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Cite as: [2015] IEHC 268
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Neutral Citation: [2015] IEHC 268 THE HIGH COURT JUDICIAL REVIEW [2010 No 1231 J.R.] BETWEEN A. D. APPLICANT AND
THE REFUGEE APPEALS TRIBUNAL (CONSTITUTED OF PAUL CHRISTOPHER, TRIBUNAL MEMBER) AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENTS JUDGMENT of Ms. Justice Faherty delivered on the 6th day of March 2015 1. This is an application for judicial review of a decision of the first named respondent refusing refugee status to the applicant. Background 2. The applicant is an Iranian national of Kurdish ethnicity. He was born in 1988 and prior to arriving in this State lived with his sister and uncle in a city in Iran. He sought refugee status in the following claimed circumstances: 3. While living in Iran the applicant worked as a mechanic. On Thursday 10th September 2009 a man came to the garage where the applicant worked, enquired after the owner (who was not present) and then requested the applicant to take in a damaged car for repair which the applicant duly did. Two days later as the applicant was arriving for work he saw that the garage was surrounded by Revolutionary Guards and intelligence officers and saw that they had put the car which had been left in for repair onto a tow truck. The applicant made enquiries about what was going on from an individual in a nearby shop, whom he knew, and was informed that the garage boss and an assistant had been arrested by the guards. Being a Kurd and because of his fear of the Revolutionary Guards and intelligence officers the applicant did not attend at his workplace but returned home and advised his uncle of what occurred. His uncle took him to a named village. Later that night his uncle returned and advised the applicant that the Revolutionary Guards and intelligence officers had come to the applicant’s house to arrest him and had taken all of his belongings. Moreover, his uncle had told him that, according to the Revolutionary Guards, the garage owner and the other worker had disclaimed knowledge of the car before stating the applicant had taken the car into the garage. The applicant’s uncle had ascertained that the car had been used for anti-government operations prior to it having been brought to the garage for repair. In light of what had occurred, his uncle had sent him to another village to stay with a friend. In the interim, the Revolutionary Guards came to the applicant’s house a number of times. After ascertaining that they were still searching for the applicant, his uncle had arranged to send him abroad to protect him from the Iranian regime. Arrangements were made for him to leave Iran with the aid of traffickers. The applicant claimed to have been brought to Turkey by the traffickers where he remained in a room for a period of days without going outside. On the 13th October 2009 he was taken from the place he was staying, brought to an airport and put on a plane and arrived in Ireland on the same date. Procedural History 4. The applicant presented at the offices of the ORAC on the 14th October 2009. His ASY interview was conducted on the 17th November 2009. He completed a questionnaire on the 21st November 2009. The applicant based his claim for asylum on a stated fear of persecution in Iran for reasons of nationality and political opinion. He was interviewed by the Refugee Appeals Commissioner on 10th December 2009. The Commissioner’s section 13 report issued on 10th February 2010 and it recommended that the applicant not be declared a refugee. This recommendation was appealed to the Refugee Appeals Tribunal and an oral hearing took place on the 6th July 2010. The decision of the Tribunal, dated 7th July 2010 issued to the applicant on the 14th July 2010. 5. The Tribunal affirmed the recommendation of the Refugee Appeals Commissioner that the applicant not be declared a refugee. It decided the applicant’s appeal primarily on the question of credibility. 6. The Tribunal was not generally satisfied as to the applicant’s credibility in relation to the particular claim for asylum advanced by him. It found that some of his evidence ran contrary to common sense and was implausible and that other aspects of his evidence were contradictory. The Tribunal set out a number of “examples” in respect of credibility, as follows:
b) The Tribunal found the investigation of the circumstances surrounding the car “inherently implausible” because the applicant’s relatives were never questioned as to his whereabouts, activities, political opinions, acquaintances, work life, etc. Moreover the Tribunal noted that despite having said that he would face the death penalty for taking the car in for repairs, the applicant had told the Tribunal that his boss, a far more responsible person had received a jail sentence. c) The Tribunal presumed that the authorities would have been interested in asking the applicant’s uncle questions about any details that he was told by the applicant in relation to the incident and the authorities’ failure to ask the applicant’s uncle about such details struck the Tribunal Member as inherently implausible. d) The absence of knowledge on