High Court quashes Minister's refusal of subsidiary protection, rejecting quasi-estoppel argument regarding unchallenged asylum decision.

Neutral Citation [2012] IEHC 456

THE HIGH COURT

JUDICIAL REVIEW

[2011 No. 737 J.R.]

BETWEEN

SUMAN BARUA

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of Mr. Justice Mac Eochaidh delivered the 9th day of November 2012

1. By order of the Court (Clark J.) of the 8th February, 2012, leave was granted to the applicant to apply for judicial review of the

decisions of the respondent of the 20th June, 2011 refusing him subsidiary protection and leave to remain, on the following ground:

"The Respondent's decisions with respect to the Applicant's applications for Subsidiary Protection and Humanitarian Leave

to Remain are flawed in that:

The Respondent failed to address the documents already on the Applicant's file which, the Applicant claims are capable of

corroborating his claims for Subsidiary Protection and Humanitarian Leave to Remain, albeit in the circumstances where

the decision of the Refugee Appeals Tribunal with respect to the Applicant's claim for refugee status was not challenged."

Refugee Appeals Tribunal Decision

2. The applicant, who is a Buddhist and a national of Bangladesh, (where Buddhists are a minority), arrived in Ireland on the 1st

February, 2010, and applied for asylum the following day.

3. In a submission to the Refugee Applications Commissioner, the applicant gave a detailed account of his life in a village in

Bangladesh. He described how he came to take over his father's pharmacy and how he obtained basic medical training. He tells how

he joined a local organisation promoting the interests of women and children in the areas of education and healthcare (the

organisation is called NSKA). The applicant described to the Commissioner his involvement with the organisation and the

circumstances in which he became its Vice President. He also described tensions connected with the activities of NSKA and how

objection was taken to the organisation by certain Islamists. An influential man of Islamic faith called Mojaffor Ahmed is said to have

insinuated himself in the organisation seeking an Islamic influence on its activities. It is said that the Buddhist applicant sought to

terminate this influence and this resulted in a firearm being planted in the NSKA offices which attracted police attention and a

prosecution of ten to twelve persons from NSKA. The Commissioner was informed that there was no point in making a complaint to the

police. The applicant said that his family home was attacked and his sisters were afraid to leave the house. He also stated that his

tormentors were searching for him, saying they wished to kill him. The applicant says that on the 4th November, 2009, as he was

travelling to his parents' house, Mojaffor Ahmed and his gang attacked him, but he escaped. That evening, the same gang visited his

parents' house and beat his parents and sought to capture his sisters, which action was prevented by the intervention of neighbours.

In view of these events, the applicant says he fled Bangladesh.

4. Some eleven documents or categories of documents and photographs were submitted to the Commissioner in support of his

application. These materials are identified by the compiler of a report (the s. 13 report) as follows:

(i) Certificate of Training in Primary Healthcare;

(ii) Trade Licence;

(iii) List of Committee Members of Ramal Child and Youth Organisation

(iv) Copy of Birth Certificate

(v) Photographs;

(vi) DHL envelope;

(vii) A document related to Buddhist faith;

(viii) False case made to police about the applicant;

(ix) Warrant of Arrest of applicant;

(x) Charge Sheet in relation to false allegation against the applicant;

(xi) Police report.

The author of the s. 13 report states in relation to this material:

"All of the documentation furnished in connection with the application has been fully considered."

5. Following the failure of his application for refugee status, an appeal was made to the Refugee Appeals Tribunal which involved the

same material and claims made to the Commissioner.

6. The record of the interview at the Office of the Refugee Applications Commissioner has been exhibited in these proceedings and

was available to the Refugee Appeals Tribunal. At no stage was the applicant ever challenged as to the authenticity of the

documents he had submitted in support of his claim. He was never accused of forging documents or of relying on fraudulent

documents.

7. In the decision of the Refugee Appeals Tribunal, the author sets out the provisions of s. 11(b) of the Refugee Act 1996, which

addresses the matters to be evaluated for the purposes of assessing credibility. Section 11(b)(e) provides that "where the applicant

has forged, destroyed or disposed of any identity or other documents relevant to his or her application, whether he or she has a

reasonable explanation for so doing", is relevant to credibility.

8. The author of the Tribunal report also sets out Regulation 5(1)(b) of the European Communities (Eligibility for Protection)

Regulations 2006, which provides, "that the relevant statements and documentation presented by the protection applicant ... shall be

taken into account".

