High Court dismisses judicial review application against Refugee Appeals Tribunal decision on asylum claim.

Neutral Citation [2015] IEHC 584

THE HIGH COURT

JUDICIAL REVIEW

[2013 No. 12 J.R.]

BETWEEN

R.A.

APPLICANT

AND

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

RESPONDENT

JUDGMENT of Mr. Justice Eagar delivered on the 17th day of September, 2015

Introduction

1. This is a telescoped application seeking an order of certiorari in respect of the decision of the Refugee Appeals Tribunal

(hereinafter referred to as “the Tribunal”) to affirm the decision of the Office of the Refugee Applications Commissioner (hereinafter

referred to as “the ORAC”) that the Applicant not be declared a refugee in accordance with section 2 of the Refugee Act 1996 (as

amended) (hereinafter referred to as “the Act of 1996”).

2. The relief sought are as follows:

a. An order of certiorari by way of an application for judicial review quashing the decision of the first named respondent

to affirm the decision of the ORAC;

b. A declaration that the Act of 1996 is incompatible with Article 39 of Council Directive 2005/85/EC,

c. A declaration that the respondents have failed to provide the applicant with an effective remedy before a court or

tribunal within the meaning of Article 39 of Council Directive 2005/85/EC;

d. If deemed necessary, a declaration that the time limit imposed by section 5 of the Illegal Immigrants (Trafficking) Act,

2000 (hereinafter referred to as ‘the Act of 2000’) is not in compliance with the principles of equivalence or effectiveness,

or, in the alternative, an order proving for an extension of time herein insofar as same is necessary;

e. If necessary, an injunction prohibiting the second named respondent from further processing or determination of the

applicant’s claim or proceeding with any further proposal to make a deportation order in respect of the applicant pending

the determination of the within proceedings;

f. Such further or other order as this Court may deem meet.

3. The grounds on which the relief were sought are as follows:

a. The Tribunal erred in law in determining the applicant’s appeal without having any adequate regard to the arrest

warrant submitted by the applicant, and in basing credibility on the translations of the said warrant.

b. The Tribunal made repeated errors of fact and otherwise misconstrued the evidence in :

i. Stating that ‘F’s family accused him along with the Awami league people’ – this is a matter of significance where

the Applicant fears the Awami league;

ii. Stating that ‘the entirety of the Applicant’s claims has it’s foundation in the fact that there was an incident

between the Bangladeshi National Party (hereinafter referred to as “the BNP”) members and the Awami league – this

is significant because the said incident was preceded by a history of association with the BNP, and the Tribunal

failed to examine the applicant’s claim on the basis of imputed political opinion;

iii. Finding that it was highly significant that the applicant was not arrested, without having regard to the arrest

warrant, applicant’s evidence, and supportive country reports;

iv. Finding that the applicant’s refusal to go to the police for fear of immediate arrest ‘does not make sense’. No

reason is given to support the said finding;

v. Failing to offer any reason to support the proposition that newspaper/internet reports on the killing of an Awami

League member would be available. This finding was exacerbated by the manner in which the Tribunal considered

the arrest warrant;

vi. In making a credibility finding in respect of the applicant not being located at his sister’s home, without regard to

the evidence that the applicant was in hiding.

c. Having determined the appeal substantially on the basis of adverse credibility findings, the Tribunal erred in law in

foreclosing on any lawful consideration of the likelihood of the applicant being exposed to persecution in the future.

d. The Tribunal erred in law in failing to adequately consider the notice of appeal and country of origin reports supportive

of the applicant’s claim.

e. The Tribunal erred in law in taking into account matters irrelevant to its determinations and/or failed to take into

account relevant considerations.

4. The statement of grounds was grounded on the affidavit of the applicant, R.H., sworn on 9th January 2013. The applicant avers

that he is a Bangladeshi national who was born on 20th October 1977. He was a supporter and associate of members of the BNP, and

was implicated by association in the killing of an Awami League member. A result of which is he believes he would not receive a fair

trial and fled the country “in fear of [her] life”. He arrived in the State on 29th August 2012, and applied for asylum. He was

subsequently interviewed pursuant to section 8 of the Act of 1996 on 30th August 2012. By letter dated 11th October 2012 the

Refugee Applications Commissioner, in accordance with s.13 of the Act of 1996, recommended that the applicant not be declared a

refugee.