the part of the applicant’s uncle or sister regarding the court hearing that resulted in the applicant’s conviction also struck the Tribunal Member as inherently implausible. e) The Iranian court’s ruling was on the 11th September 2009 whereas the attempt to arrest the applicant was on the 12th September 2009. f) The Tribunal upheld the finding made by the Refugee Appeals Commissioner at para. 3.3.3 of the section 13 report and afforded no weight to the copy document purporting to be a ruling of court and found that nothing proffered by the applicant to the Tribunal tended to undermine the validity of the Commissioner’s finding. g) The Tribunal upheld the finding at para. 3.3.4 of the section 13 report that the applicant’s evidence was vague and lacking in detail in relation to his journey to Ireland and that the applicant had not bothered to acquaint himself with the documents used for his journey. h) The applicant’s failure to claim asylum in Turkey was not indicative of a well-founded fear of persecution. i) The Tribunal afforded “the purported identity and other documents personal to the appellant printed by him no weight in the circumstances” and found “that they do not advance his claim in any material respect, indeed at least one of them serves to undermine the credibility of his claim”. 7. The statement of grounds sets out six grounds of challenge to the Tribunal’s decision, one of which was not pursued. In the course of the oral submissions, counsel for the applicant stated that the primary challenge to the decision was on the basis of the Tribunal Member’s failure to assess the credibility of the applicant’s claim in the context of country of origin information. Further, the Tribunal Member failed to take account of other documentation which had been submitted by the applicant in aid of his appeal, in particular his identity documentation and the record of his conviction and sentence by the Iranian court. 8. The following country of origin information was before the Tribunal:
2. An Amnesty International Report dated June 2010 entitled “From Protest to Prison, Iran one year after the election”, furnished to the Tribunal on behalf of the applicant. 3. A UNHCR document published by Human Rights Watch and entitled “Iran: Stop imminent execution of Kurdish dissident”, dated 29th June 2010(furnished to the Tribunal by the applicant). 4. An International Federation of Human Rights (FIDH) position paper to the United Nations General Assembly dated October 2009 concerning, inter alia, the “Islamic Republic of Iran”, again furnished by the applicant. 10. The translation of the Iranian court document produced by the applicant to the Tribunal Member on the day of the appeal hearing bears a date 16th September 2009 together with a reference to “Classification of case file:…(11th September 2009) Branch 1, General court of…” The applicant is named as defendant and an address for him is given. The body of the document contains, inter alia, the following:-
Regarding the charges against [the applicant] of having effected repairs to a Toyota automobile, which, according to reports from intelligence officers, as well as the correct confession by the defendant regarding having effected the repairs to the said automobile, belonged to a counterrevolutionary group; and considering the defendant’s inadmissible statements and defence, as well as his unsubstantiated denial [of the charges against him], along with other indications and clues, as reflected in the case file, the Court finds that the criminal charge brought against him has been proved beyond a shadow of doubt. Pursuant to Article 607 and 702 of the Islamic Penal Code, and in compliance with Article 22 and 47 of the said Code, as well as the provisions of the Law on the Manner of Imposition of Governmental Punishments, and Article 2 of the Law on Punishments for Criminals, the defendant is hereby sentenced to one year of penal imprisonment, as well as 60 lashes out of public view in the customary manner, along with payment of funds regarding the Pronouncement no. 228/941/856 as a cash fine payable to the Government of the Islamic Republic of Iran...” 12. Counsel pointed, in particular, to the following extracts from the Amnesty International Report:
“According to the Constitution, trials should normally be held in open court, except where this would be incompatible with accepted principles of “public decency” or if the parties request that the trial be held in closed session. Under the Code of Criminal Procedure, proceedings may be conducted in camera when charges relate to national security or if a public trial would “offend the religious sentiments of the people”. As a result, most cases heard before Revolutionary Courts are held behind closed doors. Those trials which the authorities claim are open often appear to be nothing but “show trials”, selected extracts of which may be broadcast nationally, apparently as a warning or deterrent to others... Many defendants report that their interrogators announce the sentence they will receive before they are tried, raising concerns that judges are not independent, but are receiving instructions from one or other of the various intelligence services.”
