CB v Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland and the Attorney General

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Respondent/Defendant:Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2014] IEHC 496
Nature of Proceedings:Judicial Review
Judgment Date/s:02 Oct 2014
Judge:Barr J.
Category:Refugee Law
Keywords:Asylum, Country of Origin Information, Persecution, Refugee
Country of Origin:Guinea
URL:https://www.courts.ie/acc/alfresco/7adf6b6b-def4-4435-ae14-59c4825c3243/2014_IEHC_496_1.pdf/pdf#view=fitH
Geographic Focus:Ireland
Facts:
The applicant was a Guinean national. He claimed asylum in the State. He said that he had been a prominent student union activist and had fallen foul of the authorities there on account of his activities.  He said that he and his group had taken part in a significant demonstration in 2007, following which he was detained. He said that he had been tortured. He claimed to have escaped some months later, when the prison where he was being held was attacked, resulting in prisoners being able to flee. After this, arrangements were made for him to leave Guinea, and he travelled by air with an agent to the State. Although he claimed to have landed in France, and to have been aware of his location, he failed to apply for asylum there.
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.
The applicant challenged the Tribunal’s decision by way of judicial review.
The court decided to extend time to bring the proceedings, notwithstanding its agreement that a period of the delay ought to have been explained on affidavit from the applicant’s previous solicitors. It was satisfied that the applicant was not personally to blame for any delay.
The Tribunal objected to the applicant’s attempt to challenge the decision on grounds not contained in the statement of grounds, and which were based instead on evidence exhibited in an affidavit sworn close in time to the judicial review hearing, namely, a challenge to the Tribunal’s assessment of a medical report provided by the applicant’s general practitioner, and a complaint that the Tribunal erred in failing to make a specific finding on the applicant’s alleged nationality and ethnicity. In particular, the Tribunal contended that the complaint about the assessment of the medical report could not be construed within the existing grounds of challenge because it was not exhibited to the proceedings when they were instituted in 2010, from which it was capable of being inferred that his legal representatives had not seen it when they were drafting the statement of grounds. The Tribunal argued that the court should not allow the applicant to run the new grounds of challenge, particularly where he had not issued any motion to amend, and where allowing him to do so would prejudice the Tribunal.
The court agreed with the Tribunal. It held that the applicant could not seek to rely on new grounds which were not contained in the statement of grounds without bringing a motion to amend his statement of grounds, which he had not done.
Reasoning:
Without prejudice to that, it noted, first, that the Tribunal’s argument that the medical report was dependent on the applicant’s account of events and that the nature of the findings in it, i.e. that the injuries were “consistent with” his account constituted the lowest level of diagnosis under the Istanbul Protocol and meant that they could have been caused by the trauma described, but were non-specific and there were many other possible causes. The court held that, in the circumstances, the medical report did not add significantly to the applicant’s case. Secondly, as regards the contention that the Tribunal did not make any finding concerning the applicant’s nationality and ethnicity, the court held that that would not have assisted his case as the question of his nationality was not in issue. Moreover, he never claimed that he had a well-founded fear of persecution on the basis of his ethnicity.
The court noted that an important part of the adverse credibility findings in the Commissioner’s s. 13 report was that no country of origin information could be found relating to the escape of prisoners from the prison in which the applicant claimed to have been held, the Surete Urbaine de Conakry. On appeal, the applicant had submitted relevant reports in relation to the attack on various police stations. In particular, he submitted two articles dated 17th June 2008, from a French website, one of which referred to the escape of prisoners from the Surete Urbaine de Conakry. He also submitted an opinion from the Refugee Documentation Centre that the two articles could be deemed a reliable source of information. He contended that the documents were significant pieces of evidence which should have been expressly dealt with by the Tribunal if it wished to doubt his credibility. The Tribunal contended that in circumstances where his claim to have been a student activist was doubted altogether, there was no need for it to have regard to the information in its decision.
The court held that the two reports were very significant and reliable pieces of evidence, which supported the applicant’s core claim in an important respect. It considered that they should have been given individual assessment by the Tribunal which, if it was not minded to give them much weight or credibility, ought to have stated reasons why. There was, however, no appraisal of them at all in its decision.
The court also criticised the adverse credibility finding based on the applicant’s failure to claim asylum in France. It held that there was no obligation on a person seeking asylum to do so in the first safe country he arrived in and that, if such a person was in transit and in the company of a trafficker, it was entirely believable that he would travel to his final destination before claiming asylum. It upheld an additional finding that the applicant was vague and evasive in the giving of his evidence, though it cautioned that, in making such a finding, the Tribunal should not confuse a lack of understanding on the part of the applicant with an attempt by him to be vague or evasive, which was all the more important where evidence was given with the assistance of an interpreter.
Decision:
In the light of the above, the court quashed the Tribunal’s decision.