9. In the section of the Tribunal report entitled 'Analysis of the Applicant's Claim', the author identifies credibility issues. In the first

instance, the author says that the applicant's explanation for how he could have escaped the attack he endured on the 4th

November, 2009, is neither plausible nor credible and that the tale undermines his credibility.

10. The second finding on credibility related to the question of why the terrorists did not seek him out at his cousin's house if they

knew he lived there. The author of the report says as follows:

"It was put to the applicant that if they knew where his cousin lived and suspected that the applicant was at the same

address; [sic] it was difficult to understand that they would not find him there."

The author says:

"He did not explain reasonably how this could be the case. If the terrorists whom he feared suspected that he lived with

his cousin and knew where this was, they had plenty of opportunity to harm him should they have wished to do so.

Hence, the credibility of his account is questioned."

That to me seems to be a potentially unfair interpretation of what the applicant said in his interview with the authorised officer of

ORAC. The question (Question 28) asked of the applicant was:

"Q. Did they know where you lived in Chittagong?

A. No, they were suspicious. They did not know I was there, but they knew where my cousin lived."

It is not at all clear to me that the applicant told ORAC that his enemies knew that he was living with his cousin. As this has become

a central issue relating to the credibility of the applicant, it is a matter which should have been either very carefully probed or not

relied upon as a basis for a credibility finding. However, even if the applicant had answered these questions as reported by the

report's author, it is not obvious to me why the inability of the applicant to explain why his enemies did not attack him at his cousin's

house undermines his credibility. Nor does it seem to me that it is entirely improbable that he escaped an attack by five persons. I

make these observations notwithstanding the fact that these proceedings do not challenge the rationality of the credibility findings

made by the Refugee Appeals Tribunal. I am also aware that author had the benefit of a face-to face encounter with the applicant

and was able to assess demeanour, tone, body language etc. The author finds the content of the account faulty. He does not say

that the applicant lacks credibility by reference to his demeanour etc. As the credibility issues, as found by the Appeals Tribunal, are

relied on by the decision maker in the subsidiary protection application (without the benefit of an oral hearing), it seems appropriate

for this Court to have regard to how the issue of credibility has been treated throughout this process. As Hogan J. said in HM v.

Minister for Justice, Equality and Law Reform [2011] IEHC 16, a weakness in a credibility finding might infect a subsidiary protection

application, notwithstanding the absence of a challenge to the decision of the Refugee Appeals Tribunal on credibility.

Use of Documents

11. In a paragraph ins. 6 of the Refugee Appeals Tribunal report, the author notes:

"The applicant was told that 'forged and fraudulently obtained documents are readily available in Bangladesh and are

frequently submitted in support of entry clearance applications'. The Applicant replied, 'My dad got duplicates from court

and got copies; I never went to the police'.

The presenting officer told the applicant 'you submitted several documents and you gave no document with a photo ID.

That claims he has no document with his photo on it'." [sic]

It is not at all clear which, if any, of the documents the author might be suggesting was forged or fraudulently obtained.

12. In a de-contextualized part of the report, the number 35 and the words "Forged and Fraudulently Obtained Official Documents -

Bangladesh, 11 August 2009" appear. The number 35 is not in any cognisable sequence. There then appear some numbered

paragraphs 35.01, 35.02: and 35.03. These paragraphs indicate a problem with forged and fraudulently obtained documents submitted

by Bangladeshi nationals. Unhelpfully, the author, having raised the issue of forged and fraudulently obtained documents then makes

no finding or comment thereon. Importantly, the author does not specify a complaint in respect of false or fraudulently obtained

documents.

13. Following the decision of the Refugee Appeals Tribunal, the deciding officer in the Ministerial Decisions Unit (Asylum) wrote to the

applicant to communicate the refusal to grant refugee status. A number of options were presented. Option three informed the

applicant that he could seek subsidiary protection and also leave to remain in Ireland under s. 3 of the Immigration Act 1999.

