High Court quashes Refugee Appeals Tribunal decision for fatal credibility errors regarding medical evidence and travel arrangements.

Neutral Citation Number: [2008] IEHC 406

THE HIGH COURT

JUDICIAL REVIEW

2006 643 JR

BETWEEN

R. R.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

Judgment of Mr. Justice McCarthy delivered on the 28th day of November, 2008.

1. By an order of deValera J. of the 1st November, 2007 the applicant was afforded leave to apply for an order of certiorari quashing

the decision of the first named respondent (“the Tribunal”) of 26th April, 2006, affirming the recommendation of the Refugee

Applications Commissioner against the grant to the applicant of a declaration that he is a refugee, with an associated order of

mandamus compelling the tribunal, on re hearing, to have or cause the applicant’s application to be heard by a member other than

Mr. McHugh whose recommendation is impugned in these proceedings. That leave was granted on the following grounds:-

(1) That the tribunal member erred in law in making adverse credibility findings without having any or any sufficient regard

to a number of documents submitted in support of the applicant’s application, including a medical report, country of origin

information and explanations furnished for perceived discrepancies.

(2) That the tribunal erred in law in making adverse credibility findings on matters which were never put to the applicant,

including matters relating to his travel arrangements.

(3) That the tribunal erred in law and acted ultra vires in failing to consider and assess whether the applicant had a well-

founded fear of persecution for a Convention reason and whether there was a real chance or possibility of persecution for

a convention reason or reasons, if the applicant was refouled to Morocco.

The original Statement of Grounds was dated (merely) May, 2006 and subsequent to the grant of leave an Amended Statement

(seeking relief in accordance with, and on the grounds, afforded by, the order) dated 12th November, 2007 was prepared. It is to this

that a Statement of Opposition was delivered on the 10th March, 2008. Apart from traverses in relation to certain pleas in the

Statement of Grounds, it is pleaded that the tribunal, on the evidence available to it, reaches the conclusion that “the applicant’s

account in support of his claim for asylum was implausible and incredible”, that the tribunal identified five reasons why the applicant

was found wanting in credibility, that having found the applicant was “wholly lacking in credibility”, the tribunal was not obliged to go

on to consider country of origin information, that in accordance with s. 16(16) of the Refugee Act 1999, the tribunal had considered

certain documents (e.g. the Notice of Appeal, the report of the Commissioner pursuant to s. 13), that the tribunal considered “all of

the documentation in the case including the medical evidence”. It was denied in the ordinary way that the applicant was entitled to

judicial review.

The proceedings are grounded on the affidavit of the applicant whereby a significant number of documents are exhibited which

consist of:-

(i) An application to the Minister for a declaration that the applicant is a refugee.

(ii) A document similarly described as an “application” but which is in fact, a questionnaire inter alia affording an ample

opportunity for the applicant, as with all purported refugees, to set out fully the facts and matters upon which he relies in

support of his claim.

(iii) A record of an interview held with an officer of the Refugee Applications Commissioner.

(iv) A purported certificate of registration of the applicant as a student at the University of Marrakech.

(v) A medical report (of one Dr. Morris O’Halloran).

(vi) A medical referral form by the latter to an entity entitled “The Centre for the Care of Survivors of Torture (CCST).

(vii) A report prepared on behalf of the Commissioner pursuant to s. 13(1) of the Refugee Act, 1996 as amended.

(viii) A copy of a visa application seeking permission for the applicant’s entry into the State.

(ix) Certain country of origin information.

(x) Submissions (with additional country of origin information) made on behalf of the applicant to the tribunal on the

occasion of the appeal against the refusal of the relevant recommendation by the Commissioner and further country of

origin information associated therewith.

2. The tribunal’s decision was dated the 26th April, 2006 and was notified to the applicant by a letter of the 11th May, 2006

(received by him on or about the 15th May, 2006).

