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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Roman v. Refugee Appeals Tribunal & Ors [2003] IEHC 38 (10 July 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/38.html Cite as: [2003] IEHC 38 |
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RECORD NO. 842 JR 2002
BETWEEN
APPLICANT
RESPONDENTS
JUDGMENT of Mr. Justice Gilligan delivered on the 10th day of July, 2003
The applicant in these proceedings is a Romanian national born on the 7th April, 1959. He describes himself as a Roma Gypsy and a citizen of Romania and he arrived in Ireland on the 30th May, 2000. He sought asylum status and completed an application for refugee status questionnaire on the 6th June, 2000. He subsequently attended an interview at the office of the Refugee Applications Commissioner on the 14th December, 2001 and a report pursuant to section 11 (2) of the Refugee Act, 1996 issued on the 7th January, 2002. The report pursuant to section 13 (1) of the Refugee Act, 1996 as amended issued on the 30th January, 2002 and the recommendation was that the applicant should not be declared to be a refugee.
From this decision the applicant appealed and his appeal came on for hearing on the 14th November, 2002. The applicant was represented by his solicitor.
The Refugee Appeals Tribunal member gave his decision on the 27th day of November, 2002 and found in the circumstances that the applicant was not a refugee within the meaning of section 2 of the Refugee Act, 1996 as amended and he accordingly affirmed the recommendation of the Refugee Applications Commissioner and dismissed the appeal.
In this application the applicant seeks the following reliefs:
(a) An order of certiorari by way of application for judicial review quashing the decision of the Refugee Appeals Tribunal to refuse to recommend that the applicant be declared to be a refugee pursuant to the Refugee Act, 1996 section 16.
(b) A declaration by way of application for judicial review the second named respondent acting on behalf of the first named respondent erred in law and or in fact in his conduct of the applicants appeal hearing and his determination thereof dated the 27th day of November, 2002.
(c) An order of mandamus by way of application for judicial review required the first named respondent to rehear the applicants appeal against the recommendation of the Refugee Applications Commissioner.
(d) An interim injunction by way of application for judicial review restraining the third named respondent from acting on foot of the decision of the Refugee Appeals Tribunal member as dated the 27th day of November, 2002 pending the outcome of these proceedings.
The grounds upon which the relief is sought are as follows
(i) The second named respondent at all times acting on behalf of the first named respondent made an adverse finding in relation to the applicants credibility which is unsustainable and wrong in law for inter alia the following reasons;
(1) It has no evidential basis and is based on pure conjecture on the part of the second named respondent.
(2) It is not based on any objective evidence or country of origin information.
(3) It fails to put the applicants account in the context of the objective information available in relation to the position of the Roma Gypsy community in Romania
(4) It is based on misconception.
(5) It is devoid of any proper adequate or cogent reasoning.
(ii) The second named respondent failed to give any or any proper weight to the country of origin information available to him or to place and consider the applicants account in the context of the country of origin information available to him.
(iii) The second named respondent fails to take into account relevant considerations and or to take into account irrelevant considerations.
(iv) The second named respondent failed to apply a forward looking test in assessing whether the applicant had a well founded fear of persecution in Romania.
(v) The second named respondent applied an incorrect standard of proof in his assessment of past events.
(vi) The second named respondent placed undue weight on his assessment of past events.
(vii) The second named respondent erred in law in his finding that the applicant had not been subjected to persecution for any reasons contemplated by section 2 of the Refugee Act, 1996 as amended.
(viii) The decision of the second named respondent was wrong in law irrational unreasonable and are contrary to fundamental reason.
(ix) The applicant is at risk of being made the subject of a deportation order unless the third named respondent was restrained by the injunctive reliefs sought at paragraph 4 (d) hereof.
The member of the Tribunal gave his decision as follows:
"Introduction
The applicant in this matter brings his appeal against the recommendation of the Refugee Applications Commissioner that he be refused refugee status in Ireland.
Representation
Mr. Con Pendred, AC Pendred & Co. Solicitors, appeared for the applicants. The Presenting Officer was Mr. Max Factor.
Evidence
The applicant stated that he was born in 1959 and was a member of the Roma Community. He had problems with the Romanian authorities while he lived in Romania.
In 1996, the applicant stated that he protested at a local school, which his children attended, because they were being mistreated by other children. As a result of this, he was arrested and charged with revolting, and was sentenced to two years in Bacau Prison. When he was released in 1998, he returned to work for the company that employed him previously in Onesti.
When the applicant returned to his job, he stated that the company started down sizing and, as a result they laid off a number of people. He stated that the Roma employees were the first to be dismissed. As a result of this the applicant organised a revolt in the factory. He was arrested, charged, and sentenced to two years in prison in Bacau. The application stated that when he was released from prison, in the year 2000, his family were in Ireland. He decided to leave Romania and come to Ireland. The applicant stated that he feared he would be targeted after his release from jail and that he had to leave the country.
The applicant referred to the Legal Medical Certificate, dated 23rd March, 1999, on his file. In this, it stated that he was hit by four people on the night of 20th/21st March,
1999, with knife, fist and foot. It made no reference to him being in prison and, on being asked why, by the Tribunal, the applicant stated that he was taken to a hospital from the prison.
