Asylum appeal to be re-heard after error made in introduction to Tribunal’s decision

An asylum appeal is to be re-heard after the High Court found that the introduction to the Refugee Asylum Tribunal’s decision had incorrectly stated that the Refugees Application Commission had found no or minimal basis for the application.

The applicant had been born in Nigeria, and his claim of asylum related to a land dispute that broke out in 2012, in which he claimed that his uncle was seeking to steal land belonging to him or his father.

He made an application for asylum in June 2013. This was rejected by the Refugees Application Commissioner, and he lost his appeal to the Refugee Appeals Tribunal.

The adverse credibility finding of the Tribunal had been based on matters relating to issues such as the applicant’s travel arrangements rather than the account of persecution as such.

The applicant sought judicial review of the Refugee Tribunal’s decision on a number of grounds.

First, the applicant submitted that the tribunal was obliged to decide the ‘core claim’ (the claim of persecution) and in this case had failed to do so.

In this regard, he relied on E.P.A. v. Refugee Appeals Tribunal IEHC 85, in which the tribunal was criticised for failing to give a “clear and reasoned finding on the central issue.”

However, delivering the High Court’s judgment, Mr Richard Humphreys noted that in his judgment in R.A. v. Refugee Appeals Tribunal (No. 1) IEHC 686, he followed P.D. v. Minister for Justice, Equality and Law Reform IEHC 111, which found that it was too simplistic to say that the tribunal must always consider the core claim of an applicant.

The approach taken in R.A. was that if an asylum claim failed to surmount any one of a number of distinct and separate hurdles for the success of such an application, there was no necessity to consider any other element of the claim.

However, the Judge noted that there may be exceptional cases where the entire story of the applicant is not rejected, and despite a general absence of credibility, a risk of persecution can arise from such limited “islands of fact” as may be left intact despite the lack of credibility.

This overall approach was consistent with a number of other decisions including Ojelabi v. Refugee Appeals Tribunal IEHC 42 (Peart J.);Imafu v. Minister for Justice, Equality and Law Reform IEHC 416 (Peart J.); and J.X. v. Refugee Appeals Tribunal, (Unreported, 2nd June, 2005) (Clark J.), and was the one preferred by the Judge.

Considering the argument that the tribunal needs to state whether the core claim is accepted, the Judge noted M.A. (Nigeria) v. Refugee Appeals Tribunal IEHC 16, in which it was stated that an applicant was entitled to a clear decision as to whether the core claim was being accepted, and if not, of the reason for rejection.

The Judge noted that in M.A., the court quoted B.O.B. v. Refugee Appeals Tribunal IEHC 187, in which it was said that the decision-maker must specify what part of the claim is being accepted and what part is being rejected.

However, the Judge found that if this was to be read as suggesting that the tribunal is under an obligation to specify what parts exactly of an applicant’s story did nor did not happen in a case where the applicant’s credibility is undermined generally, then he would be of the view that such an approach set the bar too high.

He found that the tribunal, having rejected the credibility of an applicant generally, does not have to specify what particular parts of the story offered might or might not be true.

The applicant also submitted that the decision rejecting the applicant’s credibility was based on peripheral matters which did not go to the core of the claim.

The Judge noted that section 11B of the Refugee Act 1996 allows credibility decisions to take into account “peripheral matters”, namely matters related to the manner of the making of the claim rather that its content.

While M.O.S.H. (Pakistan) v. Refugee Appeals Tribunal IEHC 209 had found that the section was not really relied on, the Judge noted that the section requires the commissioner or the tribunal to have regard to the matters set out in the section in every case.

The Judge agreed that many of the credibility issues which the tribunal had difficulty with, did not relate to the core issue of whether the alleged persecution actually happened.

However, “as a matter of logic and first principles, the credibility of an individual in relation to matters that are difficult or impossible to verify can, to some extent, be ascertained by reference to his or her credibility in relation to matters that can be verified.”

The Judge cited I.R. v. Minister for Justice, Equality & Law Reform IEHC 353, which states that a finding of lack of credibility must be based on correct facts, that are cogent, bear a legitimate connection to the adverse finding and relate to the substantive basis of the claim made and not to minor matters or to facts which are merely incidental in the account given.

While acknowledging that this constituted the most-cited judgment in the asylum field, the Judge suggested that while credibility should not be rejected because of minor and unimportant discrepancies, significant discrepancies and contradictions may be a basis for rejecting credibility even if they related to incidental matters.

Thus, I.R. should not be followed literally, but should be construed as referable only to a requirement that an adverse credibility finding should not be based on minor matters.

Considering the test to be applied for adequacy of the tribunal’s reasons, the Judge argued for a departure from the series of questions established in R.O. v. Minister for Justice and Equality IEHC 573, and be replaced by questioning “whether the applicant has discharged the burden of proof to show that the reasons offered for the rejection of the claim are so absent, so unintelligible, so trivial, so tainted by factual error or so irrational, in circumstances where any untenable element of the decision cannot be severed, as to warrant the quashing of the overall decision in all of the circumstances.”

The Judge also rejected arguments from the applicant that the tribunal engaged in conjecture and inadequately considered matters set out in the notice of appeal.

However, the fact that the introduction to the tribunal decision incorrectly stated that the commissioner rejected the application under s. 13(6)(a) of the Refugee Act 1996 (no or minimal basis for the application), rather than s. 13(6)(c) (failure to apply as soon as reasonably practicable), was found to require the quashing of the decision.

The Judge found that the possibility that a tribunal member approached the appeal on the incorrect basis that it had already been rejected as having no basis or a minimal basis is something that clearly has the potential to contaminate the decision overall.

It puts a negative spin on the appeal from the outset that could not sustain confidence that the correct approach was being adopted or that the perception of due fairness was being afforded.

Therefore, the Judge ordered the decision to be quashed, and the appeal to be remitted to the tribunal for re-hearing.

  • by Rachel Killean for Irish Legal News
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