3. The applicant is a Moroccan national and claims that on 1st May, 2005 he was distributing anti-monarchist leaflets at Marrakech

University. He alleges that he was performing this task in the course of his activities as part of the “National Union for Moroccan

Students” or L’UNEN, the aims of which are said to be the welfare of students and the overthrow of the monarchy on the basis,

apparently, of Marxist Leninism ideas: the arrest, he says was effected by the secret police, that he was kept for two days in a

police station in Marrakech and thereafter brought to a secret location, being taken in the fourth week of custody to a hospital in

Marrakech from which he escaped on 27th May, 2005, and was ultimately assisted to leave the country by an apparently wealthy

benefactor of the student organisation (said to be a friend of the Deputy leader thereof). He says he was resident in the former’s

house in that context for approximately six weeks before departure. The applicant’s says that he flew to Ireland via Paris. His initial

address was given as and remains a hotel at Mary Street, Tralee, County Kerry and his initial application was made at the

Commissioner’s office in Dublin on 18th July, although we do not know why he made his way to Tralee from his point of arrival in the

jurisdiction. He apparently told the tribunal on two occasions that he had arrived in Cork but he had initially stated on his first

approach to the Commissioner that he had arrived in Shannon. He presents a picture of imprisonment at an unknown location and of

being subjected to daily beatings, ultimately ending in the last week of his imprisonment with deliberate electrocution. The purpose of

the torture was apparently to extract from him information about other members of the organisation. He was brought to hospital, or

so he says, at the end of this period, was not placed under guard and he was sufficiently well, apparently, having waited in a toilet

for a period of time, to escape through the window and leave the scene in a rubbish truck. During the period when he was in hiding a

passport was issued to him, as was a visa and he was able to leave Morocco (as a wanted man), only because a bribe was paid to an

airport official. He disposed of his passport on his arrival in the jurisdiction but of course a record exists of his visa application and it is

apparently the case (according to the report prepared on behalf of the Commissioner) that one must attend in person at an Embassy

to obtain such a document. The applicant says that both of these documents were obtained for him whilst he was in hiding. His

benefactor gave him €500 to assist him in his journey to Ireland and the cost of the visa was €2,000, also paid by the same person.

The cost of the bribe is unknown.

4. In any event the applicant contends he is a person who has (Pursuant to s. 2 of the Refugee Acts 1996):

“To a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of particular social group

or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail

himself or herself of the protection of that country or, who, not having a nationality and being outside the country of his

or her former habitual residence is unable or owing to such fear, is unwilling to return to it…”.

At para. 29 of his “Application for Refugee Status Questionnaire”, in answer to the inquiry as to what he fears might happen to him on

his return he says:-

“Fear from imprisonment and torture, and even death might be my destiny in case I returned to my country. The same

destiny of many other political prisoners who disappeared and nothing is known about them until now. In addition, my right

to continue my university studies and that was my great fear in case I returned to Morocco”.

Mr. Mulvihill, at the oral hearing before the tribunal accepted that the applicant’s claim was based effectively on political opinion.

5. Of course, by definition, it is only on the basis of what has occurred in the past that one may form anything in the nature of an

informed view as to whether or not an existing fear of future persecution is well-founded. Accordingly, in many cases an issue of

credibility will arise when refugee status is sought on the ground relevant in this case.

6. Here, the tribunal pointed out (at p. 8 of its decision) that:-

“… it is necessary to examine… the credibility of his account, both subjectively and, if necessary, objectively, having

regard to the country of origin information”.

and that

“The applicant’s claims as to his reasons for flight and fear of return ought to present on an internally coherent and

plausible fashion and should not run counter to generally known facts, and ought to be consistent with objective country

of origin information”.

In this instance, the tribunal held that the applicant’s “account is implausible and quite frankly incredible on a number of accounts and

these are five in number, as follows:-

1. He accepts that the students’ union had meetings with the management of the university which did not have a problem

with its existence, and further accepts that the state authorities were able to influence the university but they did not

expel any of the students. This is a clear internal inconsistency in the applicant’s claim in so far as he says it was

because of his membership of this students’ union which was against the Monarchy which brought about the alleged acts

of persecution.