People in Iran continue to be arbitrarily arrested, often without warrant, by state officials who fail to identify themselves. Many are held for weeks or even months - often in solitary confinement - in detention centres outside of the control of the Judiciary in prolonged incommunicado detention without access to families or lawyers, in conditions amounting to enforced disappearances. Unlawful killings, and the all too frequent reports of torture and other ill-treatment by state actors who enjoy near total impunity, are still not being investigated. Hundreds of political prisoners, sentenced after unfair trials, are held across Iran; many of them are prisoners of conscience… Amnesty International can only call for an immediate end to the abuses, in particular for the release of prisoners of conscience, fair and prompt trials on recognizably criminal charges without recourse to the death penalty for political prisoners, and the commutation of all death sentences.”
“Throughout 2009 the situation of human rights in the Islamic Republic of Iran has remained dire, and even further deteriorated in the months preceding the June 2009 election, and afterwards.” “In the last few years, the repression against persons belonging to the Kurdish minority has been severe.” “FIDH and LDDHI call upon the UN General Assembly to adopt a resolution appointing a UN Special Envoy of the Secretary General on Iran. Indeed, the Iranian judiciary shares responsibility for the repression carried out in the wake of the June 2009 election and still persisting today. Therefore the Iranian authorities, including the judiciary, cannot credibly and effectively investigate the recent and serious human rights violations…” 15. The information was dealt with by the Tribunal Member in the following manner:-
“once such a fundamental lack of credibility is found, the Tribunal is not obliged to refer to country of origin information to see whether the story can be believed” this Tribunal has considered all of the various country of origin information reports and information.” 17. In part 3 of the decision under the heading “The Appellant’s claim”, reference is made, inter alia, to the following evidence given by the applicant.
19. Equally, I accept the argument made on behalf of the applicant in relation to the Tribunal Member’s finding as inherently implausible that neither the applicant’s uncle nor his sister knew anything about the apparent court hearing which resulted in his conviction and sentence. This finding is unsafe because the Tribunal Member arrived at this conclusion without any apparent reference to country of origin information which documented the nature of court hearings in Iran or to the fact that, as suggested by the country of origin information, they often take place behind closed doors. Had the Tribunal Member averted to this information, there was the potential that he might have come to a different conclusion as to the likely state of knowledge of the applicant’s uncle or sister. There is no way of ascertaining from the decision whether the Tribunal Member, in coming to his particular conclusion, averted to the country of origin information which was before him. Even if it was adverted to and discounted, the reason for the rejection should have been stated. To my mind, the unsatisfactory manner in which country of origin information was dealt with is not cured simply because there is the catch all statement in the Decision that the Tribunal Member has considered country of origin reports and information. 20. The failings of the Tribunal Member must be assessed in the context of the obligation on a decision maker pursuant to reg. 5 of the European Communities (Eligibility for Protection) Regulations 2006. Under the heading “Assessment of Facts and Circumstances”, reg. 5 provides that:-
(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application for protection, including laws and regulations of the country of origin and the manner in which they are applied; 22. As stated by Cooke J. in I.R. v. Minister for Justice Equality and Law Reform & Anor [2009] IEHC 353:-
The Iranian court document 26. Counsel for the applicant takes issue with the manner in which the Tribunal Member approached the Iranian court document, which had been furnished in aid of the appeal. As already stated, this document was not before the Refugee Appeals Commissioner: the applicant received it by post from Iran in advance of the appeal hearing. He claims that it was sent to him by a friend who was friendly with an intelligence officer. 27. To put the document into context, it is necessary to refer to the Commissioner’s section 13 report. Section 3.3.3 provides, inter alia, as follows:-
