SK and Another v Refugee Appeals Tribunal and Others

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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:[2015] IEHC 176
Nature of Proceedings:Judicial Review
Judgment Date/s:06 Mar 2015
Judge:Faherty J.
Category:Refugee Law
Keywords:Country of Origin Information, Minor, Refugee
Country of Origin:Pakistan
URL:https://www.courts.ie/acc/alfresco/8aeeb521-a4d1-4c46-bc48-5c8439d522e3/2015_IEHC_176_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicants were mother and daughter and nationals of Pakistan. The first applicant applied for asylum in Ireland and claimed fear of persecution in Pakistan on the ground that she had abandoned her Islamic religion. This led to rows with her parents, who forced her into an arranged marriage with a man who was abusive and controlling. She went to Lahore and was assisted by her brother and sister-in-law, who were resident in Ireland, in obtaining a visa to visit them. After her arrival, her brother went to Pakistan who told her that her situation there had not improved. She then claimed asylum.

Having investigated their claim, the Refugee Applications Commissioner made a negative recommendation on it, which included a finding which precluded an oral appeal. The recommendation was affirmed by the Refugee Appeals Tribunal, whose decision the applicants challenged in these proceedings.

Before determining their appeal, the Tribunal wrote to their solicitors pointing out that a passport submitted in support of her visa application disclosed that, contrary to what she had asserted, she had left Pakistan previously, and had done so to travel on a pilgrimage to Saudi Arabia on a date which post-dated her asserted abandonment of Islam.

Ultimately, the Tribunal considered that that information fundamentally undermined the credibility of her claim. It also considered it implausible that she would have been able to obtain a passport and visa for her daughter using her husband’s documents unbeknownst to him. It considered that her actions in taking her daughter with her were tantamount to child abduction and that her husband would likely have complained to the Pakistani police about her. Her delay of almost a month in claiming asylum after arriving in the State was also held to undermine her credibility. It did not consider it a satisfactory explanation that she had been prompted to do so by the information divulged by her brother on his return from Pakistan.

The court quashed the Tribunal’s decision.

Reasoning:
The court rejected a preliminary complaint of the applicants, namely that they were prejudiced by not having an oral appeal and that, in those circumstances, the Tribunal ought not to have made any credibility findings at all or, at least, over and above those made by the Commissioner. The court held there was no merit in that argument.

However, it held that the assessment of credibility had been flawed. With regard to the finding made based on her pilgrimage to Saudi Arabia, it held that the Tribunal ought to have given the first applicant a further opportunity to engage on this issue before making the finding, particularly in circumstances where it had been allied with observations made by the Tribunal Member about his personal experience of entry into Saudi Arabia as a visitor.

The court also held that the finding made as to how the first applicant’s husband would likely have behaved was speculative. In its view, it ought to have been addressed in the Tribunal’s letter to the applicants’ solicitors prior to the determination of the claim.

The court also held that the Tribunal also ought to have discussed in its decision the letter from the first applicant’s brother when deciding whether to make a negative finding on her credibility owing to her delay in claiming asylum, particular as it was an appeal on the papers only.

Finally, the court held that a statement in the decision that regard had been had to country of origin information was not sufficient in the circumstances.

Decision:
The court therefore concluded that the extreme care needed when assessing a “papers only” appeal was lacking, and quashed the Tribunal’s decision.

Principles:

When making a negative assessment of credibility, a decision-making body should be careful to ensure observance of fair procedures and, where necessary, to enable an applicant to comment on any credibility concerns it might have.

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