Ireland - A.D V. Refugee Appeals Tribunal (Constituted of Paul Christopher, Tribunal Member) and the Minister for Justice, Equality and Law Reform. [2010 No 1231 J.R] Judgment by Faherty J.

Facts:

The applicant was an Iranian Kurd and mechanic. His claim was primarily based on nationality and imputed political opinion in that the Iranian Revolutionary Guards sought him for taking in a car to repair which had been involved in anti-government operations. It was alleged that the garage owner denied knowledge of the car and said it was the applicant who took it in for repair. The applicant fled to a nearby village and his uncle arranged for him to flee Iran with the help of smugglers through Turkey. He later arrived in Ireland on 13 October 2009.

The Refugee Appeals Commissioner (ORAC) recommended the applicant not be declared a refugee and this was affirmed by the Refugee Appeals Tribunal (RAT) on the grounds of a lack of credibility, including factual circumstances which appeared implausible and discrepancies within documentation submitted by the applicant.  The decision was challenged by way of judicial review by the applicant on the grounds that the Tribunal had failed to assess the credibility of the applicant’s claim in the context of the country of origin information (COI) and other documentary evidence which was submitted by the applicant, including an identity document and an Iranian court document.

Decision & reasoning:

Considering first the challenge to the Tribunal’s finding on credibility, the Court found that that the probative value of the COI submitted by the applicant was not addressed correctly by the Tribunal in their decision. It noted that the probative value is a matter entirely for the decision maker but stated “That notwithstanding, once a decision maker has embarked upon a consideration of country of origin information, it is incumbent on him or her to give some indication, in the decision, of the weight attached to the information proffered, or at the very least his or her view of the applicant’s claim of persecution in the context of that information” (Para. 16). The applicant submitted several COI reports on Iran which were not taken into account by the Tribunal member or in discounting it, he failed to give reasons as to why that was the case. It was also unclear from the Tribunal decision whether such information was averted to at all by the Tribunal Member and Faherty J. noted that “Even if it was adverted to and discounted, the reason for the rejection should have been stated. To my mind, the unsatisfactory manner in which country of origin information was dealt with is not cured simply because there is a catch all statement in the Decision that the Tribunal Member has considered country of origin reports and information” (Para.19). He went on to state that “Thus, once acknowledged (as it was here) that the Tribunal Member had considered country of origin information and reports, it was incumbent on him to give some account of the nature of that consideration and the weight attached to the information and, if the applicant’s claim in the context of that country of origin information was to be rejected, the reasons for the rejection should be clearly set out…in my view , it is not for a protection seeker or a court in reviewing a decision made in respect of a protection seeker, to second guess what was in the mind of a decision maker” (Para 21). The Court relied upon the reasoning of other Court cases regarding credibility: I.R. v Minister for Justice, Equality and Law Reform & Anor [2009] IEHC 353; F.T. v. Refugee Appeals Tribunal & Ors [2013] IEHC 167; T.M.A.A. v Refugee Appeals Tribunal & Ors [2009] IEHC 23.

Accepting the applicant’s argument and making reference to the country of origin information which states that these Iranian Court rulings often take place behind closed doors, the Court rejected the Tribunal’s finding that it was inherently implausible that the applicant’s uncle or sister would not know about the Iranian court ruling. Furthermore, Faherty J. noted the unsatisfactory manner in which the country of origin information was dealt with.

The Court also assessed the failings of the Tribunal in the context of Reg. 5 of the European Communities (Eligibility for Protection) Regulations 2006 and in particular Reg. 5(1)(a),concerning country of origin information which must be considered when a decision maker makes a protection decision. Thus, once it was accepted that the Tribunal Member had considered the country of origin information then it was incumbent on him to give some account of the nature and weight of the consideration and set out clearly the reasons for rejection, which was not done in this case.

