High Court grants leave to apply for judicial review due to material error of fact and failure to consider COI reports.

Neutral Citation No. [2010] IEHC 510

THE HIGH COURT

JUDICIAL REVIEW

2008 767 JR

BETWEEN

H. R.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL (BERNARD MCCABE) AND

THE MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENTS

JUDGMENT OF MR JUSTICE RYAN, delivered on the 8th October 2010

1. The applicant, who is a national of Belarus, seeks leave to apply for judicial review of the decision of the Refugee Appeals Tribunal

dated the 7th May, 2008 to affirm the recommendation of the Refugee Applications Commissioner that she should not be declared a

refugee. There was a short delay in issuing proceedings after the decision was notified to the applicant but the applicant’s affidavit

gives a full explanation and good and sufficient reason has been established for an extension of time.

Background

2. The applicant arrived in Ireland in June, 2004 on a three-month student visa and when it expired she sought to have it renewed

but her application was refused. She overstayed her visa and in May, 2006 she applied for asylum. Shortly afterwards she gave birth

to her daughter whose father is a Lithuanian man living in Ireland.

3. The Commissioner made a negative recommendation in her case, highlighting a number of discrepancies including a conflict between

her account of her brother’s continued imprisonment and country of origin information indicating that only 11 of some 2,000 arrested

after the 2006 elections remained in prison after one month. In addition it was found to be significant that she had not mentioned her

brother’s imprisonment at her preliminary s. 8 interview and that her explanation for same (claiming that the interpreter failed to

translate her answer) was not reasonable. It was also considered that as a non-party member, the applicant would most likely not be

targeted and that she had not given a reasonable explanation for failing to apply for asylum at an earlier opportunity.

4. With the applicant’s Notice of Appeal her representatives furnished 15 country of origin (COI) reports. It was submitted that while

she was not a party member, she was opposed to the ruling Belarusian regime and that she feared persecution by reason of her

political opinion both actual and imputed and also because of her membership of a particular social group comprising persons who

claimed asylum or residence abroad. On the day before her oral hearing her solicitors furnished previous, RAT decisions and additional

COI reports. At the hearing she produced an empty envelope from her mother which she said had been tampered with.

5. The Tribunal Member made a series of negative credibility findings, as follows

She did not provide a reasonable explanation for her claim that Ireland is the first safe country in which she has arrived

since leaving her country of origin – regard was had to s. 11B (b) of the Refugee Act 1996. She provided “vague and non-

specific evidence” but had clearly been to Poland, France and Germany.

At the appeal hearing she said she was strip searched when detained in 2004. She had not mentioned this at interview

and said this was because she was not asked for much detail and felt uncomfortable talking about it. It was implausible

that she would not have mentioned the strip-search at interview with the Commissioner and her explanation for that

omission was unreasonable, having regard to her demeanour.

Her evidence in relation to the envelope submitted at the hearing was not credible.

It was not plausible that a fundamental piece of information such as her brother’s imprisonment would be overlooked at

her s. 11 interview. The applicant would have had recourse to another course of action if that was the case. The s. 11

process involves the written notes being read back to the applicant and signed by her. She would have had ample

opportunity to correct an omission.

Even if the applicant was credible, it would appear that her problems were largely the making of her brother’s and her

connection to the alleged incident was too remote, she not being a party member and not having any involvement and

having been absent from Belarus for so long.

6. The Tribunal used a standard paragraph in relation to the previous RAT decisions submitted, finding them to be of insufficient

relevance.

Grounds

7. Leave is sought on a multiplicity of grounds which may be summarised briefly as follows, that the Tribunal Member:

i. Engaged in inordinate delay;

ii. Made a material error of fact;

iii. Engaged in a flawed assessment of credibility by relying on demeanour;

iv. Failed to consider COI furnished;

v. Failed to consider explanations provided;

vi. Failed to consider a significant element of the applicant’s appeal;

vii. Failed to put concerns to the applicant to afford her an opportunity to address them;

viii Erroneously concluded that her claim falls outside of persons intended to be protected by the Convention; and

ix. Failed to consider adequately previous RAT decisions furnished.

8. Counsel for the applicant argued that the decision lacked care and accuracy, that the decision was impaired because of obvious

confusion and that the applicant's narrative was not considered in the context of COI but in isolation. The Tribunal Member failed to

act with due diligence and care in dealing with fundamental rights. Ultimately, he neglected to ask himself whether there is anything

to show a risk of persecution if returned. Reliance was placed on the decision of the Court of Appeal in L.N. (Zimbabwe) v. Secretary

of State for the Home Department [2010] EWCA Civ 576 where Jackson LJ held that irrespective of whether the applicant was telling

the truth, the decision of the Immigration Judge could not stand because the reasoning by which the latter had reached his

conclusion on credibility was flawed.

