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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M.R.C.S. -v- The Minister for Justice & Ors [2013] IEHC 326 (27 June 2013) URL: http://www.bailii.org/ie/cases/IEHC/2013/H326.html Cite as: [2013] IEHC 326 |
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Judgment Title: M.R.C.S. -v- The Minister for Justice & Ors Neutral Citation: [2013] IEHC 326 High Court Record Number: 2009 266 JR Date of Delivery: 27/06/2013 Court: High Court Composition of Court: Judgment by: Mac Eochaidh J. Status of Judgment: Approved |
Neutral Citation: [2013] IEHC 326 THE HIGH COURT JUDICIAL REVIEW [2009 No. 266 JR] BETWEEN M. R. C. S. APPLICANT AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL RESPONDENTS JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 27th day of June 2013 1. This is a 'telescoped' application for leave to seek judicial review where the applicant is requesting, inter alia, certiorari of the decision of the Refugee Appeals Tribunal (the "Tribunal") dated 141h January 2009 refusing the applicant refugee status. Background: 3. The applicant claimed asylum on the basis of a fear of persecution on grounds of nationality, political opinion (including imputed political opinion), race and membership of a particular social group owing to her involvement with FLEC as a munitions dealer and later a sympathiser, as an Angolan in Cabinda and as the wife of a FLEC activist. The applicant's claims were rejected by the Tribunal primarily on the basis of a lack of credibility and it is that decision which is sought to be impugned in these proceedings.
Submissions: 5. The respondent contends that the applicant has strayed into the realm of dissecting the findings of the Tribunal Member contrary to the requirement to read the decision as a whole, as specified by Cooke J. in I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 353. It is the court's view that each finding must be reviewed as was the approach taken by both counsel in their written submissions and at hearing. First credibility finding: 7. The respondent in reply states that to take this approach the applicant is essentially asking the Tribunal Member to ignore s.11B(c) of the Refugee Act 1996 whose provisions direct a decision maker to have regard to whether an applicant has given a full and true explanation of how he or she travelled to and arrived in the State. As such, the respondent claims that the veracity of the applicant's claim to have travelled to Ireland with her husband on false passports provided by priests and in the company of priests were matters the Tribunal was entitled to consider. In this regard the respondent submits that this finding was merely one of a number of factors that were found to undermine the applicant's credibility and that it is not open to the applicant to seek to eliminate credibility findings on the basis that they do not relate to her core claim and then assert that her core claim has not been considered at all. 8. I accept that the respondent was entitled to conclude as it did. I can find no legal error in the finding and though I might not have reached a similar conclusion, that is irrelevant in judicial review. The finding is not irrational and does not offend the duty to give reasons. Second credibility finding: Third credibility finding: 11. The respondent challenges this claim of the applicant on the basis that in her Statement Grounding the Application for Judicial Review the applicant sought to challenge only the finding of the Tribunal in relation to the ASY1 form and yet has sought to broaden that challenge to include the finding that the applicant did not provide a reasonable explanation as to why she did not seek asylum in France. This attempt to advance additional grounds at this stage is contrary to S.M v. Refugee Appeals Tribunal [2005] IESC 27 it is claimed. In any event the respondent states that the Tribunal correctly states that the applicant had not mentioned that she passed through France in the initial ASY1 form and that she could not have been unaware of this fact only to become aware of it when she went to complete her questionnaire. Further, the respondent states that no challenge is made to the Tribunal finding that no reasonable explanation was given for failing to apply for asylum in France. The provisions of s. 11B(B) of the Refugee Act 1996 are not a matter before the court in the respondent's view and the Tribunal did not make reference to them in making its finding. Counsel for the respondent also noted that both O'Keeffe J. and this court acknowledged that a protection decision maker may have regard to the failure of an applicant to seek refuge in a safe country en route to Ireland. 