Decision of the Refugee Appeals Tribunal

5. A notice of appeal was submitted to the Tribunal along with grounds of appeal and country reports, by letter dated 30th October

2012.

6. The hearing of the Tribunal took place on 6th December 2012. The report notes that the applicant’s claim was based, inter alia, on

the grounds of appeal as contained in the form 1 notice of appeal and the submissions therein, the country of origin supporting

information, supporting documentary evidence and the submission outlined in the oral appeal. Further submissions, a fresh translation

of an arrest warrant, and further country reports were submitted to the Tribunal by letter dated 29th November, 2012.

7. In respect of the applicant’s claim the report noted that the applicant presented as a 35 year old Bangladeshi national who had to

leave his home country in fear of his life having been implicated as a suspect in a murder. The applicant told the Tribunal that he was

supporter of the BNP, often contributing money to friends in the party and socialising with it’s members, at his home or the tea stall

where he used to go after work and discuss politics. This led to an physical incident between two friends of the applicant, M and F,

members of the BNP and Awami League respectively. The applicant said that with the help of other friends, they managed to restore

peace. The applicant said that the situation returned to normal thereafter. This incident occurred in or about March.

8. The applicant stated that one month later there was an armed fight between the BNP and Awami League which occurred

approximately three kilometres from the tea stall. The applicant claimed that he was not present at the altercation but details that

both sides went into the fields with guns. He claimed that M allegedly shot F. At this time, the applicant said he was at the building

site and was informed of the shooting by a friend. The applicant told the tribunal how he was accused of murder and continued that

F’s family accused him of this along with the Awami League, who the applicant said, knew that he was a supporter of the BNP.

9. The applicant told his brother of the accusation against him and his brother proceeded to go to the police station and speak to the

officer commanding (“OC”) stating his brother’s innocence. The OC said it was the victim’s family/Awami League who submitted the

case. The applicant was never charged with any office and he did not attend the police station “as they would have arrested him at

once”. The applicant said that many times his brother tried to help him. He stated that the police had said that the incident had

nothing to do with them. Although the applicant came to know that the police, rapid action battalion (“BAT”) and crime investigation

department (“CID”) had come to his house to try and find them. In the course of which they verbally abused his family and had come

every two to three days following the murder.

10. Following the murder the applicant went to his sister’s house in Jaipurabad, a journey of 5 – 6 hours by bus. He was never tracked

down there and he resided there for three months. He has had no contact with his sister since leaving. The applicant’s brother

informed him that he was not safe and that he was trying to send him abroad.

11. The applicant, who possesses no passport, claimed to have travelled to Ireland by ship, a journey of 37-38 days. The journey,

which was financed by his brother, was organised by both he and an agent. He firstly boarded a cargo ship in Chittagong and was on

board for 17-18 days. He did not know what country he arrived in and he had two agents accompanying him. He walked off this ship

and onto another one and states that he did not know about immigration. He remained on this ship for another 19-20 days, landing in

Ireland very early in the morning. He states that immigration were there but they did not ask for documents. There were no other

passengers on the ship according to the applicant.

12. The applicant further stated to the Tribunal that he was happy with the translation of his arrest warrant on file, which he

received by post.

13. The applicant believes that his life would be in danger if he was deported. He stated that if the RAB find him he will be shot. If the

police find him he will be sentenced to death.

14. In the analysis of the applicant’s claim the respondent indicated that in the round the applicant’s claim is “extremely tenuous”. It

was noted that despite being blamed for a murder by member of the Awami League and the assertion that he would be arrested and

persecuted by police upon return to Bangladesh, it is significant that the applicant was never arrested or charged with this murder in

the three months prior to leaving Bangladesh. Given that the applicant is basing his application for asylum upon the convention ground

of political opinion in that the applicant’s claim has its foundations in an incident between BNP members and the Awami league, an

incident which ultimately resulted in him being accused of murder, in circumstances where the applicant was not an (official) member

of any political party. The respondent found it illogical that the applicant would be targeted for this murder in circumstances where he

was not a member of any political party. The respondent stated that “it must remembered that he did not even have a party card”.