Significantly, paragraph B of this portion of the letter states:

"Your application for subsidiary protection ... is not an appeal against the refusal of refugee status." [Emphasis not

added]

14. The Refugee Legal Service applied for subsidiary protection (and s. 3 leave to remain). There is a short narrative of the

circumstances leading to the applicant's request for protection along with an indication that details of the applicant's claim "will be

apparent from his file" - a reference to his failed asylum application. This is further clarified when Question 10 on the Subsidiary

Protection Form asks, "(i)f you are relying on documentary evidence already submitted with your asylum claim, please identify such

evidence below". The applicant's legal adviser answers: "(a)ll documents on file, including country of origin information". In italics, the

form asserts "(d)ocumentary evidence already submitted by you or on your behalf to the Office of the Refugee Applications

Commissioner (ORAC) or the Refugee Appeals Tribunal (RAT) as part of the application for asylum will be available to the Minister and

does not require to be resubmitted by you".

The Subsidiary Protection Decision

15. The determination of the subsidiary protection application turned on the question of the applicant's credibility. The decision maker

noted that the Refugee Appeals Tribunal "identified serious credibility issues which resulted in a rejection of the claim that he would

face 'a real risk of torture, or inhuman or degrading treatment in Bangladesh'."

16. The decision maker's report seeks to follow the structure suggested by Regulation 5 of the Protection Regulations. Regulation 5(1)

(a) requires that the decision maker take into account "all relevant facts as they relate to the country of origin". In accordance with

this requirement, the decision maker duly considered country of origin information.

17. Adhering to the scheme of Regulation 5, the decision maker addresses the Regulation 5(1)(b) requirement that "the relevant

statements and documentation presented by the protection applicant...shall be taken into account". Addressing this requirement, the

decision maker says, "(n)umerous documents have been submitted. All documents submitted and referred to have been read and

given consideration".

18. Regulation 5(1)(c) requires the decision maker to take into account "(t)he individual position and personal circumstances of the

protection applicant so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant

has been or could be exposed would amount to persecution or serious harm". The decision maker's attempt to fulfil the statutory duty

under Regulation 5(1)(c) concludes in the following terms:

"I have considered this information and find that on the basis of the applicant's personal circumstances, there is nothing

that would prevent the applicant in this case from seeking protection from the authorities in Bangladesh."

It seems to me that this is not an appropriate conclusion to make in purported compliance with the statutory duty of Regulation 5(1)

(c) which merely requires the decision maker to address whether the individual and personal circumstances of the applicant may be

identified with persecution or serious harm. The question is not whether the applicant might seek protection from the authorities in

the home country, but again, the adequacy of this particular part of the subsidiary protection decision was not argued and therefore I

make no finding thereon.

19. Section (vi) of the decision maker's report asks whether the applicant "has already been subject to serious harm (as defined in

Regulation 2(1) and Regulation 5(2))?". The author sets out an extremely brief precís of the harm suffered by the applicant in the

past and concludes "as serious harm can only be carried out by 'actors of serious harm' within the meaning of Regulation 2(1), I do

not find any evidence that Suman Barua has suffered treatment in Bangladesh which would come within the definition of 'serious harm'

as defined in Regulation 2(1)". It is difficult to comprehend why the identified perpetrators of the problems said to have been suffered

by the applicant would not come within the category of persons referred to in the Regulations as "actors of persecution or serious

harm". Those categories of actors are said to include various groups and it does not appear to me that the Regulation excludes the

possibility of an actor of harm being a person other than a member of one of the categories. The alleged actor of harm in this case

was an Islamic activist with Taliban leanings and with influence in the applicant's village and region. At the level of principle, I see no

reason why such a person could not be regarded as an actor of harm within the meaning of the Protection Regulations or the

Qualification Directive. However I make no findings on this issue as it was not comprised in the proceedings.

20. Section 8 of the Subsidiary Protection decision is entitled 'applicant's credibility and whether benefit of doubt should be given

(Reg. 5(3))'. The author then proceeds to repeat some of the findings of the Refugee Appeals Tribunal concerning the lack of

credibility of the applicant. It is not at all clear to me in what way such assessment is related to Regulation 5(3) which is cast as

follows:

"Where aspects of the protection applicant's statements are not supported by documentary or other evidence, those

aspects shall not need confirmation when the following conditions are met ..."

