High Court dismisses judicial review where applicant failed to prove objective risk of future persecution in Georgia.

Neutral Citation [2014] IEHC 374

THE HIGH COURT

JUDICIAL REVIEW

[No. 2009/1080/J.R.]

BETWEEN

E. S.

APPLICANT

-AND-

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND

IRELAND

RESPONDENTS

JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 22nd day of July 2014

1. This is a 'telescoped' application for leave to seek judicial review by a Georgian national seeking certiorari of a decision of the

Refugee Appeals Tribunal (the "Tribunal") dated 18th September 2009. The decision of the Tribunal proceeded on the basis of a

determination on the papers only following a finding under s. 13(6)(a) of the Refugee Act 1996 at first instance dispensing with an

oral hearing. The decision of the Tribunal affirmed the recommendation of the Refugee Applications Commissioner refusing the

applicant refugee status.

Background:

2. The applicant was born on 27th June 1980 and is from the district of Gori in Georgia. He states that he left Georgia on the 12th

August 2008 and arrived in Ireland on or about the 15th or 16th August 2008. He claimed asylum in the State on the 29th August

2008. The applicant claims that he fled Georgia arising from the conflict between Russia, South Ossetia, Abkazhia and Georgia and

because of his fears of imprisonment on account of his refusal to be conscripted into the Georgian Army. The applicant states that he

evaded being drafted into the army as he has a conscientious objection to violence and could not take up arms against another

human being.

Tribunal Decision:

3. The 'Analysis of the Applicant's Claim' in the Tribunal decision of 18th September 2009 is set out in three paragraphs and comprises

three findings in relation to credibility. Firstly, the Tribunal Member states that the applicant did not provide any information in relation

to his fear of returning to his country of origin because of evading conscription into the army. In this regard the Tribunal notes that

the applicant retained the services of the Refugee Legal Service from 4th September 2008 and finds that he did not provide a

reasonable explanation for failing to seek their advice with regard to providing this correct information. Further, in this regard the

Tribunal Member also notes that the applicant was educated to university level in Georgia and concludes that his evidence is neither

plausible nor credible and that it undermines his credibility. Given its centrality it is worth setting out the paragraph in its entirety:

"The Applicant did not provide any information in relation to his fear of returning to his country of origin because he

evaded the draft to the reserve army. In light of the fact that he retained the services of the RLS on the 4th of

September 2008, the Applicant did not provide a reasonable explanation for failing to seek the advise of the RLS in

relation to providing the correct information. The Applicant has been education to university level in his country of origin,

therefore, I conclude that his evidence is neither plausible or nor credible and I find it undermines his credibility."[sic]

4. Counsel for the applicant has sought to deconstruct this text in a manner not warranted by its proper meaning. The applicant has

urged the court to consider each sentence in isolation and made submissions in respect of: i) the failure of the applicant to provide

information; ii) the failure to provide a reasonable explanation for failing to seek the advice of the Refugee Legal Service; and iii) the

finding that the applicant has a university education and that his evidence is neither plausible nor credible. However, it is clear to the

court that these sentences were meant to be read as a coherent whole rather than in isolation. The primary finding in the above

paragraph is the failure of the applicant to provide supporting information in respect of his claim that he fears returning to his country

of origin because he evaded being drafted into the army. The next two sentences are ancillary and in support of the primary finding,

namely: that the applicant failed to provide a reasonable explanation for his failure to seek the advice of his lawyers in relation to

providing this information despite the fact that he had legal representation from 4th September 2008; and that given his standard of

education to university level the evidence he gave by way of explanation in this regard is not plausible or credible.

5. The Tribunal also makes a finding pursuant to s. 11B(f) Refugee Act 1996 to the effect that the applicant provided incorrect details

as regards how he travelled to the State, claiming first that he travelled by ship via Turkey and latterly admitting that he had flown

via Istanbul and Frankfurt. The Tribunal found this undermined the applicant's credibility. Further, in light of this, the Tribunal Member

made a finding that the applicant did not provide a reasonable explanation to substantiate his claim that Ireland was the first safe

country he arrived in since departing his country of origin. The Tribunal had regard to s. 11B(b) Refugee Act 1996 and found that the

applicant's credibility was undermined in respect of his account of his travel to the State.

