High Court quashes Refugee Appeals Tribunal decision for procedural unfairness and failure to address documentary evidence. Applicant granted remittal for de novo hearing.

Neutral Citation: [2015] IEHC 78

THE HIGH COURT

JUDICIAL REVIEW

[2010 No. 1590 J.R.]

BETWEEN

F.U. (AFGHANISTAN)

APPLICANT

AND

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

IRELAND

RESPONDENTS

JUDGMENT of Mr. Justice Eagar delivered on the 11th day of February 2015

1. This is a telescoped application for an order of certiorari quashing the decision of the second named Respondent to affirm the

decision of the Refugee Applications Commissioner that the Applicant not be declared to be a refugee and seeking on order remitting

the appeal of the Applicant for determination de novo by a separate member of the Refugee Appeals Tribunal.

2. The Applicant is a citizen of Afghanistan and was born on the 1st January 1989. He arrived in Ireland on the 23rd March 2010 and

completed the ASY1 form on the 26th March 2010 and the application for refugee status questionnaire on the 9th April 2010. He

attended for interview with the Refugee Applications Commissioner on the 28th April 2010 and the 1st June 2010. By letter dated the

5th August 2010 the Refugee Applications Commissioner recommended that he be refused status.

3. A notice of appeal was submitted by letter dated the 21st August 2010 to the Refugee Appeals Tribunal and his oral hearing with

the Tribunal was held on the 30th September 2010. By letter dated the 8th December 2010 and received by him about the 11th

December 2010 he was informed that the Tribunal dismissed his appeal and these proceedings were commenced on the 22nd

December 2010.

The Applicant’s claim

4. Prior to dealing with the applicant’s claim I wish to deal with the interview with the Refugee Applications Commissioner’s authorised

officer on the 28th April 2010. A named interpreter was on the interview form but the interpreter was changed. At the end of the

interview the authorised officer asked “have you fully understood all the questions that I have asked you?” and the Applicant

answered “yes” and signed the form. By letter dated the 26th May 2010 from the Refugee Legal Service of the Legal Aid Board to the

office of the Refugee Applications Commissioner the Refugee Legal Service indicated that the Applicant had instructed that during the

course of the interview the interpreter was withdrawn and a different individual was provided. The letter continued “this second

interpreter was not able to translate accurately our client’s answers and consequently there will be errors in the transcripts which will

emanate from that process”. The Applicant instructed the solicitors that they request for the reconvened interview scheduled for the

1st June 2010 and the interpreter complained of not be assigned to attend. It is unclear from the Section 11 interview which took

place on the 7th June whom the interpreter was but it appears to have been a different interpreter to the interpreter who interpreted

at the first interview. The nature of both interviews was robust by the authorised officer. In the context of robust interviews the

Refugee Applications Commissioner should understand the enduring importance and value of human rights and striving to do justice in

an independent, impartial and just manner. It appears that at the end of the second interview the authorised officer appeared to

challenge the Applicant about signing the form indicating that he had no problems with the interpreter and asked the Applicant to

comment. This lead to what only be described as a hostile series of questions from the authorised officer and seemed to set the tone

for the end of that interview and again at the very end of the interview the authorised officer challenged the Applicant in relation to

the interpreter at the previous interview. The Applicant had suggested that the authorised officer appeared angry and the end of the

second interview was in my view unfortunate and unhelpful. The report of the Commissioner is silent on the issues which I have

mentioned in relation to the second interview.

5. The first named Respondent commented in her introduction to the written decision on the Applicant’s claim in relation to the

Applicant’s confirmation that he was happy with the conduct of the first interview, refers to the correspondence from the Refugee

Legal Advice Service and also refers to the Applicant signing every page of the interview at the first interview and comments that “it

is difficult to understand why he would later claim that he had difficulties with the interpreter”.

6. I believe and accept that the first named Respondent has a duty to hear the application de novo and it appears to me that in

identifying this issue at the beginning of her decision and in commenting on the unhelpfulness of the Applicant requires a very close

analysis of her decision. It appears to me inevitable that in these cases there is a danger of “canteen culture” and as the Applicant is

appearing before the first named Respondent for the first time but the authorised officers and the presenting officers appear regularly

before the Refugee Appeals Tribunal and particularly the first named Respondent who has responsibility for quite a considerable

number of appeals, this requires considerable attention by a judge in reviewing the fairness of the decision.