2. I find it implausible and quite frankly incredible, and the applicant’s evidence did not explain in any believable fashion

how, having been detained for approximately a month and then brought to a hospital, he was left unguarded and merely

went to the toilet and escaped by going out through the window.

3. The applicant through another person got a passport from the Moroccan State and the applicant himself accepts that

he cannot understand why that would have happened, he being a fugitive at the time.

4. The applicant has not throughout the course of the process either at interview or before the Tribunal, evidenced any

hard and fast political beliefs. He claimed he was handing out leaflets against the Monarch, but he never took the

opportunity before me or in any of the documentation to give off his own views about the Monarchy and why it ought to

be abolished.

5. Quite incredibly, the applicant’s passport was issued in Marrakech on the 9th June, 2005, and he applied for a visa to

travel to Ireland on the 10th June, 2005, and notwithstanding the applicant’s assertion that somebody else applied for the

visa, the signature of the applicant is quite clearly the same as his own signature repeated on each page of the interview

sheet. The applicant accepted before the Tribunal that the signature was like his but claimed that it was not his.

7. It appears that on the foregoing basis the tribunal was “quite satisfied” that the applicant had failed to disclose a well-founded

fear of persecution for Convention reasons.

8. The traditional test or threshold for the grant of judicial review of a decision of an inferior tribunal is that stated by Finlay C.J. in

O’Keeffe v. An Bord Pleanála, [1993] 1 I.R. 39 (approving Henchy J. in the State (Keegan) v. Stardust Compensation Tribunal, [1986]

I.R. 642) as follows:-

(a) it is fundamentally at variance with reason and common sense

(b) it is in defence of being in the teeth of plain reasoning and common sense

(c) because the court is satisfied that the decision maker has breached his obligation whereby he “must not fragrantly

reject or disregard fundamental reason or common sense in reaching his decision”.

This test is, of course, that applicable when it is sought to impugn errors of fact as having divested the tribunal of jurisdiction, as

opposed to cases where there has been a failure to observe the principles of constitutional justice or there is no ostensible

jurisdiction to begin with or there is an error on the face of the record. It has, in the relatively recent past, been suggested that this

test is now superseded by that which is known as “the anxious scrutiny test”. It is for this that Mr. Kelly contends in the present

proceedings. I have addressed the application of the appropriate test in this connection in my judgments in B.J.N. v. The Minister for

Justice, Equality and Law Reform and Others, (18th January, 2008) and Mujiberehman Kamil v. Refugee Appeals Tribunal and

Another, (22nd August, 2008) in which I held that the test that in “O’Keeffe”. Mwiza v. Refugee Appeals Tribunal and Anor

(Unreported, High Court, 22nd October, 2008), Kongue v. Refugee Appeals Tribunal and Ors (Unreported, High Court, 29th October,

2008), Bucimi v. Refugee Appeals Tribunal and Ors (Unreported, High Court, October, 2008) and I do not propose to depart from

them.

9. At the hearing Mr. Kelly summarised the grounds upon which it is sought to impugn the decision, by submitting that the tribunal

erred in law in making adverse credibility findings without any sufficient regard to a number of the documents referred to above (by

which I understood him to include the questionnaire, the record of the interview with the Commissioner’s officer, the report of the

latter, the medical report and the country of origin information), that he erred in law in making adverse credibility findings on matters

which were never put to the applicant and that he failed to consider or assess whether the applicant had a well-founded fear of

persecution.

10. Mr. Kelly, dealing with the five credibility issues, says that there is simply no evidence to support the proposition that if the

applicant’s contentions were correct, he would have faced expulsion from university, since the latter would be under the influence of

the State. Obviously, the rational decision maker could not reach such a view without evidence and one would have thought that to

reach a conclusion without evidence would, in any event, be a breach of constitutionally guaranteed fair procedures. Mr. Boyle

sought to suggest that the conclusion was defensible because there was evidence from the applicant to the effect that the

university authorities were happy to deal with the Union even though it was regarded by the State as being subversive in nature: it

was a proper inference of a secondary fact.