Submissions:

6. Counsel for the applicant, Mr. de Blacam S.C., contends that contrary to the Tribunal Member's initial assertion that the applicant

did not provide any information in relation to his fear of returning to his home country, the applicant gave detailed evidence in relation

to his refusal to be conscripted at his s. 11 interview. In the interview, the applicant recounted how his friends had told him that

others who had evaded conscription were now imprisoned and counsel also points to the four notices supplied by the applicant

requesting him to attend for military service in the Georgian Army as evidence supportive of his claim.

7. In finding that the applicant failed to provide a reasonable explanation for failing to seek the advice of the Refugee Legal Service it

is submitted that the Tribunal Member failed to have any regard to the evidence of the applicant at the outset of his s. 11 interview

confessing that he had erroneously taken the advice of the woman with whom he was staying at the time. The substance of that

evidence was that the applicant had placed his trust in this woman who had organised his travel to the State and had told him to

hide certain facts and to present himself in a certain way. Counsel for the applicant states that this confession was not prompted by

the applicant being 'caught out' but rather was made voluntarily at the outset of the s. 11 interview. The applicant claims that it was

"an egregious breach of fair procedures" for his replies in relation to this issue (which the applicant states the Tribunal ultimately

found went against his credibility) to be ignored by the Tribunal, particularly in the situation where there was no oral appeal in this

case. The applicant goes on to criticise the finding of the Tribunal in respect of the standard of education achieved by the applicant

as being impermissibly broad and vague as well as the nexus between the credibility of the applicant and his education being unclear.

8. With regard to the Tribunal Member's findings that the applicant was in breach of the terms of s. 11B(f) Refugee Act 1996, counsel

submits that the explanations provided by the applicant at the outset of his s. 11 interview referred to above are also relevant in

relation to this finding. The applicant asserts that any fair minded assessment of this evidence would be that the applicant had 'come

clean' in relation to the manner and methods by which he travelled to the State and that an explanation for his previous claims was

voluntarily proffered at the outset. In this regard, the applicant urges the court to have reference to Para. 199 of the UNHCR

Handbook.

9. Finally, the applicant refers to the finding of the Tribunal Member pursuant to s. 11B(b) Refugee Act 1996. In this regard, the

counsel denies that the applicant claimed that Ireland was the first safe country in which he arrived following his departure from his

country of origin and that s. 11B(b) was not of application. In any event, counsel submits that the applicant provided a clear

explanation as to why he did not apply for asylum en route to the State owing to his dependence on the agent he was travelling with,

his inexperience of such travel and his lack of knowledge about claiming asylum.

10. The respondent at the outset makes complaint that the applicant in his submissions relies on a broad number of grounds which are

general in nature and lack the particularity required by O. 84 RSC. In focussing on the main grounds critical of the Tribunal's finding,

the respondent claims that the applicant failed to produce any country of origin information at first instance or at the appeal stage

directly pertinent to or supportive of his claim that he would suffer some form of punishment for evading conscription. Ms. Cogan B.L.

notes that the applicant claimed that he had been told by his uncle and friends that he would be severely punished but was not in a

position to provide any clear evidence of what such punishment would be or whether it would amount to persecution.

11. In relation to the applicant's claim that the Tribunal failed to explain why the explanation given by him in relation to his failure to

seek the advice of the RLS was deemed be unreasonable, counsel refers the court to the decision of Clark J. in MS.A. v. Refugee

Appeals Tribunal (Unreported, High Court, 13th October 2009). In that case Clark J. refers to the obligations on an applicant to co-

operate with the investigation and to furnish relevant documentation imposed by s. 11C Refugee Act 1996 and states:

“The Tribunal Member, as any other decision maker, was entitled to view all evidence furnished by the applicant

thereafter with a degree of scepticism. The Court is not all convinced that the failure to recite both excuses (even if

actually goven by the applicant orally) was a breach of fair procedures. Several previous decisions of the High Court

support the proposition that a decision maker is not obliged to recite all arguments and address each one in turn - see the

judgment of Clarke J. in Muia v. Refugee Appeals Tribunal [2005] I.E.H.C. 363 and that of Muanza v. The Refugee Appeals

Tribunal (Unreported, High Court, Birmingham J., 8th February, 2008). The argument that the Tribunal Member failed to

consider the applicant's reasons for lying is not made out."