The applicant claims he had never been involved with any political group which might be perceived as being against the regime (Interview notes, Q37). He claims that neither he nor any of his family members had come to the attention of the authorities before this incident (Interview notes, Q38)… The applicant claims he does not know the outcome of [the]arrests (Interview notes, Q30). The applicant claims he has not been able to make contact with anyone in Iran since arriving in Ireland (Interview notes, Q29). The applicant’s case appears to be based on his fear of arrest for something he is not responsible for. Given that it appears the applicant fled because the authorities wanted to allegedly arrest him it is pertinent to examine why the applicant fears that arrest by the authorities would lead to persecution. It must be noted that the applicant does not know the outcome of his boss’s or colleague’s arrests (Interview notes, Q71-73). It could be that they were released without charge, yet he claims this forms part of the basis of his fear of persecution… While the applicant’s general assertions are consistent with Country of Origin Information about the treatment of Kurdish people in Iran he was ultimately unable to provide any specific examples of why he fears he personally would be executed were he to be arrested which would form an objective basis to fear persecution himself (Interview notes, Q83). Ultimately the applicant could provide no further explanation as to how he could be so definite that he would be either imprisoned or executed when neither he, nor anyone in his family, had ever been involved with the authorities, he did not know anyone personally who had ever been in a similar situation to himself and consideration is also given to his claims that he did not know the outcome of his boss’s arrest. The applicant asserts his fear is based on his ethnicity as a Kurd and because the authorities wanted to arrest him because he accepted a car into the garage which had allegedly been involved in activities against the regime (Interview notes, Q78). In addition to this, while COI supports his contention that Kurds are subjected to discrimination, it must also be noted that the burden of proof lies with the applicant and he has not provided any convincing testimony above and beyond this general information. The well-foundedness of the applicant’s fear is therefore undermined.”
“The Tribunal would uphold the finding made by the Commissioner at para 3.3.3. of the section 13 report. As outlined above, the Tribunal affords no weight to the copy document purporting to be a Ruling of the Court and nothing proffered by the appellant to the Tribunal tends to undermine the validity of that finding.” 30. The respondent submits that the document was fully taken into account by the Tribunal Member, albeit that he did not afford it any weight. That was the preserve of the Tribunal Member as the trier of fact. The Tribunal Member identified a number of discrepancies and found that the document did not support the version of events given by the applicant. Moreover, the dates on the document undermined the applicant’s account, as found by the Tribunal Member. This exercise conducted was quintessentially within the remit of the Tribunal Member and in this regard counsel for the respondent relies on the dictum of Birmingham J. in M.E. v. Refugee Appeals Tribunal & Ors [2008] IEHC 192 where he states:-
32. The question to be determined here is whether the approach adopted by the Tribunal Member with regard to the Iranian court document was the correct approach in all the circumstances of the case. 33. First and foremost reg. 5(1) of the 2006 Regulations provides that a decision maker shall take into account:-
35. The other issue is whether the apparent contradictions between what is recorded in the document and the applicant’s account of events absolved the Tribunal Member of the necessity to ascertain whether or not the document was authentic. To my mind, and indeed as already set out elsewhere in this judgment, the fact that the document referred to the applicant having confessed to a crime, on its face inconsistent with the applicant’s account of events could not, of itself, absolve the Tribunal Member of the necessity to make some enquiry as to its authenticity. Likewise, I find that the apparent inconsistency in the description of the car between what is recorded in the court document (there the car is described as a Toyota) and what is recorded in the translation of the applicant’s questionnaire (the car is described as a Kia Pride) was not a sufficient basis on which the Tribunal Member was entitled to characterize it as a document “purporting to be a Ruling of Court”. This is all the more so, given the peripheral nature of that inconsistency vis-à-vis the core matter to be determined. Moreover, I note that the applicant has averred in his grounding affidavit that in his questionnaire he described the car as a “ ‘Pride’ which is a model of Toyota” and that it was erroneously translated as a “Kia pride”. The applicant testifies that had this inconsistency been brought to his attention during the hearing he could have clarified the matter by reference to the original questionnaire in Sorani. The applicant’s averments in this regard have not been challenged by the respondents. 36. The Tribunal Member also impugned the corroborative value of the Iranian court document on the basis of the incompatibility of the dates recorded on the document with the version of events given by the applicant. Specifically, the Tribunal Member stated:-
No. Ain/1423 Attachments:----