Regulation 5(3) appears to be addressed to circumstances where part of the applicant's story is not supported by documentary

evidence. At no stage does the author attempt to identify which part of the applicant's story is unsupported by documentary

evidence, and having done so, how the credibility of the applicant's tale is then to be assessed. It is clear to me that such part of

the report which is said to address the requirements of Regulation 5(3) fails so to do. This failure is closely related to the principal

complaint- indeed, the only complaint - in respect of which the applicant was granted leave to seek judicial review. That complaint,

simply put, is that there was a failure by the decision maker to address all of the documents which have been submitted to the

Minister's officials in respect of the claim for subsidiary protection. It is recalled that the same suite of documentation accompanied

the two-stage asylum application and the subsidiary protection application, together with the leave to remain application. It is a

startling feature of this case that this documentation was not referenced, even casually, by the decision maker. Not every document

submitted needs separate and microscopic examination. However, in a case such as this, where the documentary evidence is

apparently corroborative of the applicant's story, this is an issue which the decision maker ought to address.

21. The matters in respect of which findings of lack of credibility were made seem to me to have been marginal. It will be recalled that

the two issues which appeared to trouble the decision makers most were how it was that the applicant could have escaped the

clutches of five persons who attacked him. To my mind, the possibility of escape was not so improbable or implausible as to undermine

credibility. The second issue which caused concern was how it was that the applicant's enemies did not find him at his cousin's

house, given the applicant's apparent assertion that his enemies knew that he lived with his cousin and where his cousin lived. As I

have previously indicated, it is not at all apparent to me that the applicant ever said that or meant to say that, and even if he did,

the fact that his enemies did not seek him out at his cousin's home could have many plausible explanations and does not necessarily

mean that he has invented this fact, or all of the surrounding facts. My purpose in expressing my own views on the credibility findings

is not to disagree with them or to say that I would have reached a different conclusion. It is trite to say that the court must not

engage in such an exercise. My purpose is to see if the findings on lack of credibility were strong enough to permit the decision maker

to give no weight whatsoever to apparently corroborative documentation.

22. Given that the findings of lack of credibility - which I am not invited to disturb - are marginal, it seems to me that there was a

duty upon the respondent to weigh those credibility issues with the corroborative documentary evidence and to balance the two. If

that documentary evidence was dismissed, it should have been dismissed for a reason stated.

Obligation to consider documentation

23. The central issue in this case is the nature of the obligation on decision makers to consider documents submitted by an applicant

as part of an application for subsidiary protection and the obligation to give reasons for not attributing weight to such documents if

that is the case.

24. The applicant argues that the failure to consider relevant documents submitted constitutes a failure to observe fair procedures

and that although entitled to disregard documents, the decision maker must give reasons.

25. The respondent argues that the subsidiary protection decision maker is entitled to adopt the findings of the Refugee Appeals

Tribunal and as the Tribunal's decision contained country of origin information which refers to fraudulent documents, this can be

understood as meaning that the Tribunal believed that the applicant's documents are forged and the subsidiary protection decision

maker is following this view. The respondent points out that that the findings of the Tribunal were not challenged in the subsidiary

protection application nor by judicial review in the High Court.

26. I find that if the subsidiary protection decision maker decided that the documentation at issue was tainted then she should have

said so. Merely stating that, "[a]ll documents submitted and referred to have been read and given consideration" or quoting passages

from country of origin information relating to forged documents is not enough to communicate such a view.

27. As noted above, if documents which are prima facie corroborative of an applicant's account of relevant events are to be

discounted, dismissed or rejected, or somehow found not to have corroborative effect, it is incumbent on the decision maker to

explain why. There maybe overwhelming reasons, unrelated to the documentation, to reject the credibility of an applicant but if this is

so, then the decision maker should say that and should clearly state the basis on which documentation which seemingly supports the

applicant's story is discounted , rejected or dismissed. An objective outsider, such as this court, is left guessing why the applicant's

documents submitted in support of the claim did not appear to have that effect. The references in the impugned decision to the

prevalence of forged and fraudulently obtained documents in Bangladesh leads one to conclude that this is what the decision makers

actually believed of some or maybe all of the applicant's supporting papers. That is a matter which ought to have been put to the

applicant, or at the very least, an express finding in that regard should have been made and the basis of that finding should have

been stated. Documents which prima facie support the applicant's story deserve comment and this is especially so when marginal

credibility findings are relied upon by a decision maker to dismiss an applicant's story and refuse protection. (I note that the Tribunal

stated that the applicant was fleeing prosecution, not persecution. Such a finding implies that the Tribunal accepted the authenticity

of certain documents relating to activities of the courts and the police, but one is left guessing as to what the references to forgeries

were about).

