AP (Albania) v Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2014] IEHC 493
Nature of Proceedings:Judicial Review
Judgment Date/s:02 Oct 2014
Judge:Barr J.
Category:Refugee Law
Keywords:Asylum, Country of Origin (Safe), Country of Origin Information, Persecution, Refugee
Country of Origin:Albania
URL:https://www.courts.ie/acc/alfresco/f20f0919-38e7-480c-a4ab-8d90879db384/2014_IEHC_493_1.pdf/pdf#view=fitH
Geographic Focus:Ireland
Facts:
The applicant was an Albanian who claimed asylum in the State. He said that in March, 2007, his father killed a young boy in a road traffic accident in Albania. This gave rise to a blood feud between the boy’s family and the applicant’s family. The applicant feared that the boy’s family would try to kill him in revenge for the death of the boy. He left Albania on a truck and subsequently arrived in Ireland, having travelled, inter alia, via France, where he got out of the truck for two hours and then boarded another truck which was taken by ferry to Ireland.
The Refugee Applications Commissioner made a negative recommendation on his application for asylum. The applicant appealed to the Refugee Appeals Tribunal, which affirmed the recommendation.
In its decision, the Tribunal made an adverse credibility finding because he did not know the name of the boy’s family. It also found that it was not credible that his father had not told him the name of the family because he feared he would exact revenge on them, as it was actually the boy’s family who, in accordance with the code covering blood feuds, would want to exact revenge on his family. It also made an adverse credibility finding on the basis of the applicant’s lack of identity documentation. Further, it doubted that there was a blood feud at all.
The applicant challenged the Tribunal’s decision and complained inter alia that the Tribunal had erred in not granting him an adjournment on the basis that he could not properly communicate through the interpreter provided, as they both spoke slightly different dialects of Albanian. He contended that this resulted in a material error of fact being made by the Tribunal, which misunderstood his evidence. The applicant contended that his evidence, which had not been properly conveyed to the Tribunal by the interpreter, was that his father did not want to tell him the name of the family, lest in the event that he was killed by them, the applicant would then seek to avenge his death.
Reasoning:
The court held that the Tribunal had erred in not granting the adjournment so as to obtain the services of an interpreter who spoke the same dialect of Albanian as the applicant which, it held, was a fundamental element of fair procedures in order to enable him to understand what was going on and to make himself properly understood. The Tribunal had also erred in fact in mistakenly believing that the applicant’s father had not told him the name of the dead boy’s family because he feared he would exact revenge on him.
The applicant also complained that the Tribunal had erred in basing an adverse credibility finding on his lack of identity documentation, notwithstanding his belated production of an untranslated Albanian birth certificate at the appeal hearing. He contended that that was an identity document and that the Tribunal was obliged to have it translated.
The court rejected that complaint, holding that the Tribunal Member was entitled to draw an adverse inference from the fact that the applicant produced an untranslated copy of his birth certificate at the hearing having regard to the fact that he indicated as far back as March, 2008, when he was interviewed by the Commissioner, that he would get his identity documents sent on by post, and only submitted the birth certificate at the hearing in May, 2010.
The applicant took issue with the Tribunal’s finding that his case did not concern a dispute which could be characterised as a blood feud. He contended that the Tribunal acted in breach of fair procedures by failing to draw his attention, and that of his legal advisers, to that opinion so as to enable them to comment on it. The Tribunal, on the other hand, contended that it was not obliged to advise the applicant of its views or thoughts on the evidence and was entitled to make its findings.
The court agreed with the Tribunal, holding that it was entitled to reach its decision on the evidence as to the existence of a blood feud, and was not obliged in the course of the hearing to canvass with the applicant every possible finding which it might make on a thorough consideration of all the evidence produced. The onus was on the applicant to prove that there was a blood feud in existence.
The applicant also contended that the Tribunal had selectively relied, in an unlawful manner, upon country of origin information which suggested that state protection against blood feuds might be available from the police.
The court agreed that there was a conflict in the country information before the Tribunal on that issue, but that it was entitled to prefer one piece of information over another. It therefore dismissed that complaint.
The applicant also contended that an error made by the Tribunal as to the date of birth of his brother undermined a finding made by it on credibility and the question of accessing state protection. The court, however, held that whilst such an error existed, it related to a peripheral issue and would not lead to the quashing of the decision.
The court rejected the applicant’s complaint that the Tribunal had erred in making an adverse credibility finding on the basis of discrepancies in his account of whether or not he had relocated in Albania to avoid his alleged persecutors. It noted that the discrepancy was apparent from the evidence given, and that the Tribunal was entitled to rely on it in assessing credibility. It also rejected a challenge to a finding made by the Tribunal that the applicant had failed to explore the prospect of reconciliation with the dead boy’s family, notwithstanding the applicant’s complaint that the Tribunal had failed to take account of country of origin information reconciliation committees offered little or no protection to people involved in blood feuds. The court also dismissed a complaint that elements of the decision were based on speculation or conjecture, holding that they were based instead on reasonable inferences drawn from the evidence.
Finally, it upheld the adverse credibility finding made by the Tribunal about the applicant’s failure to apply for asylum in France. Citing the decision of Clark J. in A.R. (Georgia) v. Refugee Appeals Tribunal [2010] IEHC 487, it held that the conclusion reached by the Tribunal was one that was open to it on the evidence, as was her conclusion that his failure to apply for asylum in France was not what one would expect of a bona fide refugee fleeing persecution.
Decision:
The court decided to quash the Tribunal’s decision on the basis that it had erred in not granting an adjournment to the applicant so that the services of an interpreter could be obtained who understood and spoke his dialect of Albanian. This was, it held, a causative factor in the misunderstanding which arose as to his ignorance of the name of the family of the dead boy.