12. My view is that the applicant is attempting to broaden the scope of the challenge by reference to the matters actually pleaded and I may only allow that in certain limited circumstances which do not apply here. In any event the approach of the tribunal member reveals no illegality. The Tribunal's findings made were not based on an asserted claim as to Ireland being the first safe country encountered but rather on a combination of factors relating to her failure to mention that she passed through France and failure to give a reasonable explanation for not having claimed asylum in France in circumstances where this finding is not challenged. I find no flaw in the Tribunal Member's approach. Fourth credibility finding: 14. It is the respondent's view that the applicant was vague as to the identity of the persons from whom she had purchased the munitions. Simply put she had said she did not know who sold them to her, having previously said that the Army had sold them to her and then at the Tribunal hearing she said she didn't know who the vendors were but they came from the military base. This, in the respondents view, is an inconsistency in her evidence. Further, the respondent contends that any claims that a perceived mistranslation occurred at the hearing would have to have been raised far more clearly with the Tribunal Member . In any event, the respondent states that the Tribunal correctly stated that the applicant failed to clarify these matters when questioned in detail about them by the Presenting Officer at hearing. 15. This complaint - like many others pursed in these proceedings - bears the hallmark of an ordinary appeal point rather than the sort of matter properly pursued in judicial review. In order for me to accept the applicant's complaint I would be required to ask whether the findings of inconsistencies and vagueness 'flew in the face of fundamental reason and common sense' and plainly in my view, this finding could not be so characterised. It way well be arguable that a different conclusion is possible on the facts but more egregious fault must be attributable to the decision or finding in order for the High Court to set it aside in judicial review proceedings. Fifth credibility finding / Sixth credibility finding: 17. My view is the Tribunal Member was entitled to find it difficult to believe that the applicant could have avoided the Angolan authorities for a year and a half if they were in fact pursuing her as she alleged. The Tribunal Member quoted from a UK Home Office report to the effect that the Angolan forces occupied Cabinda during 2004 and that they pursued FLEC supporters. It is my view that the court is once again invited to arrive at a different conclusion on the facts and again I must reiterate that the conclusions here do not offend rationality and therefore I cannot interfere with them. Seventh credibility finding: 19. The Respondent correctly states that the applicant had described herself as a member of FLEC in her questionnaire. The Tribunal was entitled to consider the difference between the evidence at hearing and the version set out in her questionnaire. Further, I accept was no obligation on the Tribunal to recite every aspect of her evidence or parse and analyse her words . It is clear on the facts that there was a difference between versions and the Tribunal Member was entitled to weigh this in the balance as one of many factors used to assess credibility. Eighth credibility finding: 21. The respondent again denies that the Tribunal committed any error in reaching the conclusion that it would be difficult to believe that a person who had provided assistance to FLEC would be seen as an enemy and betrayed as was claimed. The respondent notes that it was put to the applicant at the Tribunal hearing by the Presenting Officer that it was not plausible that she would be betrayed given all she had done for these people and that the applicant could only say that the authorities had come looking for her. In this regard it is submitted that there was no confusion in the Tribunal's finding and that the finding was rational and within the jurisdiction of the Tribunal to make. 22. In my view the court is again asked to make a finding of irrationality merely because a different conclusion on the facts might be possible. This not the basis on which this court can intervene. It is yet another example in this case of an appeal point dressed up as an attack on rationality. Claim of imputed political opinion: The applicant states that at the hearing she said that the authorities probably felt she was more involved [with FLEC] because she lived with a member and contends that the reason she was not arrested at the time that her husband was arrested was because she was not with him at the FLEC gathering. Further the applicant claims that there was no indication at the hearing that the Tribunal Member did not believe that the applicant and her husband were married and counsel highlights that a UN Travel document issued from the Irish Naturalisation and Immigration Service in September 2008 to permit the applicant to travel to Spain with her husband for medical treatment. Counsel states that a copy of the correspondence in respect of this travel document was faxed to the Tribunal but that it is unclear if it was before it at the hearing. Counsel for the respondent contends that the Tribunal did not disbelieve the applicant's claim to be married to her husband, but rather that there was no objective basis on which to accept that the there was any reason why the Angolan authorities would be aware of the marriage. The respondent is of the view that the applicant has failed to show why her husband's opinions would be imputed to her by the Angolan authorities or that they would even be aware of the marriage and that there was no error of law in the Tribunal's decision. I agree with this analysis and therefore accept that the findings as to imputed