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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M.A. -v- Refugee Appeals Tribunal & ors [2015] IEHC 528 (31 July 2015) URL: http://www.bailii.org/ie/cases/IEHC/2015/H528.html Cite as: [2015] IEHC 528 |
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Judgment
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Neutral Citation [2015] IEHC 528 THE HIGH COURT
JUDICIAL REVIEW [2011 No. 1150 JR] BETWEEN M. A. APPLICANT AND
REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND IRELAND RESPONDENTS JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 31st day of July, 2015 Introduction: 2. In the submissions on behalf of the applicant, it is noted that the reliefs sought at paras. 2-6, which raise incompatibility issues between the Refugee Act 1996 and Council Directive 2005/85/EC, the Irish Constitution, the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights, are no longer being pursued in light of the decisions in H.I.D. & B.A. v. Minister for Justice [2013 IEHC 146], S.U.N. (South Africa) v. Refugee Applications Commissioner [2012 IEHC 338], T.D. -v- Refugee Appeals Tribunal [2010 IEHC 125] and, Efe v. Minister for Justice [2011 IEHC 214]. Background: 4. The applicant relied on his relationship with his ex-wife’s family to ground his fear of persecution, stating, “I left my wife. After that my relationship with her family became worse and they are determined to kill me.” He claimed that either two men, or his brother-in-law accompanied by two men, came to his mother’s house and said to her that the applicant would not be spared. 5. The applicant claimed that he reported his fear to the police in Pakistan, but gave varying accounts of the authority’s failure to help him. In the ASY1 form it was submitted that the police failed to act as it was a “family problem” and, further, that the applicant was of the view that the police might have acted if he had taken steps to bribe them. It was claimed in the applicant’s refugee status questionnaire that the police failed to act by reason of the brother-in-law’s status as an “influential person.” Finally, in his s. 11 interview he said that the police demanded a bribe in return for their help and it was on that basis that the applicant “gave up on the police.” 6. The applicant also submitted varying explanations accounting for his failure to apply for asylum prior to 23rd June, 2011, by which time he had been in the State for almost four years. In his ASY1 form, it was stated that:-
- however, he as been in fear for his life since then as [his brother-in-law] is still looking for him - he fears he will be killed should he return (sic) - he has not applied for asylum before this date because he was afraid he would be deported as he had heard different stories about others who had applied - he is applying now because friends of his have advised him that he would not be deported if he applied now.”
8. The Commissioner found that the applicant had not established a well-founded fear of persecution as required by s. 2 of the Refugee Act 1996. In particular, it was found that there was no Convention nexus on the basis that the applicant’s claim would be more appropriately regarded as a criminal matter and does not fall within the remit of the Convention grounds. 9. The Commissioner made a number of adverse credibility findings in relation to the applicant’s failure to seek asylum while in the U.K., his return from there to Pakistan, and the delay in claiming asylum when he first arrived in this State. The Commissioner further found that state protection and internal relocation were available options for the applicant. Finally, as the applicant had, without reasonable cause, failed to make his asylum application as soon as reasonably practicable after arriving in the State, he was not entitled to an oral appeal pursuant to s. 13(6)(c) of the Refugee Act 1996. 10. An appeal was submitted against the decision of the Commissioner wherein it was submitted that the applicant’s claim fell within the Convention ground of membership of a particular social group. It was further submitted that the application of s. 13 of the 1996 Act is in breach of the Procedures Directives which mandates an effective remedy against a decision taken by the first instance decision maker. 11. It was submitted that the Commissioner had failed to address the core of the applicant’s claim by focussing on the applicant’s extended presence in the U.K., his brief return to Pakistan, and his delay in seeking asylum in this State, instead of carrying out an assessment of whether or not a real risk of persecution faces the applicant if returned to Pakistan. 12. It was submitted that any separate adverse credibility finding by the Appeals Tribunal would violate due process in circumstances where the applicant was not afforded an oral hearing and was not afforded a reasonable opportunity to offer explanations for any purported discrepancy. 13. Finally, it was submitted that the Commissioner had not pointed to any specific contradictions in the applicant’s account which he had not reasonably accounted for, and that internal relocation was not a viable alternative and would not afford the applicant peace of mind in Pakistan. The decision of the Refugee Appeals Tribunal: 15. Counsel for the applicant submits that in doing so the R.A.T. made a number of completely new credibility findings. In respect of that aspect of the R.A.T. decision counsel for the applicant submits that:-
… 23…the nature of the adverse findings made, as to the discrepancies in the applicant’s evidence (which are not disputed, and are clear from the material which was before the Tribunal) is not such that there was an obligation on the Tribunal to give the applicant an opportunity to consider the potential adverse credibility finding prior to the decision being made.”
