Ireland - High Court, 31 July 2009, E.M.M. v Refugee Appeals Tribunal, [2009] IEHC 356
| Country of Decision: | Ireland |
| Country of applicant: | Congo (DRC) |
| Court name: | High Court (Irvine J) |
| Date of decision: | 31-07-2009 |
| Citation: | [2009] IEHC 356 |
| Additional citation: | 2008 No. 504 J.R. |
Keywords:
| Keywords |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
Headnote:
This case concerned a challenge to the Tribunal’s conduct of a asylum appeal hearing (alleged pre-judging of the case against the applicant due to an argument with the applicant’s lawyer) as well as the Tribunal’s reasoning (alleged flaws in credibility analysis and failure to share investigative burden with the applicant, as required by UNHCR handbook). The challenge was unsuccessful.
Facts:
The applicant’s fear of persecution related to his ethnicity and his imputed political opinion. His asylum claim was refused by the government the applicant appealled to the Refugee Appeals Tribunal. The applicant claimed that at the hearing of his appeal his lawyer and the Tribunal Member (i.e. the decision-maker) engaged in a contentious dispute about another case, and that the hearing was adjourned due to his lawyer’s lack of decorum. The hearing resumed the following month with another lawyer acting for the applicant. The appeal was refused. The applicant then applied for leave to judicially review the Tribunal.
Decision & reasoning:
The applicant alleged that the appeals process was tainted by a lack of fairness on the part of the Tribunal, who prejudged the appeal against him in part due to the contentious manner in which the first hearing was adjourned. The applicant also complained that the Tribunal did not have the requisite legal and political knowledge to hear the case (as required by Reg 5.1(a) of the European Communities (Eligibility for Protection) Regulations 2006 [which transposes Art 4.3(a) of the Qualification Directive into Irish law]. The applicant argued that the Tribunal had a shared investigative duty (relying on the UNHCR Handbook) and had failed in this duty by not having regard to an important guidance case from the United Kingdom in the area.
The Court did not accept any of these arguments. It held that because the applicant had participated in his appeal hearing (without seeking the Tribunal Member to recuse himself) he could not now complain of a lack of fairness. The Court was not persuaded that the Tribunal had been unaware of the important UK case (which in any event was not part of Irish law). The onus of proof was on the applicant, who had legal representative – it was not mandatory for the Tribunal to bring the UK country guidance case to their attention; the UNHCR Handbook imposes no such obligation as part of the shared investigative duty in para. 196.
The applicant also complained that the credibility findings were flawed, but the Court held that each adverse credibility finding had a legitimate nexus to the facts, as required by the case of Kramarenko. The Court reaffirmed that the weight to be attached to a credibility issue was a matter for the Tribunal, and was not susceptible to review. It is not the function of the High Court to enquire into credibility findings, if it is clear that the appropriate principles were applied by the lower Tribunal, as here.
Outcome:
Leave for judicial review was refused.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| UK - AB and DM (DRC) v. Secretary of State for the Home Department, CG [2005] UKIAT 00118 |
| Ireland - Da Silveiria v Refugee Appeals Tribunal (Unreported, High Court, Peart J. 09/07/2004) |
| Ireland - Imafu v Refugee Appeals Tribunal [2005] IEHC 416 |
| Ireland - Kramarenko v Refugee Appeals Tribunal [2005] 4 IR 321 |