Facts: 

The applicant was a Guinean national. He claimed asylum in Ireland. He said that he had been a prominent student union activist and had fallen foul of the authorities there on account of his activities.  He said that he and his group had taken part in a significant demonstration in 2007, following which he was detained. He said that he had been tortured. He claimed to have escaped some months later, when the prison where he was being held was attacked, resulting in prisoners being able to flee. After this, arrangements were made for him to leave Guinea, and he travelled by air with an agent to the State. Although he claimed to have landed in France, and to have been aware of his location, he failed to apply for asylum there.

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.

The applicant challenged the Tribunal’s decision by way of judicial review.

The court decided to extend time to bring the proceedings, notwithstanding its agreement that a period of the delay ought to have been explained on affidavit from the applicant’s previous solicitors. It was satisfied that the applicant was not personally to blame for any delay.

The Tribunal objected to the applicant’s attempt to challenge the decision on grounds not contained in the statement of grounds, and which were based instead on evidence exhibited in an affidavit sworn close in time to the judicial review hearing, namely, a challenge to the Tribunal’s assessment of a medical report provided by the applicant’s general practitioner, and a complaint that the Tribunal erred in failing to make a specific finding on the applicant’s alleged nationality and ethnicity. In particular, the Tribunal contended that the complaint about the assessment of the medical report could not be construed within the existing grounds of challenge because it was not exhibited to the proceedings when they were instituted in 2010, from which it was capable of being inferred that his legal representatives had not seen it when they were drafting the statement of grounds. The Tribunal argued that the court should not allow the applicant to run the new grounds of challenge, particularly where he had not issued any motion to amend, and where allowing him to do so would prejudice the Tribunal.

The court agreed with the Tribunal. It held that the applicant could not seek to rely on new grounds which were not contained in the statement of grounds without bringing a motion to amend his statement of grounds, which he had not done.

Reasoning:

Without prejudice to that, it noted, first, that the Tribunal’s argument that the medical report was dependent on the applicant’s account of events and that the nature of the findings in it, i.e. that the injuries were “consistent with” his account constituted the lowest level of diagnosis under the Istanbul Protocol and meant that they could have been caused by the trauma described, but were non-specific and there were many other possible causes. The court held that, in the circumstances, the medical report did not add significantly to the applicant’s case. Secondly, as regards the contention that the Tribunal did not make any finding concerning the applicant’s nationality and ethnicity, the court held that that would not have assisted his case as the question of his nationality was not in issue. Moreover, he never claimed that he had a well-founded fear of persecution on the basis of his ethnicity.

The court noted that an important part of the adverse credibility findings in the Commissioner’s s. 13 report was that no country of origin information could be found relating to the escape of prisoners from the prison in which the applicant claimed to have been held, the Surete Urbaine de Conakry. On appeal, the applicant had submitted relevant reports in relation to the attack on various police stations. In particular, he submitted two articles dated 17th June 2008, from a French website, one of which referred to the escape of prisoners from the Surete Urbaine de Conakry. He also submitted an opinion from the Refugee Documentation Centre that the two articles could be deemed a reliable source of information. He contended that the documents were significant pieces of evidence which should have been expressly dealt with by the Tribunal if it wished to doubt his credibility. The Tribunal contended that in circumstances where his claim to have been a student activist was doubted altogether, there was no need for it to have regard to the information in its decision.

The court held that the two reports were very significant and reliable pieces of evidence, which supported the applicant’s core claim in an important respect. It considered that they should have been given individual assessment by the Tribunal which, if it was not minded to give them much weight or credibility, ought to have stated reasons why. There was, however, no appraisal of them at all in its decision.

The court also criticised the adverse credibility finding based on the applicant’s failure to claim asylum in France. It held that there was no obligation on a person seeking asylum to do so in the first safe country he arrived in and that, if such a person was in transit and in the company of a trafficker, it was entirely believable that he would travel to his final destination before claiming asylum. It upheld an additional finding that the applicant was vague and evasive in the giving of his evidence, though it cautioned that, in making such a finding, the Tribunal should not confuse a lack of understanding on the part of the applicant with an attempt by him to be vague or evasive, which was all the more important where evidence was given with the assistance of an interpreter.

Decision:

In the light of the above, the court quashed the Tribunal’s decision.

Principles:

When deciding whether to accept or reject an applicant’s credibility, a protection decision-maker must have regard to country of origin information which is capable of supporting his core claim and, if it decides not to give such information any or any significant weight, it should give a reasoned basis for that.

An applicant seeking to set aside a decision of a protection decision-maker by way of judicial review cannot seek to rely at the hearing upon new grounds which are not contained in the statement of grounds without bringing a motion to amend that statement.

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