Ireland - B.L. (Nepal) v. Refugee Appeals Tribunal [2015 No. 2012 959 JR]

Facts:

The Applicant is a Nepalese national. He fears persecution based on an imputed political view. His eldest brother was a prominent member of the Maoist rebel group in Nepal and was shot and killed by Government forces. Since then, both the Government and the Maoists have been looking for the Applicant. The Government has a warrant for the Applicant which was posted around his village. The Maoists approached the Applicant and asked him to take his brothers place in their group. The Applicant refused to do as and as a result, the Maoists view the Applicant as a government spy. The Applicant received threats from the Maoists. He then fled Nepal.

The Applicant fled to India where he lived for 6 years with relatives of his wife. He worked for them on their small farm. Though legally allowed to work in India, the Applicant stated he was never given the opportunity to find work outside of the farm. He returned to the border of Nepal a number of times to visit his wife. The Applicant left India as he felt he was a burden on his relatives.

Obtaining a visa to the UK, the applicant lived there for four months. He subsequently left to Ireland and sought asylum there. Following on from Dublin proceedings against the applicant and an oral appeal hearing on the substantive asylum claim before the Refugee Appeals Tribunal, the applicant’s claim was rejected on account that the claim lacked detail and, thus, credibility. 

Decision & reasoning:

The High Court first and foremost considers the failure of the RAT to record the applicant’s oral appeal hearing which included the cross-examination and questions posed by the former. Referring to HID, BA v. the Refugee Applications Commissioner before the Court of Justice, raising issues pertinent to the right to be heard, presentation of supporting evidence and the right to an effective remedy, the High Court questioned whether the system as presently operated could be seen as respecting the latter right. The Court does not, however, enter into further detail given that the applicant had not raised this particular point in his submissions. 

The High Court subsequently considered the adverse credibility findings against the Applicant. The Court accepted that when considering credibility, the Tribunal must look at the totality of the evidence. However, the Court stressed that on making negative findings, these must be firmly grounded in objective facts and accompanied by cogent reasoning. It was not acceptable to find that the Applicant is not credible in general without reference to specific reasons.

The High Court then considered the Tribunal’s findings in relation to India. The Tribunal found that the fact that the Applicant remained in India for six years in relative peace undermined his application and it was indicated that the Applicant should have applied for refugee status in India. The High Court criticised the Tribunal for not referring to the fact that India is not a signatory to the UN Refugee Convention. It was held that even if this point would not have ultimately affected the decision, the lack of reference to the fact severely undermined the decision. Also, it was noted by the Court that the fact that the Applicant lived there in peace for 6 years, does not necessarily mean he can continue to do so. Furthermore, as India is not a signatory to the convention, the suggestion that the Applicant should have applied for asylum in India is meaningless.

The Applicant stated that he left India as he felt he was a burden on his relatives. The Tribunal noted that this was not indicative of a person “fleeing” persecution. The High court heavily criticised the emphasis placed by the Tribunal on the requirement for the Applicant to be “fleeing” persecution. The Court stressed that there is no requirement under the convention to be actively fleeing persecution. The requirement is to be outside their country of origin where, if returned, they fear persecution. The Court found that the emphasis on fleeing persecution is incorrect and unreasonable.

It was stated by the Tribunal that the Applicant provided no logical or plausible explanation for failing to seek asylum in the UK. However, it is clear that the Applicant did provide an explanation in his S.11 interview. This explanation was not considered or investigated by the Tribunal. Instead, the Tribunal merely stated that a plausible explanation was not provided.  Thus, the Tribunal failed to give a reasoned explanation for their decision. The High Court criticised the approach by the Tribunal stating that it “appears to be on gut feeling rather than reasoned decision making” (para.42).

The Applicant applied for and obtained a passport from the Nepalese authorities in 2009. The Tribunal considered this as a contradiction to his assertion that he is in danger from the authorities. Again, however, the Tribunal did not consider the Applicant’s explanation as to why the passport did not mean that he was free from danger from the authorities. The Applicant claimed that the body that issue passports are separate from that of the police. He also claimed that he did not apply for a passport in the same district from which he is wanted by the authorities. Rather than considering this explanation and giving reasons as to why it shall or shall not be accepted, the Tribunal merely stated that the Applicant did not provide a reasonable explanation for the apparent disparity. Furthermore, the Tribunal failed to explain precisely why they felt that the Applicant was no longer in danger from the authorities.

The Tribunal also criticised the Applicant for confusion on the dates his brother was killed. t The Tribunal stated that he brought no clarity to this disparity. However the Court noted that the Applicant did explain why he was confused by the dates. The Tribunal failed to address this explanation in the decision. Instead, a general statement was made about the Applicants failure to clarify the issue. The Court held that the failure to address the explanation, or to give any reasoning as to why the explanation is not sufficient, is unreasonable.

The High Court further criticised the Tribunal for lack of specificity with regards to the Applicant’s core claim. The Applicant claimed that he is in danger of persecution from the Maoists as he declined to take his brothers place in the group. However, the Tribunal did not address this directly. Instead they stated that it was not plausible or credible that the Applicant be in danger from the Maoists as they are now in power and have, thus, achieved their objective. It is unclear whether the Tribunal proposes that the Maoists will provide the Applicant with State Protection or whether they will simply stop pursuing the Applicant. As the Tribunal failed to consider the core issue that the Applicant is in danger from the Maoists as he refused to join them, the decision is defective.

Finally, the High Court criticised the view of the Tribunal that the Applicant’s claims of feared persecution in Nepal are incredible as the Applicant’s family continue to reside there safely. The High Court condemned this view stating that the Applicant is applying for asylum for himself and not for his family. Therefore the continued residence of his family in Nepal is irrelevant. 

Outcome:

Application Granted and therefore the decision of the Refugee Appeal’s Tribunal is quashed.

Observations/comments:

A pertinent aspect in this decision is the importance of the Tribunal to substantiate, in detail, its findings. It is not acceptable for the Tribunal to hold adverse credibility findings without explaining the reasoning behind such a finding clearly. The Tribunal must address all relevant evidence and documents presented before it and provide an explanation as to why each aspect is or is not accepted as credible. Furthermore, it is vital that the Tribunal fully address the Applicant’s core claim. Any findings in relation to the core claim should be clearly substantiated and related directly back to the claim.

A further important aspect of this decision is the Court’s view of the requirement to “flee” persecution. In no uncertain terms, the High court condemned the emphasis placed on the requirement to be actively “fleeing” persecution for a successful claim stating that this view is incorrect and unreasonable.

Lastly, the decision raises important questions as to the asylum procedural system within Ireland, specifically on the components to a right to an effective remedy. Notwithstanding that the applicant had not brought this argument forward the Court still takes the opportunity to strongly criticise the RAT in its decision regarding the recording of evidence. From para 4 of the decision this appears to be a recurrent flaw in proceedings before the High Court and thus one which could be deemed to be structural.

The Court effectively advances that to not have recorded the oral appeal hearing was to render null an effective remedy, in this case a correct exercise of its jurisdiction to undertake judicial review. Reference to HID in this decision certainly hones the point home, resurfacing issues relating to whether the RAT can themselves be seen to be in compliance with an effective remedy.

See also analysis on StareDecisis Law Reports: http://www.staredecisishibernia.com/refusal-nepalese-nationals-asylum-claim-defective-core-claim-not-considered/

Other sources:

Article 5 of the EC (Eligibility for Protection) Regulations, 2006

Hathaway and Foster (2nd edn.) The Law of Refugee Status