The applicant stated that he left Romania because his life was in danger
In reply to Mr. Factor, the applicant stated that, in 1996, his children were at the school in which he organised the protest. He had no problem until the police came. After the police came, nobody was hurt. The applicant was branded as a ring leader of the revolt. Eleven other people were charted had also got prison sentences.
In relation to the second incident, at his workplace in 1998, the applicant stated that he was again the ring leader but that other Romas were arrested and charged with the offence of revolt, and were also imprisoned
Submissions on behalf of the Applicant
Mr. Pendred submitted that the applicant was a member of a social group and he was seeking refugee status because of persecution for this and also for his political opinion. He had suffered discrimination while he lived in Romania because of his ethnic origins
Mr. Pendred referred to the Section 13 Report and made extensive submissions on it's findings. He also referred to the independent country of origin information, attached to the grounds of appeal, with regard to the life of the Roma in Romania. He submitted that there were excessive sentences for the applicant because of his offences, which were deemed political.
He submitted that the applicant was in danger and had to flee the country. His evidence should be accepted and the burden of proof had been discharged by the applicant.
Submissions by the Presenting Officer
Mr. Factor submitted that it was hard to believe that the applicant was sentenced to two years in jail because of taking part in a peaceful demonstration. There was no evidence on file that he was found guilty of a crime. There was no evidence of persecution.
Decision
The applicant in this matter bases his claim for refugee status on the grounds of persecution because of his membership of a social group, his ethnic origins, and his political opinions.
The applicant gave evidence that in 1996 he was arrested as a result of taking part in a peaceful protest in a school because of the treatment of his children, and other Roman children, by the children in the school. He stated that, as a result, he was sentenced to two years in prison. I find this evidence to be implausible. I do not accept that the applicant was sentenced to two years in jail because he took part in a peaceful protest and, in the absence of any documentary evidence, I find I cannot rely on-the applicant's evidence in this regard.
The applicant stated that, on his release from prison, the was taken back at his old job and, subsequently, due to down sizing, redundancies took place. The applicant stated that Romas were singled out because of their ethnic origins and first to be made redundant. The applicant organised a protest and, as a result, that he was jailed for two years in Bacau Prison.
Having considered the evidence given by the applicant and referred to the documentary evidence, furnished to the Tribunal on his behalf, I find that it contradicts the applicant's evidence. I find that the document which stated that he was examined by a doctor, in 1999, when he was allegedly in Bacau Prison, makes no
reference to the prison. In light of this I find that I cannot rely on the applicant's evidence.
The applicant stated that on his release from prison he had to leave the country because his family were in Ireland He stated that for this reason he came to Ireland because he did not feel safe in Romania. I am of the view that the applicant's principal reason for coming to Ireland was that his family were already here.
I am not satisfied that the applicant has been subjected to persecution for any reason contemplated by section 2 of the refugee Act, 1996 (as amended).
In the circumstances, I find that the applicant is not a refugee within the meaning of Section 2 of the Refugee Act, 1996 (as amended).
Accordingly, I affirm the recommendation of the refugee Applications Commissioner and dismiss the appeal."
In order to succeed in his application, the applicant has to satisfy this Court that the grounds as made out for seeking leave to apply for judicial review are reasonable, arguable and weighty with the added proviso that they must not be trivial or tenuous.
Insofar as the applicant alleges that the Refugee Appeals Tribunal member made a finding adverse to the applicant's credibility, failed to give any or any proper weight to the information on the country of origin available to him and failed to properly consider the full evidence before him, it does appear that the Refugee Appeals Tribunal member came to the conclusion that the applicant's evidence was implausible and that he could not rely on his evidence. The reality of the situation is that the Refugee Appeals Tribunal member had the opportunity to observe the demeanour of the applicant and it does appear that there was evidence from which the tribunal could come to the view that certain matters were implausible and that there was a lack of credibility such as could have led the Tribunal to a
finding that the applicant was not a refugee within the meaning of section 2 of the Refugee Act, 1996.
Prior to the hearing of the appeal before the Refugee Appeals Tribunal member, the applicant had the benefit of the reports and recommendations under section 11(2) and section 13 (1). It is clear from these documents that there were issues of credibility and that the applicants alleged two periods in jail were of fairly crucial importance to the applicant's application for refugee status and adds to the basis upon which he failed to convince the Commissioner in the first place that he was entitled to refugee status.
The Refugee Appeals Tribunal member does state in the course of his decision that he has considered the evidence given by the applicant and referred to the documentary evidence furnished to the Tribunal on his behalf.
In terms of the scope of the court's powers to upset the findings of a Refugee Commissioner and/or a Refugee Appeals Tribunal with regard to the credibility of an asylum seeker, the case-law appears to have drawn two distinctions, namely:
1. A distinction between findings of credibility based on an assessment of the oral evidence of the asylum seeker who has appeared before the Commissioner and findings of credibility where such findings are based wholly or mainly on documentary evidence before the tribunal.