7. The Applicant said that his father was a leader with the Taliban and that he had been previously been fighting with the Hezb-e-

Islami. He said that when the Americans invaded Afghanistan, his father and the Taliban hid in the mountains and his family had no

contact with his father for three years. The Applicant explained that his father was a leader of the Taliban battalion in Asmar in Konar

and that his battalion less than and hour by car from his village. He said that this battalion consisted of 45 to 50 people. The

Applicant said that the only education he received was from an Imam at the local mosque. He could not read or write and the only

thing he could read was the Koran. The Applicant said his father would return home by night and disappear before the sun came up.

He said that the family survived because they had property and his uncle brought them everything from the farm. The Applicant said

the girls in his family were not allowed to go to school and he did not go to school as his father was against school and other

governmental institutions and he criticised western values. The Applicant said that two of his father’s friends came to his home and

one left early the next morning, the second man left around noon time and took the Applicant’s brother (Assim) with him. When asked

when this happened the Applicant said he did not know exactly but it was about 2 ½ years ago. He said that some time later there

was an attack on the family home and he stated that his brother was killed and another brother was taken. When asked what month

the attack on his home occurred the Applicant said he did not remember. When asked what year the attack occurred the Applicant

replied he did not remember. The Applicant said that he believed that his brother had been taken by the Taliban 2 ½ years prior to his

coming to Ireland. He said that he only knew months in the Afghan calendar. He could confirm that he did not know who carried out

the attack on the house and when he reported the incident to his father he was told that it could be Hezb-e-Islami. According to the

Applicant there was no autopsy on his brother’s body for religious reasons.

8. Some time later a friend of the Applicant’s father visited the house and the Applicant’s mother told the Applicant to go with this

man and tell his father what had happened and to find out about their missing brother. The Applicant said they drove to a mountain.

He travelled by foot for 20 minutes and then went through a cave/tunnel. The Applicant said the tunnel was huge on the inside and

opened out. The Applicant said the cave was lit with gaslights and there was a separate place for cooking and storing weapons. He

said there was a conference room on one side for leaders to get together and make decisions. There was also a training room in the

cave. He said the Taliban were dressed as locals so as not to be recognised as the Taliban. The Applicant explained that a day in the

camp began with prayers, they would then eat. After cooking there would be a training session for Jihad. Jihad would be preached for

and after that the rules were read out and given to him. When asked if there was a military handbook the Applicant said it was like a

constitution for the Taliban and it had rules for different situations. When asked if it was fair to describe this as a military handbook or

a constitution and a way of life the Applicant said it was a handbook for how to live life and how to deal with others. The Applicant

said that the only place that it mentioned weapons was in relation to fighting with foreign forces and how to distribute weapons. The

Applicant confirmed that this book he was referring to was not a military training book and when asked for the name of this

constitution the Applicant said it was called “Layeha”. He said that the first chapter is about Jihad and why Jihad is important. He said

he started leaning the “Layeha” when he heard about the “Layeha” when he was about 21 years of age.

9. While in the camp the Applicant said that he cooked and helped the injured. He said that if he got free time he would recite the

Koran and clean weapons. When asked if he received military training the Applicant said that if the Taliban wanted to send you for

proper military training they would send you away for one year. He said he was sent outside the tunnel and showed how to hold a

gun. The Applicant said that he did not want to stay at the camp as the Taliban interpret Islam in their own way and the Koran did

not say violence had to be spread on Earth. The Applicant confirmed he was in the camp against his will, that he was not free to

leave and he had to get permission to go out. The Applicant stated that he assisted in the burial of about 10 people. He said that he

was allowed to leave the camp as he and his brothers asked one of the leaders if they could return home and tell his mother about his

father’s death. The Applicant said that initially the Taliban did not agree to them going but his father’s friend arranged that they could

go. The Applicant states that they were accompanied to a certain point and told to return to this point the next day. The Applicant

said that when they returned home, they found that their home was locked and they found their mother at their uncle’s home. The

Applicant’s uncle told the Applicant and his brother and that the police sent warrants asking them to go to the police station. The

Applicant said his family had been targeted as his father was a member of the Taliban for a long time and they found out everyone in

the family was aligned to the Taliban. When asked if it was unusual that he was allowed out from the Taliban on compassionate leave

the Applicant said that his father had been honest with the Taliban and the Taliban trusted him. The Applicant, his brother and his

sister and an agent then left the village by car. When they were stopped by the police they said they were taking the Applicant’s

sister to Peshawar for treatment.

10. The Applicant said that they stayed at a small house, his picture was taken, he was told of the details on the passport and he

states he was trained to reply to questions. They spent 10 days in Peshawar before travelling to an airport 2 ½ hours away. The

Applicant said that he did not know the airport they travelled to and he said they took three flights. The Applicant said that the first

airport was an Arab country, in the next airport the people dressed like people in Ireland and he then took the last flight to Ireland.