11. The second conclusion which has been strongly impugned, pertains to the alleged omission on the part of the applicant to evince

any “hard and fast” political beliefs: it is obvious that if, in truth, the applicant was not, in fact, a committed member of the Union in

question or committed to an anti-monarchist stance, grave doubt would be cast upon the history given by him and, further, the basis

for any supposed well-founded fear of prosecution would be seriously undermined were he to return. In this respect, the tribunal

concluded that “throughout the course of the process either at interview or before the tribunal” or “before (it) or in any of the

documentation” the applicant did not so evince or “give off” his own views. I have no doubt but that the summary of the evidence

given by the tribunal in its decision is accurate and it appears quite clear, even though the applicant was given every opportunity to

explain his position and elaborate his views, that he did not take it to make his case in terms of his political beliefs before the Tribunal

(something which Mr. Mulvihill, his solicitor, agreed was at the root of the case). He did, however, evince such beliefs or give of his

views at interview and in the original questionnaire.

12. With respect to the questionnaire (pp. 8 and 9) having afforded detail of the alleged activities or aims of the National Union party

for Moroccan Students to displace the monarchy (which was considered by them as “slavery and tyranny carried out by the King and

that the people should be given the chance to decide upon their destiny and the direction they want in determining their

democracy”), he states that the organisation turned out to be a “leftist communist Marxist party” (which is something which must be

a rarity nowadays) and that “of course I was convinced with these ideas because they were among my principles that I believed in

and they were sacred to me”. He went on to say that:-

“The Moroccan intelligence was not as we used to say not aware (unaware?) but rather they were watching the

movements of the students who were party members continuously because they considered the party a threat to the

Moroccan Kingship and because I was considered an active, well-known member at the university, known for my efforts

and struggle, I was subject to several harassments by the university police; there was continuous chasing and spying on

the students who were party members.”

13. In the course of interview he was asked (at question 18) about his problems in Morocco and he responded:-

“My problem is political. I was a member of a political party called Students Union of Morocco and of course, in the

Morocco we have different view. When I expressed my views I was detained…”.

Further questioned in relation to the organisation (at question 20) he said inter alia that:-

“Some (unions) have Marxist views and I was a member of a student union which had those views”

and also (at question 22), in response to an enquiry as to why he joined the party:-

“I liked their aims, goal and views and their energy and how they find (?) solutions for student problems.”

an answer which is compatible with other information afforded by him to the effect that he first conceived the organisation as a form

of student’s union in the traditional sense but learned, in due course, of its nature or aims. Further, at question 31, when asked about

the goal of the organisation, he responded:-

“The small aims were to protect and defend students and find solutions for their problem. The big aim of this party is to

get rid of the monarchy in Morocco”.

Whether or not any of these assertions are true is of course an entirely different matter.

14. Irrespective of the truth or falsity of these assertions, the tribunal was plainly in error as to its understanding of what was said by

the applicant, at various times, prior to the oral hearing; in contradistinction the tenor of the evidence during such hearing is that the

applicant was engaged in the organisation in question, particularly in relation to its political activities but the tribunal properly took

the view that there the applicant did not take the opportunity to give evidence in a significant in respect of his political views, as I

have said.

15. With respect to the conclusion that it was “implausible and quite frankly incredible” that the applicant failed to “explain in any

believable fashion” how, after detention for approximately 26 days and subjection to violence which was in human and degrading

treatment and almost certainly torture as that term is generally understood, he was brought to hospital, left unguarded and escaped

through a window from a toilet, there is ample evidence in support of this conclusion. It seems per se implausible that having been

unlawfully detained and subjected to such misconduct the secret police (who have been identified by the applicant as the guilty

party) would show such consideration for him as to bring him to hospital (and it is clear that this is what the tribunal had in mind),

that he might be left unguarded (if he was even there), and that he waited in a toilet until he escaped through a window and was

driven away in a garbage truck.