Classification of case File: 1/Sh/Ain/1423-88, Verdict No. 1880-1388/6/20 (11 September 2009), Branch 1, General Court of [ ]” 39. In all the circumstances of this case, I am not satisfied that the Tribunal Member fairly assessed the Iranian court document which had been submitted in aid of the applicant’s appeal. The mandatory requirements of reg. 5 (1) (b), in conjunction with the principles of fairness, made it incumbent on the Tribunal Member, in the first instance, to retain the original of the court document which had been furnished to him, if only to assure the applicant that his documentation would get due consideration. Furthermore, simply attributing the characterization “purported” to the document without some effort having been made to establish whether it was authentic or not, does not, to my mind, comply with the requirements of reg. 5 (1) (b). 40. The court notes that s. 16 (6) of the 1996 Act affords a Tribunal Member a mechanism to carry out investigations. Section 16 (6) of the Act states:
42. The various failures identified above affect the decision arrived at by the Tribunal Member to a material extent. 43. In coming to my findings, I am conscious of the dictum of Cooke J. in S.B.E. v RAT & Ors. [2010] IEHC 133 where it is stated:
44. In the course of her oral submissions, counsel for the applicant sought to rely on a decision of the European Court of Human Rights in the case of M.A. .v. Switzerland (18 November 2014) as persuasive authority for this court in the context of its review of how the Refugee Appeals Tribunal dealt with the Iranian court document submitted by the applicant in support of his claim for refugee status. Counsel stressed that she was not seeking to challenge the Tribunal decision with reference to any ground under the European Convention on Human Rights and Fundamental Freedoms (the Convention) and acknowledged that the Convention does not deal with the question of asylum per se. While the M.A. case concerned an application under Article 3 of the Convention by a failed asylum seeker (an Iranian national) against his expulsion by the Swiss authorities, it is submitted that this decision is persuasive authority for how a decision maker in the asylum process should assess documents relied on by an applicant where there are inconsistencies in an applicant’s account of events. This was an issue which fell to be addressed by the European Court of Human Rights in M.A. Notwithstanding “weaknesses” in the applicant M.A.’s story, the ECHR held that documents submitted on his behalf could not be disregarded. Counsel relies, inter alia, on the following passage from the Judgment. Addressing an allegedly original summons relied on by the applicant M.A. (and submitted by the applicant M.A. during his first asylum hearing), the Court stated:
Having regard to the findings this court has already made concerning the failings of the Tribunal, when viewed against the requirements of the 2006 Regulations and the established jurisprudence, it is not necessary to embark on a consideration of the arguments raised by the applicant’s counsel based on the M.A. case. The “mystery” document allegation 45. In his section 6 analysis, by way of wrap up, the Tribunal Member stated:-
A reading of the decision as a whole clearly shows that the reference is to the Iranian court document. Therefore, while this court has found the Tribunal Member to be in error, as set out above, it has not been compounded by his having taken account of an unspecified document, as argued by counsel for the applicant. There is thus no merit in this particular argument The reference to “war crimes” 49. In the course of her oral submission, counsel for the applicant referred the court to part 4 of the Decision entitled “Submissions”. This part reads as follows:-
51. Whatever the reason for its inclusion, the “war crimes” reference can only be described as bizarre. I note that neither the statement of grounds nor the applicant’s written or oral submissions advance an argument that the decision is unsafe by virtue of the said reference. Whatever its origins, the reference on the face of the Tribunal Member’s Decision is, to say the least, worrying. 52. Protection seekers who seek recourse to the asylum process should at the very least have the expectation that what will be addressed in the document communicating the decision on their claim will be the arguments they advanced in aid of the appeal and any arguments advanced by the presenting officer, as relates to the particular claim for refugee status. It does not serve the system which is in place for the determination of applications by protection-seekers well that the instrument through which the applicant receive the decision on his appeal contained extraneous material of the nature described above. Conclusion 53. As the applicant has made out substantial grounds in this case, I therefore formally grant leave and as this hearing was conducted on a “telescoped” basis, I grant an order quashing the decision of the first named respondent and I direct that the matter be remitted for reconsideration before a different member of the Refugee Appeals Tribunal. |
