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

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Respondent/Defendant:Refugee Appeals Tribunal, the Minister for Justice, Equality and Law Reform, the Attorney General and Ireland
Court/s:High Court
Citation/s:[2014] IEHC 374
Nature of Proceedings:Judicial Review
Judgment Date/s:22 Jul 2014
Judge:MacEochaidh J.
Category:Refugee Law
Keywords:Asylum, Asylum application (Examination of an), Persecution, Refugee, Refugee (Convention), Refugee Law, Refugee Status
Country of Origin:Georgia
URL:https://www.courts.ie/acc/alfresco/1cf976e5-c605-4e78-853b-d2da1d231f44/2014_IEHC_374_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicant was a Georgian national. He left Georgia in August, 2008 and arrived in Ireland some days later and claimed asylum. He said that he fled Georgia because of the conflict between Russia, South Ossetia, Abkazhia and Georgia and of his fears of imprisonment as a result of his refusal to be conscripted into the Georgian army, to which he said he had a conscientious objection.

His application was rejected by the Refugee Applications Commissioner and, on appeal, by the Refugee Appeals Tribunal, whose decision the applicant sought to quash.

The Tribunal made three adverse findings in relation to his credibility. Firstly, it held that he had not provided any information in relation to his fear of returning to his country of origin because of evading conscription into the army and had not provided a reasonable explanation for failing to seek the advice of the Refugee Legal Service with regard to doing so. It observed that the applicant was educated to university level in Georgia and concluded that his evidence was neither plausible nor credible.

The Tribunal also made a finding pursuant to s. 11B(f) of the Refugee Act 1996 to the effect that the applicant provided incorrect details as to how he travelled to the State. He had claimed, first, that he travelled here by ship via Turkey, but later admitted that he had flown here via Istanbul and Frankfurt. The Tribunal found that this undermined his credibility. Additionally, it found that the applicant had not provided a reasonable explanation to substantiate his claim that Ireland was the first safe country he arrived in since departing his country of origin.

In seeking to quash the decision, the applicant contended that he had given detailed evidence in relation to his refusal to be conscripted at his s. 11 interview and had submitted four notices requesting him to attend for military service as evidence supportive of his claim. Secondly, he contended that, in finding that he had failed to provide a reasonable explanation for failing to seek the advice of the Refugee Legal Service, the Tribunal had erroneously taken the advice of the woman with whom he was staying at the time, who had organised his travel to the State and told him to hide certain facts and to present himself in a certain way. Thirdly, he submitted that the Tribunal should not have held against him his belated admission of the true manner in which he travelled to the State. Finally, he denied that he had claimed that Ireland was the first safe country in which he arrived following his departure from his country of origin and that s. 11B(b) was not applicable to him. Without prejudice to that, he said that he had provided a clear explanation as to why he did not apply for asylum en route to the State, referable to his dependence on the agent he was travelling with, his inexperience of such travel and his lack of knowledge about claiming asylum.

Reasoning:
The court held that whilst the Tribunal’s reason for rejecting the applicant’s asylum claim was terse, it nonetheless encapsulated the basis upon which his application failed. Whilst the applicant was at pains to describe his objections to serving in the Georgian army, he failed to establish by any objective means what, if any, negative consequences might befall him should he return to Georgia on account of his failure to enlist as required. The court preferred to categorise that as a failure to substantiate the objective matter of forward-looking fear, as opposed to a credibility flaw in his case. However, it held that that was not a sufficient criticism of the approach of the Tribunal to warrant quashing the decision.

The court accepted the applicant’s argument that the differences in the accounts of his travel to Ireland were probably peripheral and the resulting negative credibility finding a little harsh. Additionally, it held that the application to him of s. 11B(b) was incorrect, as a failure to make an asylum claim in a third country attracted negative consequences under that provision only if a claim was made that Ireland was the first safe country encountered following flight from the country of origin, which was not the case here.

Nonetheless, the court held that the three reasons for the claim were severable inter se and that, even if some legal error infected the second and third reasons given, the first reason identifying the failure of the applicant to meet the forward-looking element of the test was sufficiently robust to overcome the applicant’s complaints. It relied in that regard on Talbot v. An Bord Pleanala [2008] IESC 46 and A.A. [Pakistan] v. Refugee Appeals Tribunal (Unreported, High Court, 18th September 2013, Mac Eochaidh J).

Decision:
Accordingly, it refused the applicant leave to seek judicial review.

Principles:

An asylum applicant who is unable to submit any objective information to support his or her claim to fear persecution if returned to his or her country of origin is likely to be unable to make out a well-founded fear of persecution and, hence, an entitlement to a declaration of refugee status.

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