16. With respect to the conclusion that the applicant was incredible in his assertion that he obtained a passport through another

person when he was a fugitive and, he could not explain how that might come about, the evidence also affords a clear footing for

such a view. By his own admission the applicant’s passport was not a forgery (c) in his original “Application to the Minister for Justice,

Equality and Law Reform” under the heading “other travel details” and according to the visa application the passport was issued on

9th June, 2006, when the applicant says that he was in hiding in the home of a wealthy benefactor of the Union.

17. The tribunal also condemned as incredible the proposition that he applied for a visa to travel to Ireland but did not sign the visa

application form, and in circumstances where he asserted that some other party applied for the visa on his behalf. Again, there is

ample evidence to support this proposition and a trier of fact (whether it be a tribunal of this kind or otherwise) is entitled to form his

own judgment as to whether or not given writing (whether a signature or otherwise) is that of a given individual – no expertise is

required for that purpose. One is entitled, of course, in this connection to look at the visa application itself and any other documents

admittedly signed by the applicant (including, for example, the signatures of the applicant appearing on the note of interview or

indeed his affidavit), to judge the rationality of this conclusion and it appears to be eminently so.

18. It is, of course, the position that since a tribunal of fact is entitled to reach conclusions only on the basis of evidence, it is, in my

view, a breach of fair procedures and hence constitutional justice to make a finding which is unsupported thereby.

19. It seems to me that, accordingly, the conclusions of fact, other than those pertaining to expression of views, are capable of

being rationally supported or, to put the matter in an other way, and using the words of the “O’Keeffe” test, none of them are

“fundamentally at variance with reason and commonsense”, are not “indefensible for being in the teeth of plain reason and

commonsense” and the court could not be satisfied that “the decision maker has breached his obligation whereby he must not

flagrantly reject or disregard fundamental reason or commonsense in reaching his decision”. The tribunal rightly said at (p. 8) that:

“In assessing … an applicant’s alleged fear and the subjective element of same, it is necessary to examine the personal

situation which allegedly places the applicant in harms way and to examine the credibility of his account, both

subjectively and, if necessary, objectively having regard to the country of origin information”.

and also that:-

“The applicant’s claim as to his reasons for flight and fear of return ought to present in internally co-herent and plausible

fashion and should not run counter to generally known facts, and ought to be consistent with objective country of origin

information”.

20. In considering the matter the tribunal had regard to the documents or other matters referred to in s. 16(16) of the Refugee Act.

21. It follows that the finding pertaining to the advancement or articulation by the applicant of his political beliefs (the fourth above)

is, accordingly the only finding which is insupportable and could attract the epithet of irrational, or flying in the face of reason and

commonsense (on the evidence).

22. It seems to me that in its conclusions, the tribunal appears to have clearly misunderstood or misstated the evidence. In this

respect, I do not think that it could be successfully asserted that the point upon which the misconception or misstatement arose is

peripheral since it bears upon political views of the applicant, in a case where he alleges that because of those views he has a well-

founded fear of persecution. The other matters addressed giving rise to adverse findings as to credibility are peripheral to the core

issue of persecution on political grounds. At the risk of repetition, I stress that credibility is frequently judged by reference to

collateral matters; thus, it seems to me, that there could not be any criticism of a decision, say, of the Refugee Appeals Tribunal if

extensive findings of want of credibility on collateral or peripheral matters founded a conclusion as to credibility on what might be the

main question (e.g. whether or not a person might be subject to persecution on political grounds). It seems to me further, that as a

matter of principle, there is no reason why a decision should not stand even if it is not possible to sustain some one, if not more than

one, adverse credibility finding on such collateral matters or peripheral matters, per se. Further, it seems to me that a misstatement,

misconception or misunderstanding in relation to a factual matter (even one relied upon in reaching a conclusion) may, in very many

cases, not be fatal in as much as it may be severable from any ultimate conclusion. It is hard, however, to see how severability could

arise in respect of a misconception as to the evidence on such a core point as that which arises here. It seems to me that it must

infect and undermine the adverse conclusion on credibility as to the main issue here, which actuated the Tribunal in affirming the

adverse decision of the Commissioner.