political opinion are robust. It is irrelevant that Irish Authorities may consider the applicant and her husband to be married. Failure to consider the applicant's core claim: 25. I cannot conclude that there has been a failure to adjudicate on the applicant's core claim. The respondent notes that the applicant's claim is that if returned to Angola she would be in danger of future persecution. As such, it is contended that the Tribunal had to assess her claim based on the account that she had given of events in Angola which the applicant claimed had led to her fleeing that state. This was done in accordance with Regulation 5(3) of the 2006 Regulations. I agree with the submissions that the matters considered by the Tribunal were not minor or peripheral. It is clear that the Tribunal did not believe the applicant's claim that she was involved in selling munitions to FLEC, did not believe her account of her association with the group and did not believe her claim to have been betrayed by its members. The applicant's core claim was assessed and dismissed for want of credibility. Fair procedures issues: 27. The applicant also claims a breach of fair procedures in the making of its decision by the Tribunal Member. In particular, the applicant claims: that the Tribunal Member has failed to take account of material evidence or matters of material importance; has taken irrelevant matters into account; has failed to take account of the language/interpretation difficulties at the hearing; has failed to make clear determinations in respect of factual matters; has failed to afford the applicant the benefit of the doubt; and has failed to apply the correct burden and standard of proof. Finally, it is submitted that the Tribunal has failed to properly consider the issue of persecution. 28. Counsel for the respondent cites the decision of B.N.N. v. Refugee Applications Commissioner [2008] IEHC 308 to the effect that a decision maker is not required to debate with the person who is to receive a decision every one of the conclusions on credibility that might be made and that there was no obligation on the Tribunal Member to ask the applicant to clarify her whereabouts at the time of the husband's arrest or to put county of origin information to the applicant. Further, the respondent claims that the issue of whether the applicant's husband's political beliefs would be imputed to her was a matter to be decided by the Tribunal and that the Tribunal was entitled to find that she did not establish that this had occurred. 29. The respondent rejects the claim that the Tribunal failed to consider any aspect of the evidence before it. In this regard, the respondent notes that there is no obligation on the Tribunal to refer expressly to each aspect of the evidence, rather the respondent is of the view that the reasons for the Tribunal decision are clear from the face of the decision. Further, the respondent states that the applicant's husband's evidence could not be considered to be independent corroborating evidence but that it was nonetheless considered by the Tribunal and referred to in the decision. 30. The respondent also notes that the Tribunal decision expressly states that the country of origin information on the applicant's file was considered and refers in particular to one of the more recent reports by Amnesty International which had been submitted by the applicant. However, the respondent also notes that the contents of country of origin information could not prove the veracity of the applicant's claims and refers to the decision of B.F. v. Minister for Justice, Equality and Law Reform [2008 IEHC 126 in this regard to the effect that: "Once a fundamental lack of credibility is found, the Tribunal is not obliged to refer to country of origin information to see whether her story could be true". Further, the respondent claims that there was no selective or biased use of country of origin information in a manner adverse to the applicant. 31. The key finding in this decision of the Tribunal is the fundamental rejection of the applicant's credibility based on numerous findings. Strenuous attempts have been made in these proceedings to overturn each of these findings. I have found all of these findings to be well within the bounds of rationality. Against this background it is difficult to find space for the complaints of want of due process which effectively seek to reiterate the complaints as to credibility under other heads of complaint. I accept the respondent's submissions in this regard and can find no basis for any finding of want of fairness or due process or anything unfair that might have led to unjust result. 32. Extremely detailed and well-written submissions were delivered by the applicant in this case running to some 32 pages of single spaced text . The industry of the applicant's counsel has to be admired but ultimately the points raised cannot overcome a clear and careful Tribunal decision despite every conceivable criticism being raised against it. This was a classic example of an attempt to deconstruct a decision of the Tribunal and to avoid reading it as a single decision which Cooke J. counselled against in I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 353.. I have no hesitation upholding this decision of the Tribunal. Leave to seek judicial review is refused. |