15. The respondent found it illogical how the applicant, following the murder between the two political party members, was scared in

circumstances where he had an alibi and where there were numerous other people present who could have been suspected of, or

blamed for the killing. The respondent found it further illogical and non-sensical that the applicant was blamed in circumstances where

he was not even present at the scene. He found it incomprehensible that the applicant chose not to remain in Bangladesh to

vindicate his name, in circumstances where “he had very strong grounds for fighting the claim”.

16. The respondent drew the distinction between a fear of persecution and a fear of prosecution. While the respondent acknowleged

objective evidence to the effect that people are sometimes wrongly accused of a crime in Bangladesh, there was no compelling

evidence in the case suggestive that the applicant was the victim of a witch-hunt at the hands of the police. Just because the

applicant’s name was put forward as a suspect was not conclusive that he would be either charged, arrested, prosecuted or

convicted. Even if the police did investigate matters, there was no cogent evidence to show that the applicant was going to be

blamed for the murder. To the respondent, the fact that the applicant was reported as being a suspect yet not pursued by the police

in this respect highlighted that the applicant’s situation was not one where the police were adamant and determined to prosecute the

applicant.

17. The respondent found it significant that the information proffered by the police in response to a request by the applicant’s brother

that the applicant was listed as the third accused person for murder and was ultimately suggestive that the two preceding individuals

would be found guilty of the murder. The respondent felt that this undermined the applicant’s contention that he was a wanted man.

The respondent proposed that if he was wanted for murder “he would have been picked up by the police in the immediate aftermath

of the murder, for questioning”.

18. The respondent found it not credible and undermining to a significant part of the applicant’s testimony, that he would be able to

spend three months undetected in his sister’s house without being intercepted by his accusers or by the police, given the nature of

the charges against him.

19. In response to a question about whether or not there had been a court case in relation to the murder the applicant replied that

“when he was in Bangladesh, the matter had only been submitted to the police” and that he did not know of any court cases since

then. It was put to him that it was strange how he was scared of a court case yet failed to make any enquiries in relation to the

outcome, he then asserted that “whoever had accused him of murder had run away”. The respondent said that it does not make

sense that the applicant is scared of being arrested and brought to court in circumstances where he has failed to make any enquiries

as to the progress of the case. The respondent would have expected a person in the applicant’s position to make enquiries using any

means to see if or how the murder case is progressing. This inaction on the part of the applicant raised questions as to the

genuineness of the applicant’s claim. The respondent noted that the applicant’s claim that his accusers had run away was suggestive

that they were not pursuing their claims and may not even be available if a case did come up.

20. The applicant did not have any objective information or newspaper reports in the alleged murder. The respondent deemed this

surprising if such a matter were not reported in the media, considering the scale of the fight and the fact that an Awami League

member was murdered. The Tribunal had regard to a lot of country of origin information in this respect and found many reports

relating to incidents such as that described by the applicant/.

21. The applicant claims that his brother organised his trip to Ireland, who did not tell of his final destination asserting that he was

“going to a safe place”. When it was put to the applicant that it was not credible that he did not ask his brother what his destination

was the applicant did not answer. The respondent felt it was bizarre that the applicant’s brother would put him on a ship and omit to

tell him of his destination. It was even more strange that an articulate and intelligent man like the applicant would fail to ask such an

obvious question. The applicant’s claim in this regard was weakened by this aspect of his evidence. In the course of his journey,

previously discussed above, the applicant claimed he successfully travelled without having any problems with immigration, he claims to

have merely “walked off of the ship on arriving in Ireland”, although immigration were allegedly present, they did not ask him for

identification. The applicant’s evidence in this respect is implausible, according to the respondent, particularly in light of heightened

checks and balances at all international ports and airports post 9/11. It was not plausible that the applicant managed to transit from

Bangladesh, transiting one country and alighting in Ireland without ever having to show a passport.

22. In relation to the applicant’s brother attending the police station to determine whether his brother was a suspect, the fact that

the police freely offered this information did not make sense, especially in circumstances where he was not yet arrested. If it were

the case that the applicant’s brother did go to the police station to find out information, the respondent would have expected that

the police might question him as to the actual whereabouts of his brother. However, this does not appear to have been done.

23. The applicant is relying on the convention ground of political opinion and has claimed to have been friendly with BNP members and

to have regularly donated money to the party. However, he does not have a deep knowledge of the politics of the BNP, at interview

he said that he did not know the objectives of the BNP.