28. Statutory rules and case law direct the manner in which documents must be treated: see Regulation 5 (1) (b) of the European

Communities (Eligibility for Protection) Regulations 2006. As for case law, in IR v. Minister for Justice, Equality and Law Reform [2009]

IEHC 353, paragraph 11, Cooke J lays out ten principles for the treatment of evidence which goes to credibility. The ninth principle

reads as follows:

"Where an adverse finding involves discounting or rejecting documentary evidence or information relied upon in support of

a claim and which is prima facie relevant to a fact or event pertinent to a material aspect of the credibility issue, the

reasons for that rejection should be stated."

The tenth principle states,

"Nevertheless, there is no general obligation in all cases to refer in a decision on credibility to every item of evidence and

to every argument advanced, provided the reasons stated enable the applicant as addressee, and the Court in exercise of

its judicial review function, to understand the substantive basis for the conclusion on credibility and the process of

analysis or evaluation by which it has been reached."

29. It is clear that the decision maker did not follow these principles. The decision furnished by the respondent did not allude to any

reasons for the absence of weight attributed to the documentation furnished by the applicant. The decision does not explain why the

documentation's corroborative effect was dismissed, discounted or rejected.

30. There is an obligation to give a reasonable explanation for an administrative decision. Murray C.J. in Meadows, v. Minister for

Justice, Equality and Law Reform [2010] IESC 3 said:

"An administrative decision affecting the rights and obligations of persons should at least disclose the essential rationale on foot of

which the decision is taken. That rationale should be patent from the terms of the decision or capable of being inferred from its terms

and its context. Unless that is so then the constitutional right of access to the Courts to have the legality of an administrative

decision judicially reviewed could be rendered either pointless or so circumscribed as to be unacceptably ineffective."

31. In essence I cannot discern from the decision why the applicant's corroborative documents were seemingly dismissed, discounted

or rejected. The decision in suit does not meet the standard described by the learned Chief Justice in Meadows and must therfore be

quashed.

32. I am fortified in my conclusion in the present case by the approach adopted by the High Court in A.M.N v. Refugee Appeals

Tribunal [2012] IEHC 393. McDermott J., condemning the manner in which a medical report had been treated said:

"However, I am satisfied that the Tribunal erred in law in failing to describe what significance was attached to the medical

report and if significance attached to it, why it was discounted as against other factors in the case. It was incumbent on

the Tribunal to deal specifically with the medical report and state reasons as to why it was not accepted. The report is

discounted on the basis of the applicant's "overall account to the Tribunal". The medical report was an objective piece of

evidence that required more careful consideration. The mere recital of its terms does not amount to a sufficient

consideration of its contents. I do not regard this case as one in which the primary findings of fact pertaining to the

applicant's credibility were of such force as to outweigh the medico legal report to the extent that it could be dismissed in

such a summary fashion. I am satisfied that in reaching its decision the Tribunal erred in law in failing to consider the

medical report adequately and failing to give any adequate reason or explanation for rejecting the probative value of the

report. The Tribunal failed to provide cogent reasons for rejecting a piece of evidence that was significantly supportive of

the applicant's claim. The Tribunal's failure in this respect renders its decision fundamentally flawed."

Similarly I do not regard the finding of lack of credibility to be of such force as to outweigh the apparent corroborative effect of the

applicant's documents.

Duty of applicant to bring dispute to the attention of the decision maker

33. It was submitted that the respondent was entitled to adopt the findings of the Appeals Tribunal when making a decision on

subsidiary protection, recalling that the Appeals Tribunal did not accept the credibility of the applicant. The respondent argued that

as the applicant did not challenge the decision of the Refugee Appeals Tribunal and did not criticise the Tribunal's finding on credibility

in his subsidiary protection application, he is now barred from asserting that the reasoning of the Tribunal and/or of the subsidiary

protection decision which adopted the Tribunal's findings is flawed.

34. Counsel for the applicant argued that to oblige an applicant to point out every deficiency in a Refugee Appeals Tribunal decision in

a subsequent subsidiary protection application would make it an appeal from the Tribunal decision and furthermore it is the duty of the

Minister to consider all of the material which is put before him.