The Applicant states that during the travel the agent helped him answer two questions. The Applicant confirmed that he spoke

pashto and the only word he could speak in English was “hello”. After arriving in Ireland, the agent took all the Applicant’s travel

documents and the agent rang the Applicant’s uncle. The Applicant then said that they then spent a day or two at a place. The

agent then wrote something on a piece of paper and he put them in a taxi and the Applicant and his siblings then applied for asylum.

In reply to the presenting officer the Applicant confirmed that neither he nor his brother went to school and that they only attended

the Madrassa. The family had a lot of money but his father was against a modern education. He was asked if the camp had ever been

attacked by the enemy and the Applicant replied “roughly, maybe once”. When asked if he had ever had to fire a gun in anger the

Applicant replied “no” and if there was an attack on the camp they would move out of the camp and go and defend themselves. The

Applicant said his father had been about 60 years plus when he died. When asked why a 60 year old man would be sent on a combat

mission while his son in early 20’s sat in camp the Applicant explained that his father was a commander, he was well trained and the

“Layeha” rulebook states that only those who have courage can be sent.

11. Extraordinarily the presenting officer in questioning the Applicant said that he was merely 60 and he was not half the man he had

been when he had been in his 30’s. The Applicant replied that the presenting officer would have had an easy life in Ireland and people

such as his father work hard their whole life, they exercise and train and there is huge difference between their ways of life. It was

put to the Applicant that it was not credible that the son of a land owning commander would have the duties of cooking and digging

graves. The Applicant explained that in the Taliban a person receives the same training despite their status and everyone is equal. It

was put to the Applicant that the police report on file is dated over three months prior to the incident. The Applicant said that this

was an administrative mistake and the incident could be verified from the police station.

12. I note that at this stage unusually the presenting officer seemed to take the position that he had to enter into the issue of the

interpreter which I have referred to further. Again this appears to be an unhelpful intervention by the presenting officer. He said that

when the interviewer was over the Applicant said that the interpreter asked him to follow him and the interpreter threatened the

Applicant and told him he was lying. He was asked by the presenting officer why would have indicated that he was happy with the

interpreter, the Applicant explained that he understood that he had been asked if he “belonged to this” and he had replied “yes”.

When asked if he had told his solicitor about these threats the Applicant said he had not.

13. The Applicant was asked by the first named Respondent what month in any calendar his father died in. The Applicant said he did

not remember but it was roughly the end of the summer. When asked how his other family members were able to remain in

Afghanistan if it was believed the family were aligned with the Taliban, the Applicant said that in Afghanistan everyone lived their own

way and his uncle made his own decisions. He said that his mother was able to remain in Afghanistan but she was in danger and did

not want to leave due to her son that was missing. The Applicant again answered to the Tribunal Member to confirm that prior to

joining the Taliban neither he nor his siblings had received an arrest warrant. He confirmed that the arrest warrants on file related to

his siblings and himself. When asked why the government would issue him with an ID when he was wanted by the authorities, the

Applicant replied “it did not really matter for person and arrest warrants as an ID was his right”. The Applicant also confirmed that his

uncle is now telling him that the police are looking for them and asking for them. He said that the police believed that his mother

knows where he and his siblings are.

The analysis by the first named Respondent

14. The first named Respondent stated that the US Army had a camp in Asmar and regularly patrolled with the Afghan national army.

According to the information the Americans use apache attack helicopters and artillery support such as a batter of howitzer artillery

pieces when engaging with the insurgents in the area. Because the Applicant stated in the interview when the Taliban were attacked

in this area the Afghans and the Americans used machine guns and hand grenades. With the machinery available to the Americans

and Afghans in the area it is not credible that the Taliban camp would be attacked using only machine gun fire and hand grenades and

the Applicant’s description of the attacks on the camp were implausible.

15. The first named Respondent said that at the interview the Applicant stated his camp was attacked a few times stated. During the

appeal hearing the Applicant indicated to the presenting officer that the camp was attacked on one occasion and confirmed this to

the Tribunal Member when re-questioned on this point. When the discrepancy in his testimony was put to the Applicant, the Applicant

then stated that there was no such attack on his camp. If they went to get supplies they would be attacked. The Applicant then

confirmed that the camp had never been attacked. The Applicant’s contradictory testimony undermines the credibility of his account.

The first named Respondent held that the contradictory testimony undermines the credibility of his account.