23. I am assisted in the foregoing conclusions by the decision of Tabi v. Refugee Appeals Tribunal (Unreported, High Court, 27th July,

2007), Peart J. where the latter stated that:-

“It is not desirable that a decision be parsed or analysed word for word in order to discern some possible infelicity in the

choice of words or phrases used and to clearly hold that a finding of credibility is invalid, unless the matters relied upon

have been clearly misunderstood or misstated by the decision maker. The whole of the decision must be read and

considered in order to reach a view as to whether, when the decision is read in its entirety and considered as a whole,

there was no reasonable basis for the decision maker reaching that conclusion. If a decision maker makes a significant and

material error in how the evidence is recorded, or other error of fact, then of course the process by which credibility has

been assessed falls short of what is required by constitutional justice.”

It seems to me that in the present case we are not talking about “an infelicity in the choice of words or phrases” but that rather, as

enjoined by Peart J., when one looks at the decision of the Tribunal in the round (including the material which was considered by the

Tribunal, such as the contents of the questionnaire or what was stated at interview) the class of deficiencies identified by Peart J. as

fatal, exist.

24. I have been referred to X. v. Refugee Appeals Tribunal and Ors (Unreported, High Court, Herbert J. 11th December, 2007), where

it was inter alia contended that the Tribunal’s decision was bad because of a failure to address or refer to a medical report of 21st

September, 2004. Having regard to the contents of the report it was submitted on behalf of the Tribunal that the oversight in

question was irrelevant. In particular, it appears that there was evidence of the existence of certain striae on the applicant’s body

(the contention of the applicant being that he had been subjected to violence and that, at least by implication, such striae were the

results thereof). Herbert J. considered that the error was not “sufficiently material in itself to constitute a sufficient reason to remit

the matter to (the Tribunal) for rehearing”. Thus, errors may or may not be of such materiality as to undermine the decision: this is

not, however, the case here. Mr. Kelly has submitted that if any one of the five conclusions in question is successfully impugned, the

decision would fall. I do not accept that this is so: the key point is that there is a fatal error or misconception as to the evidence on

a core issue and it might be quite different if any one (and perhaps more than one) of the other conclusions were to be held

unfounded. Mr. Boyle, of course, agreed that the decision stood or fell on the five reasons or grounds advanced for the finding of

want of credibility. Very fairly, he conceded that the applicant’s position with respect to the ground pertaining to expression of

political belief “might have some substance”. Mr. Boyle sought to contend, however, that the finding in this regard was a finding

based on the interview and the Tribunal hearing itself “primarily”, such that there was no material error. This, I do not accept.

25. I do not doubt, of course, that as pointed out by Peart J. in Sango v. Refugee Appeals Tribunal, (Unreported, 24th November,

2005) that in considering credibility issues (e.g. collateral matters) they might be so peripheral to the core issue as not to justify an

overall adverse credibility finding and that:-

“There must be a cogent nexus between the matters upon which the application has been found not to be credible and

the core issue in his application.”

26. The question arises, accordingly, as to the effect or consequence of this finding. By virtue of the findings on credibility, the

tribunal concluded:-

“In all the circumstances I am quite satisfied that the applicant has failed to disclose a well-founded fear of persecution

for a Convention reason”.

27. There is such a nexus here, but because there is fundamental error on the single most significant matter on which a want of

credibility has been founded, it cannot support that ultimate conclusion.

28. I do not find it necessary to address the other issues arising, having regard to my conclusion and hence I quash the decision of

the tribunal, and remit the matter to it to be determined according to law.