35. The respondent relied upon the decision in H.M. v. Minister for Justice and Law Reform [2012] IEHC 176, where Cross J stated at

paragraph 54 that,

"In applying the Debisi principles to this case, it follows that, when the application for subsidiary protection was made, it

was incumbent on the applicant to point the Minister to new facts or circumstances giving rise to an alleged threat of

serious harm, to point to some material error of fact that would vitiate the entire decision of the RAT or, at a minimum to

provide new evidence which could form a basis for findings of fact by the Minister which differed from those of the RAT."

36. In the case of Noah Debisi and The Minister for Justice and Law Reform [2012] IEHC 44, Cooke J held at paragraph 14 that,

"Where the s.13 Report (or for that matter the decision of the Tribunal on appeal) has found that an asylum seeker's claim

is implausible or lacks credibility such that the events described or the facts relied upon are considered not to have

happened or not to have involved the applicant, there is no obligation on the Minister to reconsider the same facts or

events and to decide whether they should be considered plausible or credible in the light of explanations given in the

application for subsidiary protection; at least in the absence of new evidence, information or other basis capable of

demonstrating that the original findings were vitiated by material error on the part of the decision makers. To require the

Minister to do so would effectively convert an application for subsidiary protection into a form of a second appeal against

the refusal of a declaration of refugee status."

37. However in the case of H.M. v. Minister for Justice, Equality and Law Reform [2011] IEHC 16, Hogan J stated that relying on the

Appeals Tribunal's reasoning on credibility issues is acceptable,

"but where such reasoning is itself open to objection, then it will also infect the Minister's decision, even where the

decision of the Tribunal has not been challenged in judicial review proceedings."

This principle places an obligation on the Minister if adopting the findings of the Refugee Appeals Tribunal to ensure all findings were

reasonable.

38. As I said earlier, the letter sent to the applicant informing him that his application for refugee status had been refused and telling

him of the option to apply for subsidiary protection stated:

"Your application for subsidiary protection...is not an appeal against the refusal of refugee status." [Emphasis not added]

39. The jurisprudence of the High Court says that the application for subsidiary protection is not an appeal from the decision of

Tribunal. That jurisprudence also makes plain that findings of the Tribunal must be considered by the Minister and that the Minister is

entitled to adopt those findings. Where a lack of credibility led to a refusal of refugee status, how could the Minister, if both

applications are based on the same facts, reverse such a decision on the second occasion? Yet the regulations require the Minister to

consider all documents and matters submitted with the application for subsidiary protection and this is usually the same material

previously submitted in connection with asylum issues. That consideration must be meaningful. Case law says the application for

subsidiary protection is not an appeal from the Tribunal. This applicant for subsidiary protection was told (by letter from the

respondent) that his application is not an appeal from the decision of the Tribunal (and presumably all applicants are told the same).

Such statement implies that it will not involve a review of the earlier decision and the applicant is entitled to infer that he is not

required or indeed not permitted to reopen the earlier decision.

40. These internal contradictions in the rules create an unsatisfactory situation. The contradictions are more stark when one

considers that only failed asylum seekers may seek subsidiary protection. (I understand that there are proposals before the

Oireachtas for reform, mentioned recently by the Supreme Court (see para. 2.7 of the judgment of Clarke J. in Okunade v Minister for

Justice Equality and Law Reform [2012] IESC 49)). It seems unfair that applicants make applications for subsidiary protection in

circumstances where they are told it is not an appeal from the asylum decision, yet findings in the that process may well determine

the subsidiary protection application. It is also unfair to criticise applicants for failing on the second application to take issue with the

asylum decision.

41. Rules of Court on third party procedure and provisions of the Civil Liability Acts 1961 (as amended) are designed to ensure that

the same facts are not tried twice to avoid the possibility of different and conflicting results. The very opposite has been achieved in

the Irish regime for international protection of persons claiming to be in fear of harm. Almost inevitably, the same facts will be tried

twice. The applicant is told that it is a fresh application where all matters and documents will be considered. And the minister is for

practical purposes prevented from reconsidering his earlier decision though he is directed to consider the second application fully.

42. I am unwilling in this case to count the frailties of this unsatisfactory situation against the applicant. I reject the case made for

the respondent that the failure of the applicant to challenge the decision of the Tribunal or to criticise the Tribunal in the subsidiary

application process acts as a quasi estoppel or has the effect of disbarring the applicant from relief.

43. I order that the decisions in suit be quashed and I will hear the parties on any other orders that may be needed.