Further, it is submitted by the respondent that it is clear that the Tribunal found that the applicant failed to provide any cogent

reasons for his deference to the agent's advice as to how he should present his claim. Finally, in this regard counsel for the

respondent claims that the Tribunal Member was entitled to assess the applicant's evidence in light of his claim to have been

educated to university level in his home country and to make an adverse finding as to the credibility of his claims in that context.

12. In respect of the next finding of the Tribunal, the respondent asserts that it is well within its jurisdiction to refer to the terms of

s. 11B Refugee Act 1996 and to make negative credibility findings in relation to the manner which false information was proffered in

this regard. The respondent denies that any “disproportionate weight” was placed on such findings and notes that the applicant has

not supported such a claim with an evidence.

13. Finally, with regard to the Tribunal Member’s finding in relation to s. 11B(b) Refugee Act 1996, the respondent claims that it is

implicit in the applicant’s claim for asylum that he maintains that Ireland was the first country in which he could claim asylum. It is

asserted that the negative credibility finding reached by the Tribunal in light of the explanation by the applicant of travelling through

a number of countries prior to arriving in the State was reasonable in the situation where the applicant did not provide any

documentary evidence of his journey.

Findings:

14. The first and in my view the main reason (quoted at paragraph 3 above) given by the Tribunal Member for rejecting the asylum

claim is terse. Nonetheless, it encapsulates the obstacle faced by the applicant in securing refugee status in Ireland. I have carefully

read the completed Asylum Questionnaire and the account of the s.11 interview conducted by ORAC and the contents of the

applicant's Notice of Appeal. The applicant is at pains to describe his objections to serving in the Georgian military and the trauma he

suffered in South Ossetia during the military conflict between Georgia and Russia in August 2008.

15. However, the applicant fails to establish by any objective means (even to the most minimal degree) what negative consequences

might befall him should he return to Georgia by reason of his failure to answer the call to military service. The Tribunal Member's

observations on this are correct though I would not conclude that the failure thereby undermines credibility. In my view the identified

flaw is more associated with a failure to meet what is referred to as the forward looking test as to the likelihood of future persecution

rather that a general credibility issue. However this is not a sufficient criticism of the approach of the Tribunal Member to warrant

quashing the decision.

16. It is central importance in an asylum claim that an applicant establish a well founded fear of persecution. The requirement that

the fear be well founded means that the applicant's fear must be shown to exist subjectively and in addition that there is some

objective support for that fear. It is a matter for the applicant to make out both the subjective and the objective elements of the

fear in order to persuade the decision makers that the applicant has a well founded fear of being persecuted. Incontestably, the

applicant has failed to make out the second element of the claim and this failure has been identified by the Tribunal Member.

17. Two other reasons are stated for refusing refugee status. I accept the argument made that the differences in the accounts of his

travel to Ireland are probably peripheral and the resulting negative credibility finding a little harsh. In addition the Tribunal Member's

remarks as to the applicant's failure to seek asylum in other countries en route in my view incorrectly state the law as a failure to

make an asylum claim in a third country attracts negative consequences only if an asylum applicant claims that Ireland was the first

safe country encountered in flight from country of origin (see FT v. Refugee Appeals Tribunal [2013] IEHC 167) and I accept that no

such claim was made in this case.

18. In my view the three reasons given for rejecting refugee status are severable inter se and even if some legal error infected the

second and third reasons given, the first reason identifying the failure of the applicant to meet the forward looking element of the

test is sufficiently robust to overcome the applicant's complaints and I therefore refuse leave to seek judicial review in this telescoped

application. ( As to severability of reasons see Talbot v. An Bord Pleanala [2008] IESC 46 and A.A. [Pakistan] v. Refugee Appeals

Tribunal (Unreported, High Court, 18th September 2013, Mac Eochaidh J)