9. The applicant has established substantial grounds in respect of two of these grounds, namely, material error of fact and failure to

consider country of origin information.

Mistake of Fact

10. The applicant argues that the decision contains a blatant error that the applicant omitted to mention her brother's imprisonment

at her s. 11 interview. This alleged omission was in fact at the preliminary s. 8 interview, the results of which were recorded on the

applicant’s ASY-1 form. It is clear from the notes of the interview that she did mention her brother's imprisonment at her s. 11

interview and explained her alleged omission at the earlier s. 8 interview. This error is indicative of a lack of care and of confusion and

was material to the decision on credibility.

11. The respondents contend that this error was immaterial and does not render the decision irrational. The core finding, that the

applicant failed to mention an important matter at an early stage, stands. It remains quite extraordinary that the applicant did not

mention her brother at her s. 8 interview as his imprisonment – possibly in a psychiatric hospital – must have been present to her mind

at that time. There has been no reasonable explanation for this omission.

12. There can be no doubt that the Tribunal Member erred in fact in relation to the applicant’s omission to mention her brother. He

said that it was implausible that the applicant would not have mentioned her brother’s imprisonment at her s. 11 interview and that it

was also implausible that she could blame her interpreter for that omission, given that each page of the s. 11 interview notes was

read back to her and signed. The applicant did mention her brother’s imprisonment at her s. 11 interview and in fact she gave a

considerable amount of evidence in relation to him and his political involvement at that time. It was at her preliminary s. 8 interview

that no mention was made of her brother and she sought to blame the interpreter for that omission. The Tribunal Member accorded

significance and weight to the circumstances of an omission that occurred on another occasion in different conditions. In my view

there are substantial grounds for arguing that the mistake of attribution between the s. 8 and s. 11 interviews was a material error

that undermined the validity of the Tribunal’s reasoning.

Country Of Origin Information

13. The applicant also submits that the Tribunal Member failed to assess her credibility by reference to objective COI. The decision

does not refer to this information. It is at least arguable that the Tribunal Member engaged in a credibility assessment without

reference to the contents of the 21 COI reports on the situation in Belarus. Those documents set the political and social backdrop in

Belarus at the material times. In the applicant’s contention the COI reports are supportive of her claim insofar as they are consistent

with her account of the search of her house, her brother’s detention at a post-election rally, his subsequent arrest and disappearance

in 2006 and his apparent emergence in a psychiatric hospital later that year. One of several examples of the potentially corroborative

nature of the COI is a 2006 U.S. Department of State report which records that the son of a murdered journalist was detained for

three months and an attempt had been made to confine him to a psychiatric ward and that a human rights activist had been arrested

and sent to a psychiatric hospital.

14. It is arguable that at least some of the COI furnished was capable of supporting aspects of the applicant’s claim. In the

circumstances, there are substantial grounds for permitting the applicant to argue that her credibility ought to have been assessed in

the context of that COI and that, in omitting to consider the COI, the Tribunal Member acted in breach of fair procedures and in

breach of s. 16(16) of the Refugee Act 1996 and Regulation 5(1) (a) of the European Communities (Eligibility for Protection)

Regulations 2006 (S.I. No. 518 of 2006).

Other Grounds

15. The applicant contends that the approximately ten-month period between the hearing and the decision was an unwarranted and

unreasonable delay which led to material errors of fact rendering the decision unsound. She relied on my decision granting leave in P.

(Y.B.C.P.) v. The Refugee Appeals Tribunal (18th June, 2010). In P., the Court was prepared to grant leave on a number of other

grounds and was satisfied that leave should be granted on the delay point in those circumstances. Here, the applicant has not

established any inaccuracy or flaw in the decision arising from the delay and independent of another cause. She has not

demonstrated that she was prejudiced by the delay. I accept the respondents’ submission that delay simpliciter is not a ground on

which leave should be granted in this case.

16. Substantial grounds have not been established in relation to the 27 previous RAT decisions furnished to the Tribunal. The

paragraph rejecting the relevance of those decisions was undoubtedly in a standard form but the Tribunal Member cannot be faulted

for the manner in which he dealt with them. As was stated by Geoghegan J. in Atanasov v. The Refugee Appeals Tribunal [2006] IESC

“It is not that a member of a tribunal is actually bound by a previous decision but consistency of decisions based on the

same objective facts may, in appropriate circumstances, be a significant element in ensuring that a decision is

objectively fair rather than arbitrary. […]

A decision that deals with the question of whether refugee status should be granted in a homosexuality situation or in a

female circumcision situation, for example, would seem to me to be decisions of “legal importance”. It does not have to

be some narrow point of law in the technical sense. On the other hand, there may be many cases that are based on

particular facts that do not put the applicant into some particular category and would be of no legal relevance to any

other applicant’s case.”

