Ireland - High Court, 11 September 2012, Barua v Minister for Justice and Equality, [2012] IEHC 456

Facts:

Prior to the application for subsidiary protection status and humanitarian leave to remain, the RAT had rejected the Applicant’s appeal against the decision of ORAC denying his application for refugee status. The RAT decision was based on negative credibility findings in a context where the Tribunal referred to forged and fraudulently obtained official documents submitted by Bangladeshi nationals but made no finding thereon in the instant case. This decision of the RAT was not challenged by the Applicant by way of judicial review.

In his decision on subsidiary protection and humanitarian leave to remain, the Minister noted that the RAT had identified serious credibility issues and stated that “All documents submitted and referred to have been read and given consideration” [para 17].

The Applicant challenged the Minister’s decision on the grounds that the Minister had failed to consider certain documents in the Applicant’s file which were capable of corroborating his claims. The Applicant argued that if a decision maker disregards relevant documents, it must give reasons for so doing.

The Minister argued that he was entitled to adopt the findings of the RAT. In the instant case, the Tribunal’s decision contained country of origin information which referred to fraudulent documents. The Minister understood this to mean that the Tribunal believed the Applicant’s documents were forged and the Minister followed this view.

In addition, the Minister, relying on H.M. v Minister for Justice and Law Reform and Debisi v Minister for Justice and Law Reform, argued that, as the Applicant had not challenged the decision of the RAT or criticised its findings in the subsidiary protection application, he was barred from doing so now. The Applicant, however, argued that to argue every deficiency in a RAT decision in a subsequent subsidiary protection application would make it an appeal from the Tribunal decision. 

Decision & reasoning:

In considering the basis for the findings of lack of credibility by the RAT, the Court noted that its purpose is not to disagree with them but to determine whether the findings were strong enough to permit the Minister to give no weight whatsoever to apparently corroborative documentation. It found that, in the instant case, these were based on matters which were marginal and there was therefore a duty on the Minister to weigh those credibility issues with the apparently corroborative documentary evidence.

If it was to be dismissed, the documentary evidence should have been dismissed for a stated reason. The Court, however, found that the relevant documentation was not referenced, even casually, by the Minister. It held that, while not every document submitted needs separate and microscopic examination, where the documentary evidence is prima facie corroborative of the Applicant’s story the decision maker must address this issue. If the Minister discounts, dismisses, rejects or somehow finds this documentary evidence to not have corroborative effect, it is incumbent on him to explain why: “Merely stating that, ‘[a]ll documents submitted and referred to have been read and given consideration’ or quoting passages from country of origin information relating to forged documents is not enough to communicate such a view” [para 26].

If a decision maker actually believes that some or all of the Applicant’s supporting documentation was forged or fraudulently obtained, this ought to be put to the Applicant or an express finding should be made and the basis of that finding stated. The Court found this to be especially so in circumstances where the decision maker is relying on marginal credibility findings in rejecting the protection application.

In reaching the above conclusions, the Court referred to the ten principles for the treatment of evidence which goes to credibility laid out by Cooke J. in I.R. v Minister for Justice, Equality and Law Reform as well as the obligation to give a reasonable explanation for an administrative decision as set out by Murray C.J. in Meadows v Minister for Justice, Equality and Law Reform.

The Court pointed out that, in the letter informing the Applicant that his application for refugee status is refused and setting out his options, the Applicant is told that an application for subsidiary protection status is not an appeal against the refusal of refugee status. On this basis, the Court found that the Applicant is entitled to infer that he is not required or indeed not permitted to reopen the earlier decision. On the other hand, although the application for subsidiary protection cannot be an appeal from the decision of the RAT, the regulations oblige the Minister to consider all documents and matters submitted – which are usually the same material as previously submitted during the asylum application - and this consideration must be meaningful. The Court stated that, “These internal contradictions in the rules create an unsatisfactory situation… Rules of Court on third party procedure and provisions of the Civil Liability Acts 1961 (as amended) are designed to ensure that the same facts are not tried twice to avoid the possibility of different and conflicting results. The very opposite has been achieved in the Irish regime for international protection of persons claiming to be in fear of harm” [para 40 - 41].

The Court also considered the Minister’s decision in relation to his consideration of the personal circumstances of the applicant and whether the alleged actor of harm in this case [an individual Islamic activist with Taliban leanings and influence in the Applicant’s region] could be considered to be an actor of serious harm within the meaning of Regulation 2(1) but made no findings on these issues as they were not challenged in the Applicant’s submissions.

Outcome:

The Minister’s decision to refuse subsidiary protection status and humanitarian leave to remain was quashed.