DE v Refugee Appeals Tribunal

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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:[2013] IEHC 304
Nature of Proceedings:Judicial Review
Judgment Date/s:25 Jun 2013
Judge:MacEochaidh J.
Category:Refugee Law
Keywords:Asylum, Asylum (Application for), Asylum application (Examination of an), Geneva Convention & Protocol, Protection, Protection (Application for International), Refugee, Refugee (Convention), Refugee Law
Country of Origin:Ukraine
URL:https://www.courts.ie/acc/alfresco/e64d995a-3bfa-488d-9c7d-c9aafc0690df/2013_IEHC_304_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts

The applicants were a married couple and their child from Ukraine. They claimed to fear persecution as a result of the first applicant’s pursuit of corruption allegations against senior military figures in Ukraine. He claimed that he had made complaints orally and in writing and that he had been assaulted by unknown individuals on account of this. He said that the trigger for his flight from Ukraine was the posting by military authorities of his photograph on a military wanted list in relation to embezzlement and the illegal sale of arms in Kosovo, where he had previously served with the Ukrainian army.

Their claim was found to lack credibility by the Refugee Appeals Tribunal owing to lack of documentation to support the first applicant’s claim to have made complaints about corruption in Ukraine. The applicants challenged this before the High Court.

Reasoning

The High Court held that there had been a failure by the Tribunal to have regard to reg. 5(3) of EC (Eligibility for Protection) Regulations 2006. This provides:-

“Where aspects of the protection applicant’s statements are not supported by documentary or other evidence, those aspects shall not need confirmation when the following conditions are met-

(a) the applicant has made a genuine effort to substantiate his or her application;

(b) all relevant elements at the applicant’s disposal have been submitted and a satisfactory explanation regarding any lack of other relevant elements has been given;

(c) the applicant’s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant’s case;

(d) the applicant has applied for protection at the earliest possible time, (except where an applicant demonstrates good reason for not having done so); and

(e) the general credibility of the applicant has been established.”

The High Court was critical of the Tribunal’s approach, which amounted to discounting credibility based on the absence of documents to support the claim, without having regard to reg. 5(3) of the Regulations of 2006 and whether or not those conditions had been fulfilled.

It also agreed with the applicants that the Tribunal had erred in discounting the credibility of a summons for the arrest of the applicant on the basis that it had been served at his father’s house, given that the evidence he had given in his asylum application was that that was his last registered address in Ukraine. The court also set aside a negative credibility finding made by the Tribunal which was based on the applicant’s wearing of his army uniform at hearing, noting that, contrary to what the Tribunal considered, the fact that his apartment had been sealed did not prevent him from obtaining the uniform, which could have been provided to him by his father.

Decision

The High Court concluded that the Refugee Appeals Tribunal had erred in law on account of its failure to address reg. 5(3) of the Regulations of 2006, and in its assessment of credibility. It therefore quashed the decision of the Tribunal.

Principles:

A protection decision-maker like the Refugee Appeals Tribunal should not discount the credibility of a subjective claim for protection simply because it is not supported by documentation. Before doing so, it must have regard to reg. 5(3) of the Regulations of 2006 and decide whether or not the conditions set out therein are fulfilled. If they are, then the lack of documentation to support the claim will not have the effect of undermining its credibility.

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