Ireland - M.A.I. -v- Minister for Justice Equality and Law Reform & ors. [2010 825 JR]

Facts:

This judgment concerns a telescoped application for leave to seek judicial review of a decision of the Refugee Appeals Tribunal (RAT) refusing refugee status to the applicant.

The applicant is a member of the Kurdish speaking Zebari tribe, from Iraq. He arrived in Ireland on the 17th October 2008 and submitted an application for refugee status on the same date. The applicant claims that he fears persecution from an unnamed terrorist group, who approached him and requested that he park a car full of explosives in front of a police station which he agreed to carry out. However, upon returning home, he recounted the experience to his mother, with whom he went to the police and informed them of the encounter. According to the applicant, the police did not believe his story. Four days later, the mother was visited by men at her home, asking to see the applicant, who they stated had agreed to do a job for them. It wasn’t until the second time the men visited the mother that she realised that these were members of the same group who had asked the applicant to carry out an act of terrorism. Upon realising this, the mother advised the applicant to escape. The applicant left Iraq on the 20th September 2008, before travelling to Turkey where he stayed for 15 days before arriving in Ireland by truck.

The Refugee Applications Commissioner (ORAC) rejected the applicant’s claim for refugee status on the ground that his claim lacked credibility on a number of factors, after which he submitted an appeal to the RAT. The Tribunal’s decision affirmed the Commissioner’s recommendation, citing eight examples of the applicant’s evidence that led to the adverse credibility finding.

The applicant challenged by way of judicial review application, the Tribunal’s decision on a number of grounds including: that the Tribunal Member failed to assess the credibility of the applicant’s claim in the context of relevant country of origin information (COI) that had been presented; the Tribunal Member failed to make a finding as to whether the applicant was from Iraq, not giving due regard to original documentation submitted by him; and that the errors attached to the Tribunal Member’s adverse credibility findings were compounded by the interpretation process for the oral hearing of the applicant’s appeal. 

Decision & reasoning:

The High Court focused on a number of key questions in its decision:

1. Was there an absence of a proper interpretation service, which might warrant the quashing of the Tribunal member’s decision?
2. Did the Tribunal Member fail to give due regard to country of origin information and identity documentation submitted by the applicant?
3. Was the Tribunal Member flawed in his rejection of the applicant’s explanation for not seeking asylum in a safe first country (in this case Turkey)?

These questions were considered by the Court as follows:

1. The applicant clearly indicated that he required interpretation in the Kurdish-Badini dialect at the earliest possible stage in the process; however, the interpreter who was provided on the day of the applicant’s Tribunal hearing spoke a different dialect (Kurdish-Sorani) to that of the applicant. This was brought to the Tribunal member’s attention, who refused to adjourn the proceedings, despite the fact that a Kurdish-Badini interpreter had been present at the applicant’s prior s.8 and s.11 interviews.

 In this regard, the High Court submitted that the Tribunal was obliged to ensure that the same level of interpretation services are afforded to the applicant throughout all stages of the asylum process. Considering that the Tribunal Member, in his decision, acknowledged that the interpreter’s dialect “may not be exactly the same and it was possible that some words may differ slightly”, the High Court could not accept that the decision to proceed with the hearing satisfied the requirements of s.11(d) of the Refugee Act 1996 to afford the applicant a proper and fair hearing. Furthermore, the High Court submitted that proceeding with the appeal with a Kurdish-Sorani interpreter may have led to the Tribunal member making an erroneous decision. The Court acknowledges that the applicant challenged the Tribunal Member’s negative credibility finding on the basis that the account he gave to the Tribunal Member was not consistent with that provided to the Commissiner, despite the applicant maintaining that he gave the exact same testimony at both hearings. The Court insisted that it had to allow for the possibility that an error in interpretation could account for this discrepancy, finding that the infirmity in the quality of interpretation warranted the quashing of the Tribunal Member’s decision.

In terms of the Court’s ruling on interpretation the Judge noted that “central to the ability of a decision maker to make a rational and informed assessment of evidence tendered in the course of a hearing is the decision maker’s ability to receive that evidence through the clearest and most direct channel…where the person giving evidence does not speak the language of the decision maker, either adequately or at all, the service of an interpreter (who is versed in the languages of both) becomes a necessary and indeed mandatory tool” (Para 25).

2. The applicant challenged a number of the Tribunal Member’s negative credibility findings on the ground that they ran counter to the country of origin information that the applicant had submitted in aid of his appeal. The Tribunal Member submitted that his credibility findings were of such a fundamental nature that he was entitled to disregard the country of origin information, despite not recording what weight (if any) was placed on such documentation in his credibility assessment, which is allowed for only in exceptional circumstances. The Court found that none of the eight examples cited by the Tribunal Member in aid of his credibility finding were of such enormity that the Tribunal Member was relieved of his obligation to set out the weight he gave to the country of origin documentation presented to him. Thus, his failure to properly address the applicant’s claim in the context of available country of origin information is such that it affects the credibility conclusions to the extent that it ultimately affects the decision in the case.  

With regards to the applicant’s identity documentation, the Court examined whether the Tribunal Member dealt with the document in a fair manner as required by reg. 5(1)(b) of the EC (Eligibility for Protection) 2006 Regulations. Viewed in conjunction with the country of origin information, the identity document, which held that the applicant hailed from a governate of Iraq that was highlighted as being of particular concern in the country of origin information, should be an important tool in corroborating the applicant’s claim. However, despite the document being prima facie corroborative of the applicant hailing from a particularly dangerous region in Iraq, the Tribunal Member afforded “no weight” to the “purported” identity documents, without expressly stating the reasons for that decision, which led to a negative credibility finding. The High Court held that this was tantamount to outright rejection of the document, for which it is incumbent on the decision maker to state the reason in his decision. Merely relying on other credibility examples cannot justify the rejection where the substance of many of the other credibility issues themselves are impaired by the failure to appropriately consider relevant country of origin information. In this regard, the High Court found that the Tribunal Member’s failure to justify his disregard of the applicant’s identity document breached fair procedures.

3. In reviewing the Tribunal Member’s finding that the applicant’s explanation for not seeking asylum in Turkey due to his fear that it “would not be received favourably there” is not indicative of a well-founded fear or persecution, the High Court found that the Tribunal Member’s cursory rejection of the applicant’s explanations was flawed. It held that the Tribunal Member had an obligation, in line with previous case law on similar issues where such evidence is factored into a negative credibility finding, to examine and state expressly why the applicant felt that he could not seek asylum in Turkey.

The Court overall found that the Tribunal decision was flawed by reference to the standard of decision-making required in cases such as the present.

Outcome:

Leave granted and Tribunal decision quashed; case is remitted for reconsideration before a different member of the Tribunal.

Observations/comments:

This case is important with respect to its emphasis on the crucial role of interpretation in ensuring there is good communication.

Furthermore, it considers the requirements on the decision maker and, indeed, courts, with regards to assessing country of origin and documentation information presented by the applicant. EU law (Article 8 of the Asylum Procedures Directive, which Ireland is bound by) requires that country of origin information is taken into account and weight attached to the documentation put forth.  By excluding reliable information the RAT has clearly breached EU law. 

Other sources:

UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum Seekers (April 2009); Guy Goodwin-Gill and McAdam’s “The Refugee in International Law”