibility of an adverse finding arising from the contradictions in the evidence adduced on his or her behalf or from the matters within his or her own knowledge. The respondent referred to the decision of Mac Eochaidh J. in T.A. & O.J.O. (a minor suing by his mother and next friend, T.A.) v. Refugee Appeals Tribunal [2014] IEHC 204, and in particular to paras. 18 and 19 thereof:-
35. The applicant further submitted that the findings made in respect of State protection were made without any proper consideration in practical terms of the circumstances in which the applicant finds himself. Furthermore, it was submitted that reliance on the failure of the applicant’s parents to contact the police was misconceived in circumstances where the police had been called by their neighbours. 36. The Tribunal found that it was evident from the country of origin information appended to the s. 13 report that Georgia is a democracy, with a functioning police force, subject to appropriate checks and balances and appropriate policing of the police themselves. Even if the applicant’s father’s brother was a police man (which the Tribunal doubted) it was not accepted that the Georgian State was unable to provide protection to the applicant. I am satisfied that this was a finding which was open to the Tribunal and should not be disturbed. 37. The Court is satisfied that the Tribunal’s decision has been lawfully arrived at and is sound in substance. Accordingly, I refuse the applicant’s application for relief herein. |
