HR v Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2011] IEHC 151
Nature of Proceedings:Judicial Review
Judgment Date/s:15 Apr 2011
Judge:Cooke J.
Category:Refugee Law
Keywords:Refugee, Refugee Law
Country of Origin:Belarus
URL:https://www.courts.ie/acc/alfresco/dc81207f-92dd-4a37-8491-4d030e1a38ea/2011_IEHC_151_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

The Applicant was a Belarusian national who had come to Ireland in 2004 and had claimed asylum in May 2006 when her student visa expired. She claimed that before coming to Ireland she had been arrested by the Belarusian authorities while carrying literature supportive of the Belarusian opposition. The Refugee Applications Commissioner recommended that she not be declared a refugee, and this recommendation was affirmed on appeal by the Refugee Appeals Tribunal. The Tribunal found that the Applicant was not credible and based this finding on her demeanour while giving evidence during her appeal hearing and on three other points:

(a) that she provided vague and non-specific evidence with respect to her journey to Ireland;
(b) that she had not mentioned that her brother had been active in the Belarusian opposition or that she had been strip-searched in her interview with the Commissioner; and
(c) that a her demeanour in handing in an envelope which she said had been delivered to her in the post empty and which she said showed that post sent to her from Belarus was being tampered with by the authorities undermined her credibility.

The Applicant obtained the leave of the High Court to challenge the Tribunal’s decision by way of judicial review.

In its judgment on the substantive judicial review application, the High Court (Cooke J.) said that a decision maker must be careful not to misplace reliance upon demeanour and risk construing as deliberate lack of candour a demeanour which may be the result of nervousness, of the stress of the occasion and even of the embarrassment of being an asylum seeker. Cooke J. stated that an apparent hesitation and uncertainty may well be attributable to difficulties of language and comprehension and that before a decision-maker in the asylum process bases a rejection of a claim upon a lack of credibility based mainly on the personal appearance and demeanour of the claimant, the decision-maker ought to be fully confident that the basis of the claim and all relevant facts and circumstances recounted have been fully and correctly understood and that there is no possibility that the decision-maker and claimant have been at cross purposes on any material point.

The Court found that it was unclear why the Tribunal considered it significant that the Applicant’s evidence of her journey to Ireland had been vague and non-specific and why the Tribunal considered her evidence with respect to the envelope an issue of credibility. The Court further found that the Tribunal had erred with respect to his finding that the Applicant had not mentioned her brother’s opposition activity, when details of his involvement were present in the interview record. The Court found that this was material to the conclusion as to credibility was reached. For these reasons, the Court quashed the Tribunal’s decision and remitted her appeal to the Tribunal for consideration by another member.

Principles:

A decision maker must be careful not to misplace reliance upon demeanour and risk construing as deliberate lack of candour a demeanour which may be the result of nervousness, of the stress of the occasion and even of the embarrassment of being an asylum seeker

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