24. The applicant claims to have been a wanted man yet he managed to leave the borders of Bangladesh without being intercepted

by police. If it were the case that the applicant was a murder suspect, it would be expected that the police would have ensured that

he did not leave the country without the matter being investigated fully.

25. The respondent referred to two copies of an arrest warrant on file. However there is contradiction as to the name on the

document. The name on the first arrest warrant is ‘Roja A’, however the applicant present himself to the Tribunal as R.A.. The

respondent acknowledged that this may well have been a typographical error or a clerical mistake. However the respondent stated

that one would expect an official legal document to properly identify the individual it is aimed at. Significantly the copy birth

certificate referred to ‘R.A’, this is a direct contradiction to the arrest warrant. The applicant, after the section 13 report, submitted

another copy translation of the same document submitting that the first one was incorrect. There is no evidence that the second

copy translation was translated by a certified body or organisation, while the first copy translation was certified by the ORAC

translation project. The problem faced by the Tribunal on this point is that there is nothing to show that the second translation is

legitimate translation. The inconsistencies between the documents were unhelpful to the Tribunal and did not assist the applicant’s

claim.

26. By letter dated 18th December, 2012 and received on or about 28th December, 2012 the applicant was notified that her appeal

had been unsuccessful.

Submissions by Counsel for the Applicant

27. Submissions by the counsel for the Applicant related to the decision of the first named respondent which, it was argued, was

made in disregard to certain pertinent country of origin information and the Applicant’s own evidence. It was further submitted by

counsel for the Applicant that the decision was tainted by “not cogent or even rational” reasoning.

28. It is argued that the Tribunal member arrived at their negative decision having made certain adverse credibility findings in relation

to inter alia the fact that the Applicant was not arrested or charged with the murder. This reasoning is irrational and not cogent. It is

nonsensical to assume that the Applicant was not a ‘wanted man’ simply because he was ranked third on a list of potential suspects

to the murder. It was similarly found that, “It is simply not credible that he [the Applicant] would have been able to go under the

radar for three months without being intercepted by his accusers or the police”. The latter finding, it was argued, was irrational and

lacking in cogency. It failed to take into account the fact that the Applicant had moved location, taking up residence with his sister,

prior to departing Bangladesh.

29. Counsel for the Applicant argued that the Tribunal member failed to have adequate or appropriate regard for country of origin

information and for the Applicant’s own evidence in making her findings. In failing to have substantial regard to country of origin

information, the Tribunal is alleged to have failed to arrive at a decision complaint with Regulation 5(1)(a) and (b) of the EC (Eligibility

for Protection) Regulations 2006 which mandate an assessment of “all relevant facts as they relate to the country of origin” and

“documentation presented by the protection applicant”.

30. Further, the Tribunal Member is alleged to have failed in various ways to the Applicant’s own evidence in arriving at issues

pertaining to credibility. Cooke J stated in IR v Refugee Appeals Tribunal [2009] IEHC 353 that;

“The assessment of credibility must be made by reference to the full picture that emerges from the available evidence and

information taken as a whole, when rationally analysed and fairly weighed. It must not be based on a perceived, correct

instinct or gut feeling as to whether the truth is or is not being told”

Counsel argued that the Tribunal member had no basis for finding that the Applicant’s story or parts thereof were impossible. Counsel

proposed that “they are certainly not beyond human experience of possible occurrences”. As Cooke J said in the aforementioned case

of IR:

“A finding of lack of credibility must be based on correct facts, untainted by conjecture or speculation and the reasons

drawn from such facts must be cogent and bear a legitimate connection to the adverse finding”

Counsel noted that certain reasoning in the decision of the Tribunal member was “muddled”.

Submissions by Counsel for the Respondent

31. It is asserted by the Applicant that the Tribunal member erred in law in determining the applicant’s appeal without having any

adequate regard to the arrest warrant submitted by the Applicant and in basing credibility findings on the translations of the warrant.

32. Counsel for the respondent submits that the Tribunal member did not accept the credibility of the events as outlined by the

Applicant. Counsel further made reference to the repeated errors of fact made by the Tribunal member, as alleged by the Applicant.