Facts:

The applicant was an Albanian who claimed asylum in Ireland. He said that in March, 2007, his father killed a young boy in a road traffic accident in Albania. This gave rise to a blood feud between the boy’s family and the applicant’s family. The applicant feared that the boy’s family would try to kill him in revenge for the death of the boy. He left Albania on a truck and subsequently arrived in Ireland, having travelled, inter alia, via France, where he got out of the truck for two hours and then boarded another truck which was taken by ferry to Ireland.

The Refugee Applications Commissioner made a negative recommendation on his application for asylum. The applicant appealed to the Refugee Appeals Tribunal, which affirmed the recommendation. In its decision, the Tribunal made an adverse credibility finding because he did not know the name of the boy’s family. It also found that it was not credible that his father had not told him the name of the family because he feared he would exact revenge on them, as it was actually the boy’s family who, in accordance with the code covering blood feuds, would want to exact revenge on his family. It also made an adverse credibility finding on the basis of the applicant’s lack of identity documentation. Further, it doubted that there was a blood feud at all.

The applicant challenged the Tribunal’s decision and complained inter alia that the Tribunal had erred in not granting him an adjournment on the basis that he could not properly communicate through the interpreter provided, as they both spoke slightly different dialects of Albanian. He contended that this resulted in a material error of fact being made by the Tribunal, which misunderstood his evidence. The applicant contended that his evidence, which had not been properly conveyed to the Tribunal by the interpreter, was that his father did not want to tell him the name of the family, lest in the event that he was killed by them, the applicant would then seek to avenge his death.

Reasoning:

The court held that the Tribunal had erred in not granting the adjournment so as to obtain the services of an interpreter who spoke the same dialect of Albanian as the applicant which, it held, was a fundamental element of fair procedures in order to enable him to understand what was going on and to make himself properly understood. The Tribunal had also erred in fact in mistakenly believing that the applicant’s father had not told him the name of the dead boy’s family because he feared he would exact revenge on him.

The applicant also complained that the Tribunal had erred in basing an adverse credibility finding on his lack of identity documentation, notwithstanding his belated production of an untranslated Albanian birth certificate at the appeal hearing. He contended that that was an identity document and that the Tribunal was obliged to have it translated.

The court rejected that complaint, holding that the Tribunal Member was entitled to draw an adverse inference from the fact that the applicant produced an untranslated copy of his birth certificate at the hearing having regard to the fact that he indicated as far back as March, 2008, when he was interviewed by the Commissioner, that he would get his identity documents sent on by post, and only submitted the birth certificate at the hearing in May, 2010.

The applicant took issue with the Tribunal’s finding that his case did not concern a dispute which could be characterised as a blood feud. He contended that the Tribunal acted in breach of fair procedures by failing to draw his attention, and that of his legal advisers, to that opinion so as to enable them to comment on it. The Tribunal, on the other hand, contended that it was not obliged to advise the applicant of its views or thoughts on the evidence and was entitled to make its findings.

The court agreed with the Tribunal, holding that it was entitled to reach its decision on the evidence as to the existence of a blood feud, and was not obliged in the course of the hearing to canvass with the applicant every possible finding which it might make on a thorough consideration of all the evidence produced. The onus was on the applicant to prove that there was a blood feud in existence.

The applicant also contended that the Tribunal had selectively relied, in an unlawful manner, upon country of origin information which suggested that state protection against blood feuds might be available from the police.

The court agreed that there was a conflict in the country information before the Tribunal on that issue, but that it was entitled to prefer one piece of information over another. It therefore dismissed that complaint. The applicant also contended that an error made by the Tribunal as to the date of birth of his brother undermined a finding made by it on credibility and the question of accessing state protection. The court, however, held that whilst such an error existed, it related to a peripheral issue and would not lead to the quashing of the decision.

The court rejected the applicant’s complaint that the Tribunal had erred in making an adverse credibility finding on the basis of discrepancies in his account of whether or not he had relocated in Albania to avoid his alleged persecutors. It noted that the discrepancy was apparent from the evidence given, and that the Tribunal was entitled to rely on it in assessing credibility. It also rejected a challenge to a finding made by the Tribunal that the applicant had failed to explore the prospect of reconciliation with the dead boy’s family, notwithstanding the applicant’s complaint that the Tribunal had failed to take account of country of origin information reconciliation committees offered little or no protection to people involved in blood feuds. The court also dismissed a complaint that elements of the decision were based on speculation or conjecture, holding that they were based instead on reasonable inferences drawn from the evidence.

Finally, it upheld the adverse credibility finding made by the Tribunal about the applicant’s failure to apply for asylum in France. Citing the decision of Clark J. in A.R. (Georgia) v. Refugee Appeals Tribunal [2010] IEHC 487, it held that the conclusion reached by the Tribunal was one that was open to it on the evidence, as was her conclusion that his failure to apply for asylum in France was not what one would expect of a bona fide refugee fleeing persecution.

Decision:

The court decided to quash the Tribunal’s decision on the basis that it had erred in not granting an adjournment to the applicant so that the services of an interpreter could be obtained who understood and spoke his dialect of Albanian. This was, it held, a causative factor in the misunderstanding which arose as to his ignorance of the name of the family of the dead boy.

Principles:

A fundamental element of fair procedures is that a protection applicant who does not understand English be provided with a competent interpreter at a hearing in order to enable him to follow proceedings and to make himself properly understood. Where this is not done, a protection decision is likely to be set aside as having been made in breach of fair procedures, particularly where an interpreter’s inability to convey the applicant’s evidence properly has led to a material mistake of fact by the protection decision-maker. In such cases, a protection decision-maker should consider granting an adjournment to enable the services of a suitable interpreter to be obtained.

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