… Given the information that the Tribunal had both by way of evidence before the Tribunal itself and the other material arising from the questionnaire and the interview, I am satisfied that it was open to the Tribunal Member to reach the conclusion that the applicant was vague and lacking in detail without being required to tease out the situation any further with the applicant.” 19. The respondents accept that great care is required to be taken by the Tribunal in determining an appeal based solely on papers but submit that the Tribunal took sufficient care in determining the appeal as the adverse credibility findings made were based on clear and correct findings of inconsistency in the applicant’s evidence. The respondents submit that the ASY1 form, the questionnaire and the s. 11 interview, from which the applicant’s varying evidence is quoted at paras. 5, 6 and 7 above, were signed by the applicant, to acknowledge that the contents were correct and that he had been afforded an opportunity to make correction to each document. 20. The essential case made by the applicant is that the Tribunal Member should not have made new credibility findings against the applicant on a papers only appeal without reverting to him and putting these issues to him. I reject this argument. Where the Tribunal intends to make negative credibility findings based on the statements made by the applicant during the asylum process, whether on a papers only appeal or on an oral appeal, there is no obligation to revert to the applicant to give him or her an opportunity of explaining a perceived inconsistency, a contradiction, an implausible suggestion or any other circumstance arising from what the applicant has personally said, during the application process, which causes the Tribunal Member to conclude that credibility should be rejected. The Tribunal is no more required to do this than would a judge be required on hearing implausible testimony or on noticing an inconsistency in evidence to warn a witness that a negative credibility finding is imminent. The fact that the negative credibility finding is made on a papers only appeal is irrelevant. Counsel for the applicant has referred to certain Canadian authorities said to be authority for the proposition that:-
21. The complaint in this case maybe based on a misconception of the requirement that certain matters must be “put to” a witness. A witness should be given an opportunity of commenting on evidence to be given by another witness which contradicts his or her own evidence. Breach of this rule of fair procedures may result in the other evidence being excluded. 22. No reliance could be placed on material unknown to an applicant to defeat a claim for asylum. Thus, country of origin information which contradicts an applicant’s narrative must be disclosed and an opportunity afforded to address it. Contrarily, it must be assumed that an applicant is aware of what he or she has said during the asylum process. It is noted that an applicant has full opportunity in an appeal, even a “papers only” appeal to address any inconsistency, contradiction, implausibility or any other problem arising from what has been said during the asylum application process. 23. No negative credibility finding was made based on material unknown to the applicant because he is taken to be aware of what he has said personally, and because he was aware of the basis of the rejection of credibility in the s. 13 report, and he had adequate opportunity to address relevant issues during the appeal to the R.A.T.. 24. Counsel for the applicant also makes submissions in respect of the following aspects of the R.A.T. decision:-
12. In failing to consider the claim in light of known country conditions pertaining in Pakistan, the Tribunal acted in breach of fair procedures and acted contrary to Reg. 5(1)(a) of the European Communities (Eligibility for Protection) Regulations 2006, providing that “all relevant facts as they relate to the country of origin at the time of taking a decision on the application for protection” be taken into account by the decision-maker… 13. The internal relocation finding fell far short of the requisite legal principles set out in KD [Nigeria] v Refugee Appeals Tribunal [2013 IEHC 481] (Clark J., 1 November, 2013) at para 28, and I v MJELR & Refugee Appeals Tribunal [2014] IEHC 27 (Mac Eochaidh J., 30 January, 2014). Further, in making this finding the Tribunal failed to consider the fact that the Commissioner’s finding had been made in circumstances where it was perceived that the Applicant feared ‘one individual’ only, without any regard to the evidence that the ‘one individual’ was the leader of a criminal gang and further that he had connections with a national political party. In such circumstances the standard held as appropriate by Mac Eochaidh in I is the appropriate standard applicable herein. The time issue:
… 12. In M.B.B. v. Refugee Appeals Tribunal & Ors (Ex temopore, High Court, 20th June, 2013), Mac Eochaidh held as follows:- ‘17. There is one further submission which I should address on behalf of the respondent and that was the submission that there is no affidavit of translation to support the grounding affidavits in the case. In this respect, the respondent refers to the decision of Cooke J in Saleem v. Minister for Justice (Unreported, High Court, 2nd June, 2011). 18. I reject the argument made for two reasons. In the first instance it is not a matter that is pleaded in the statement of opposition. It seems to be a case that was made for the first time in the written submissions in this case and then repeated orally. In my view, where a point such as that is sought to be made, whether it is a time point or a translation point, it behoves the respondent to move expeditiously to move to strike out the proceedings if they have such an argument and that should be done by motions in limine in the proceedings, or at the very least, it should be actively pleaded, and then if pleaded, appropriate action be taken to bring the defect in the proceedings to the attention of the court at the first possible opportunity. This did not happen in this case. The second reason for rejecting the argument is that in the Saleem case there was clear evidence available to the court that the applicant did not understand the content of either of the affidavits sworn because the applicant confessed to that in the second affidavit in that case. There is no evidence before this Court that the applicant do not understand the contents of the affidavits sworn. There is evidence that the affidavits have been sworn with the assistance of a person who speaks both their native language and English. But there is no evidence that the applicants do not have enough English to understand these affidavits or did not have sufficient assistance with the swearing of them. There was clear evidence in the Saleem case because the applicant in that case admitted that they did not speak English. If the respondent wishes to bring a Saleem point, they need to produce evidence to the court that the person who swore the affidavit did not understand it. When that evidence is available, an application to strike out the proceedings based on the unreliability of the grounding affidavit might well be appropriate but only if that evidence is clearly available. It would be disproportionate to strike out proceedings on the basis of a hint or suggestion that the person's English is not up to scratch.’"
In those circumstances, no basis whatever for extending the time for proceedings in relation to the first decision has been put before the court, quite apart from any question of underlying merits.” 29. I refuse this application for judicial review. |