17. None of the decisions was of sufficient relevance as to warrant express consideration in the decision. There was therefore no

obligation on the Tribunal Member to give reasons for not coming to the same conclusion as was reached in those decisions.

18. Another unsuccessful ground is the claim relating to the failure of the Tribunal Member to put his concerns to the applicant to

allow her an opportunity to address them. The applicant complains in particular that he did not put her on notice of his misgivings

about her omission to mention at her s. 11 interview that she was strip-searched by customs officials or his doubts as to the

authenticity of the envelope she submitted. Pursuant to s. 11A(3) of the Refugee Act 1996, the burden of proof lay with the

applicant at the appeal stage to show that she was a refugee. Her credibility was rejected by the Commissioner and she was on proof

of her credibility on appeal. A decision-maker is not required to put to an applicant each and every piece of evidence found

implausible. “The principle of audi alteram partem does not require the determinative body to debate its conclusions in advance with

the parties” (see D.H. v. Refugee Applications Commissioner [2004] IEHC 95 per Herbert J.). The principle was clearly enunciated by

McMahon J. in P.S. v. Refugee Applications Commissioner [2008] IEHC 235

“[…] the obligation on the relevant body is an obligation to give ‘a reasonable opportunity’ to the applicant and that the

obligation arises only where the relevant matter is ‘important to the determination’ so that the applicant will have the

opportunity to respond. Clearly, not every matter must be put to the applicant or to her advisors. It is not incumbent

on the Commissioner after every question is answered to say to the applicant:- ‘I am not sure I believe your answer. It

may be when I assess the matter fully and examine the evidence in its totality that I will reject your answer to this

question. What do you say to that?’ It is quite clear to all who participate in this exercise, especially where the applicant

is assisted by legal advisors, that the application will be at risk if the applicant is not believed, and that the principal onus

of proof lies on the applicant, who is in appropriate cases to be given the benefit of the doubt.”

19. It is clear from the initial pages of the impugned decision that the applicant was asked questions about the strip-search and the

envelope at the hearing and had ample opportunity to present her claim as she wished. She was represented by counsel who made

extensive submissions on her behalf after she gave evidence. It was not necessary for the Tribunal Member to put her on notice of

any doubts about her answers more than he did.

20. The applicant’s complaint of a failure to assess her fear of persecution as a person who had resided and applied for asylum abroad

is also lacking in substance. It is clear from the decision that the Tribunal Member was aware of that aspect of her claim because he

summarised the submissions made by counsel. While no express consideration was given to that element of her claim in the analysis

section, it does not follow that this renders the decision unsound. The COI reports were not supportive of that aspect of the

applicant’s asserted fears.

21. A further failed ground relates to the question of remoteness. The Tribunal Member expressed the view that, even if the applicant

had been credible, her problems were largely the making of her brother and her connection was too remote. This was an alternative

finding. The Tribunal’s affirmation of the negative recommendation was essentially based on his finding that the applicant was not

credible. The alternative finding on remoteness, even if flawed, could be severed from the decision without consequences as to its

validity.

22. The applicant argues that the Tribunal Member failed to base his comments about her demeanour on a rational or cogent basis

and that he failed to consider explanations she gave for apparent inconsistencies in her evidence. The UNHCR Guidelines on

Interviewing Applicants for Refugee Status (RLD4) accept that while demeanour has a limited value in terms of assessing credibility

owing potentially to cultural and gender influences, “This is not to say that demeanour is irrelevant, far from it.” The UNHCR warns

against the use of demeanour as a determining element in credibility assessment but there does not appear to be any evidence that

demeanour was considered determinative in this case. The Tribunal Member’s summary of the claim and the evidence at the hearing

shows that he was cognisant of her explanations for discrepancies and there is no evidence that he ignored them and he expressly

put his concerns in relation to a number of those explanations to her.

IIEConclusion

23. I propose to grant leave on the following grounds:

(1) That the decision of the Tribunal was based on a material error of fact that undermined its validity in law; and

(2) That the Tribunal erred in law in failing to consider the applicant’s case by reference to relevant country of

origin material that was submitted on her behalf.