The repeated errors of fact are as follows:

a. The Tribunal failed to examine the applicant’s claim of imputed political opinion

b. The finding that it was highly significant that the applicant was not arrested in disregard to the arrest warrant, the

applicant’s evidence and supportive country of origin information.

c. No reason was proffered in support of the finding that the applicant’s refusal to go the police for fear of immediate

arrest “does not make any sense”.

d. The failure to offer any reason to support the proposition that newspaper/internet reports on the Awami League

member would be available.

e. The final alleged error of fact related to the credibility finding in respect of the Applicant not being located at his

sister’s home without regard to the evidence that the applicant was in hiding.

33. Counsel for the applicant complained that the respondent failed to apply a forward looking test. However, counsel for the

respondent argue there was no requirement for this as they given there was not “one scintilla of any objective evidence” pertaining

to the alleged murder.

34. It is further contended that the Tribunal erred in failing to adequately consider the notice of appeal and the country of origin

information.

Discussion

35. The function of the High Court in Judicial Review is confined to ensuring that the process by which the conclusion has been

reached is legally sound and not vitiated by any material error.

36. Cooke J. in I.R. v. The Minister for Justice Equality & Law Reform and the Refugee Appeals Tribunal [2009] IEHC 353, states:

“It is because in such cases the judgment of the primary decision-maker must frequently depend on the personal appraisal

of an applicant, that it is not the function of the High Court in judicial review to reassess credibility and to substitute its

own view for that of the decision-maker. Its role is confined when a finding of lack of credibility is attacked, to ensuring

that the process by which that conclusion has been reached is legally sound and not vitiated by any material error of

law.”

37. The Respondent in this makes a number of findings in relation to both the credibility of the Applicant and the likelihood of his being

persecuted as a result of the circumstances giving rise to this claim, that is that he was not present at the killing of one friend by

another friend, but was a suspect.

38. The Respondent, at the beginning of his analysis of the Applicant’s claim, describes the Applicant’s claim as extremely tenuous,

and notes that it is significant that the Applicant was never arrested or charged with this murder in the three months prior to his

leaving Bangladesh.

39. The respondent further notes that there is a large amount of country of origin information, and says that he is aware of the fact

that there is a large element of corruption within the judiciary and the police force in Bangladesh. He then says that he must assess

whether the story which is relayed by the Applicant at the hearing actually happened to him.

40. In this context, he also says that it must be remembered that a fear of persecution is separate and distinct from a fear of

prosecution. Another credibility finding was the fact that the Applicant was reported as being a suspect yet nothing was done by the

police. In this respect, highlights the fact that this was not a situation where the police were adamant and determined to prosecute

the Applicant. He also held that the Applicant was never charged nor was he arrested in circumstances where the police had

accessed his details and that this utterly undermined the Applicant’s claim that he was a wanted man.

41. The Respondent states that the Applicant was asked if there had been a court case in relation to the murder, but had made no

enquiries as to what the position was in relation to the case and the Respondent found that it did not make sense that although the

Applicant was never arrested and brought to court in circumstances where he had failed to make any enquiries as to the progress of

the case. That this raises questions as to the genuineness of his claim.

42. The role of the Applicant’s brother, in speaking to the police, was also relevant. The Applicant’s brother went to the police to find

out whether or not he was a suspect in the murder. The police appeared to have indicated that he was a suspect. The respondent

stated:

“If it were the case that the Applicant’s brother did go to the station to find out information, one would expect that the

police might question him as to the whereabouts of his brother. However this does not appear to have been done.”

43. Given the minute scrutiny of the reasons for credibility, I should add that though in this case each of the findings were upheld,

this approach should not be understood as requiring each such finding to be held by the High Court in order to sustain the legality of a

decision. A decision-maker could err in one or more findings as to credibility and the High Court might, notwithstanding such error,

conclude that overall, the decision on credibility is lawful. It is, in that most used, hopefully not overused phrase, “a question of fact

and degree in each case.”

Decision

44. In all of the circumstances, this Court is satisfied that the decision of the second named respondent complies with the

jurisprudence which has arisen from credibility issues in refugee cases. In those circumstances this Court will dismiss the application

for certiorari.

45. As this is a telescoped hearing, I am refusing leave to the Applicant, and refuse the reliefs sought.

Michael Conlon SC and Kilda Mooney BL

Gary O’Halloran BL Instructed by the Chief State

Instructed by Trayers Solicitors Solicitor

For the Applicants For the Respondents