The Court further considered the impact of the Iranian court document which had been furnished in aid of the applicant’s appeal but which was not before the Refugee Appeals Commissioner at the initial Section 13 interview. The Tribunal referred to the document purporting to be a Ruling of Court as conflicting in several respects with the evidence provided by the applicant in support of his asylum claim. Faherty J. focused on whether the Tribunal paid ‘due regard’ to the Iranian Court document and found that there was sufficient ambiguity on the face of the document (two conflicting dates) as to make it unsafe for the Tribunal member to rely on the contradiction in dates as a factor to undermine the applicant’s credibility. The Court noted that the Tribunal member handed back the original document to the applicant and found that it was incumbent on the Tribunal Member to retain the original document to enquire as to its authenticity (Para 39). The Court also noted that s. 16(6) of the Refugee Act empowers the Tribunal to request ORAC to verify the authenticity of documents. 

Moreover, Faherty J. found that in the present case, the bulk of the adverse credibility findings related to conclusions drawn from analysis of the court document and the Tribunal Members own perspective into the how the Iranian Court’s investigative and court procedures operated. Those conclusions were drawn without any apparent consideration of material potentially corroborative of the applicant’s story and without any effort to verify the authenticity of the court document. For these reasons the Court found that the process by which the Tribunal Member reached his conclusions on credibility wanting.

Obiter: There was also a reference to ‘war crimes’ during the oral submissions of the Presenting Officer which seemed to be incorrect as no further reference was made to it. Faherty J stated in that regard that “Protection seekers who seek recourse to the asylum process should at the very least have the expectation that what will be addressed in the document communicating the decision on their claim will be the arguments they advanced in aid of the appeal and any arguments advanced by the Presenting Officer, as relates to the particular claim for refugee status. It does not serve the system which is in place for the determination of applications by protection-seekers well that the instrument through which the applicant receives the decision on his appeal contained extraneous material of the nature described above” (Para 52). 

Outcome:

Decision of the Refugee Appeals Tribunal is quashed by the High Court and the case is remitted back to a different member of the Refugee Appeals Tribunal. 

Observations/comments:

Interestingly, Counsel for the applicant sought to rely on a decision of the European Court of Human Rights in the case of M.A v. Switzerland [2014] as persuasive authority to the court in the context of the review of how the RAT dealt with the Iranian court document. Counsel stressed that she was not attempting to challenge the decision of the Tribunal under any European Convention on Human Rights and Fundamental Freedoms (the Convention) grounds. M.A concerned a failed Iranian asylum seeker in Switzerland. The ruling was argued as persuasive authority as the ECtHR addressed the issue of inconsistencies in documents provided by an applicant. The ECtHR held that documents submitted on behalf of the applicant could not be disregarded when inconsistencies arose in the applicant’s account which ran contrary to documentation provided. Counsel further submitted that the approach adopted by the ECHR would be regarded as the correct test before the CJEU.

Counsel for the applicant submitted that the approach of the ECtHR in M.A should be applied in the present case. The judge having regard to the findings already made concerning the failings of the Tribunal, when viewed against the requirements of the 2006 Regulations and the established jurisprudence felt it was unnecessary to consider the arguments raised by the applicant in regards to the decision in M.A.

Other sources:

1. Country of origin information taken from the Danish Fact Finding

Mission to Iran 24th August – 2nd September 2008, Section 2 “Kurds”.

This document was attached as appendix A to the section 13 report of the Refugee Appeals Commissioner (PG. 91 and PGS. 9699 of the booklet).

2. An Amnesty International Report dated June 2010 entitled “From

Protest to Prison, Iran one year after the election”, furnished to the Tribunal on behalf of the applicant.

3. A UNHCR document published by Human Rights Watch and entitled

“Iran: Stop imminent execution of Kurdish dissident”, dated 29th June 2010(furnished to the Tribunal by the applicant).

4. An International Federation of Human Rights (FIDH) position paper to the United Nations General Assembly dated October 2009 concerning, inter alia, the “Islamic Republic of Iran”, again furnished by the applicant.