16. The first named Respondent then dealt with the issue of the Taliban’s military rule and stated that the Taliban have a military rule

called “Laheya” which every mujahideen must abide by. At the appeal hearing the Applicant described the book as a constitution, a

hand book on how to live life and it was not a military training book. His assertion during the interview that the Taliban do not issue

any sort of book runs contrary to Country of Origin Information and calls into question the Applicant’s claim to have a father who is a

father of the Taliban and who trained and lived with the Taliban.

17. The first named Respondent said it was difficult to understand why the Applicant could not give a more detailed account of

extremely significant events in his life which are central to his claim and his vagueness in this regard undermines the credibility of his

account.

18. The first named Respondent also dealt with the issue of travel to Ireland which in my view where agents are involved is a

peripheral point. Where agents are involved it is absolutely credible that a person who would not seek to make an asylum claim in the

first country that they land in where the agent is encouraging them to continue with the travelling. This may appear to an educated

European to be somewhat difficult to understand but an uneducated person who does not speak a European language and has little

education in reading and writing it is totally understandable.

19. In “The Law of Refugee Status” by James Hathaway and Michelle Foster (Second Edition, 2014) the authors deal with “Credibility

implications of mode of departure, travel or arrival”:-

“Perhaps because assessing the credibility of testimonial evidence is so inherently difficult, it is sometimes suggested

that credibility can be determined by a reference to the circumstances of an Applicant’s departure from her home

country, the route taken to arrive in the asylum state and the mode of arrival to seek protection. While evidence on

each of these issues may have some relevance, mush jurisprudence suggests an exaggerated reliance on the evidence

of this kind to assess credibility.”(My emphasis)

20. The authors further note:-

“Evidence of this kind is not, however, determinative but should be rather weighed together with other facts to discern

the true extent of the risk faced by the refugee complainant.”

21. The first named Respondent then said having considered the Applicant’s claim in the round the credibility issues that arose

undermined the Applicant’s claim. She quotes Country of Origin Information on file which stated that low profile or ordinary Taliban

members generally do not face problems when integrating to the local community. This together with her stated belief that she did

not believe that the Applicant’s father could have been a commander in the Taliban is not really helpful Country of Origin Information

because on the Applicant’s own account his father was a commander in the Taliban. She then continues “if it was accepted that the

Applicant had been involved with the Taliban (which it is not) it appears that from his role of a lower ranking position in the Taliban

the fact that he had been forced to join the Taliban then he could not face problems were he to return to Afghanistan”.

22. She finally held that the Applicant’s fear of the Afghan authorities was not well founded. She said that she had considered all

relevant documentation and statements in connection with the appeal including the notice of appeal, all documents and photographs

listed at p. 1 of the Section 13 report together with the submissions and Country of Origin Information and took these matters into

account when making her decision.

Submissions on behalf of the Applicant

23. Counsel on behalf of the Applicant submitted that the first named Respondent had breached “the 9th and 10th Commandments” of

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

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

of a claim which is prima facie relevant to a fact where even an event pertinent to a material aspect of the credibility

issue, the reasons for that rejection should be stated”.

24. The documentary evidence referred to relates to the commands by the Ministry of Internal Affairs of the Islamic Republic of

Afghanistan for the Applicant and his brothers to present themselves to the security headquarters for the purpose of “reserving

his/her issues/matter”. This first letter appears to have been sent on the 12th July 2007 in a series of letters culminating on the 23rd

June 2009 the first named Respondent had failed to adjudicate upon the authenticity or otherwise of this document save as to

indicate that she was taking into account the documentary evidence in her forming a decision. The only document that the first

named Respondent dealt with was the issue in relation to the death of Ashfaqulla which suggested that the document had been

prepared and dated on a date prior to the issue. The first named Respondent’s report was also silent on the letters allegedly from the

Taliban Islamic Movement of Afghanistan dated the 2nd February 2010 and the 12th March 2010.

25. Counsel on behalf of the Applicant further submitted that in the notice of appeal submitted to the Tribunal on behalf of the

Applicant that the interviewer erred in fact and in law (the RAC) by completely ignoring what the Applicant had enclosed including

letters from the Taliban with threats of death and letters from state security. Country of Origin Reports submitted to the Tribunal

showed that both the Taliban and the state authorities continued in mid 2010 to engage in killing or arbitrary detention and torture.

26. Counsel for the Applicant pointed to the nature of the cross examination of the Applicant and in particular the presenting officer

indicating that he was not half the man he was at 22 to 23 to either work or fight.

27. Counsel for the Applicant further submitted that the Tribunal had failed to have any apparent regard to the country conditions,

the personal attributes of the Applicant or his subjection to persecution in the past together with the documents from the Ministry of

Internal Affairs and the Taliban. He further submitted that in determining the claim on the basis of credibility findings the first named

Respondent had failed to consider the relevance of the documents to the core claim. Further the finding in respect of the Applicant’s

perceived contradictory testimony in respect of gun fire engagements with the US and Afghan armies was made without stating any

reason for the rejection of the Applicant’s explanation that the engagements did not involve any direct attack on the camp. Further

the findings in respect of the “Laheya” was made without any regard to the actual knowledge displayed by the Applicant or his

description as a constitution, The final submission he made was in relation to the first named Respondent’s finding that the height of

the Applicant’s claim was that he was a low level member of the Taliban and this was made without regard to the prominent position

held by his father as independently (and unchallenged) indicated by the Taliban documents.

28. Counsel on behalf of the Respondents referred to the report of the Refugee Applications Commissioner and the recommendation

that the Applicant should be refused a declaration on the basis that country information indicated that low level or ordinary Taliban

members generally did not face problems when integrating into the local community. Counsel further indicated that the reports

indicated that the US Army had a camp in Asmar and regularly patrolled with the Afghan Army and they also used apache attack

helicopters and artillery when engaging insurgents in the area. He further submitted that the Applicant had claimed that the Taliban

did not have any form of rulebook while country information indicated that the Taliban had a guidebook called “Laheya” and in the

absence of direct or inferential evidence to the contrary there was no legitimate ground to suppose that this statement was

incorrect.

29. Counsel on behalf of the Respondent said that the decision makers could not realistically establish the authenticity or otherwise of

the documents that were submitted. He further said that the first named Respondent did not reject the authenticity of the reported

identity document and further submitted that the Applicant had given starkly contradictory evidence at the hearing in relation to the

time he claimed he had spent with the Taliban in relation to his attaining of an ID from the authorities. Counsel further referred that

the first named Respondent did not expressly refer to the alleged “Taliban documents”. It was submitted on behalf of the Respondent

that the documents were of self evidentiary dubious validity although no such finding was made by the first named Respondent but

quoted Banzusi v. The Refugee Appeals Tribunal [2007] IEHC 2, a judgment of Feeney J. I note that there was a pleading point by

counsel for the Respondent in relation to grounds not raised in the statement grounding the application for judicial review and I note

that the Respondent claims no prejudice based on the alleged pleading deficiency. Counsel for the Respondent indicated that the

Applicants displayed some familiarity with a kalashnikov rifle did not assist in proving he was a member or supporter of the Taliban.

Decision of the court

30. In my judgment of S.F v. The Refugee Appeals Tribunal and the Minister for Justice Equality and Law Reform, delivered by me on

the 4th February 2015 I outlined the statutory framework of the decision making role of the Refugee Appeals Tribunal and also the

function of the High Court in judicial review. I adopted the ten principles outlined by Cooke J. in I.R. v. The Minister for Justice

Equality and Law Reform and the Refugee Appeals Tribunal [2009] IEHC 353. In applying these principles to the case in question I find

as follows:

1) The Applicant was clearly contradictory in his answers to the Refugee Applications Commissioner and coupled with the

evidence given to the Tribunal.

2) The issues relating to the interpreter which initially was raised at the Refugee Applications Tribunal and subsequently

became quite a considerable part of the introduction to the first named Respondent’s report was unhelpful and raised in

my view considerable issues in relation to the credibility findings.

3) Having regard to the documents which were submitted it is not sufficient in my view for the first named Respondent to

adjudicate until she had considered all the documents and stated the reasons as to why she did not accept these

documents as assisting credibility. Cooke J. states that:-

“Where an adverse finding involves discounting or rejecting documentary evidence or information relied upon in

support of the 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.”

They are not so stated in this case.

4) I find the isses as outlined above by me in relation to the method of travel to be peripheral issues which are not

determinative of issues of credibility.

5) Whilst it is not my role to seek to insert my own views as to the findings of the issues of credibility, the finding that

the first named Respondent seemed to accept that the only way in which the American and Afghan Army fought the

Taliban was from helicopters and at a distance by way of artillary support so as to avoid putting troops at risk. One only

has to see the number of American and British troops who have been killed on patrols in Taliban dominated regions to see

that this Country of Origin Information is not the complete description.

6) I find the interview process and the hearing by the first named Respondent of the appeal in this matter were

unsatisfactory for the reasons stated. Further I find that the first named Respondent did not adequately deal with the

documentation which had been submitted by the Applicant and that the Country of Origin Information was picked to suit

the decision which was reached by the first named Respondent and in those circumstances I grant an order of certiorari

quashing the decision of the first named Respondent dated the 29th November 2010 and remit the appeal of the Applicant

for a de novo consideration by a separate member of the Tribunal.