2. A distinction between contexts where the tribunal makes findings in respect of the credibility of an asylum seeker with analytical regard to the evidence of the persecution of which the asylum seeker complains and the evidence of the conditions in the country of origin, and where the tribunal makes findings of credibility in the absence of any general and relevant findings of fact in respect of the fear of persecution held by the applicant and the conduct in the state from which the asylum seeker flees, or failing to link any findings on the credibility of the asylum seeker to such findings of fact.
In Borrissov v. Secretary of State for the Home Department [1996] Imm A.R. 524, the Court of Appeal stated:
"Thus the jurisdiction of the Immigration Appeal Tribunal is not limited to questions of law, and it is within the scope of their jurisdiction for them to review, if they see fit to do so, the Special Adjudicator' conclusions of fact, though no doubt this power will be sparingly exercised, and in any event, in accordance with general principles, the Immigration Appeal Tribunal will naturally be most reluctant to interfere with a finding of primary fact by the Special Adjudicator which is dependent on his assessment of the reliability or credibility of a witness who has appeared before him" (emphasis added).
In this regard, see also Assah v. Immigration Appeal Tribunal [1994] Imm A.R. 519; Ikhlaq v. Secretary of State for the Home Department [1977] Imm A.R. 404 and R v. Immigration Appeals Tribunal, ex parte Ahmed [1999] INLR 473. This is a specific application of the principle generally applicable in judicial review proceedings that the merits of a decision are not open to review save in accordance with the "no evidence" rule laid down in O'Keeffe v. An Bord Pleanala [1993] I.R. 39 which applies in the refugee law context also: see Zgnat'ev v. Minister for Justice, Equality and Law Reform (unreported, High Court, Finnegan J, 29th March, 2001). In any circumstance where the decision of the tribunal with respect to the credibility rests wholly or mainly with the veracity or consistency of the asylum seeker's oral evidence (including circumstances where the second distinction mentioned above is an issue), presumptive judicial reluctance to interfere with the findings of the tribunal with regard to the witness' oral evidence is the starting point of analysis. Particularly where the tribunal makes a finding on the first aspect of the test for refugee status in section 2 of the Refugee Act, 1996 i.e. the presence or otherwise of a genuine subjective fear of persecution on the part of the asylum seeker, the finding of the Commissioner will
depend upon assessment of the credibility and consistency of the asylum seeker's oral evidence and this assessment will in turn be heavily influenced by assessment of the asylum seeker's demeanour. An appellate tribunal or the court of review is in no position to comment on the demeanour of a witness: this is the rationale for the general reluctance of the court to upset findings based on oral evidence.
The first distinction
Under section 2 of the Refugee Act, 1996, an applicant for refugee status must demonstrate a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion". It is generally accepted that demonstrating such a "fear" involves the applicant for refugee status firstly demonstrating a genuine, subjectively held fear of persecution and, secondly, demonstrating facts from which it may be inferred that there is an objective fear of persecution based upon available information on the conditions in the state of origin of the applicant for refugee status: the evidence of the applicant regarding the fear of persecution he holds must cohere with the evidence available regarding the conditions in the state of origin which, on an objective assessment, leads to the conclusion that the subjective fear of the applicant is well founded.
As outlined above, the courts have drawn a distinction between contexts where assessments of credibility depend on oral evidence and where such assessments depend on documentary evidence. The significance of such a distinction in terms of the test applicable in deciding claims for refugee status is that the first, subjective limb of the test will inevitably rest on the oral testimony and demeanour of the applicant whereas the second limb of the test - the objective well-founded fear of being persecuted - involves an assessment of the
information available on the conditions of the state of origin and will generally be based upon documentary information relating to such conditions. The English courts have held that any appellate tribunal is in as good a position as the initial tribunal to assess the merits of any credibility finding where the finding is based on any documentary evidence of the circumstances in the country in respect of which the asylum seeker seeks refugee status and to draw its own conclusion in this respect: see R v. Immigration Appeal Tribunal, ex parte Balendran [1998] Imm A.R. 162; Sarker v. Secretary of State for the Home Department (unreported, 9th November, 2000, Court oŁ Appeal).
However, in principle, the distinction between oral and documentary evidence would not have any impact or vitality in judicial review proceedings save to the extent that a perusal of the documentary evidence in issue demonstrates that there is no evidence on which a reasonable adjudicator could reasonably have reached-the conclusions he did: in other words, where the test in O'Keeffe v. An Bord Pleanala [1993] 1 I.R. 39 is satisfied. This is because the respective functions of an appellate tribunal and a court conducting a judicial review of a tribunal's decision are completely different: an appeal is a de novo re-opening and reconsideration of the merits of the decision of the lower tribunal whereas judicial review is solely concerned with the process whereby the decision was reached and it is no part of the court's function to substitute its own view of the merits for that of the lower tribunal except where the O'Keeffe principles apply. However, this in turn is subject to the application of the second distinction above.
The second distinction
In R v. Immigration Appeal Tribunal, ex parte Amin [1992] Imm A.R. 367 at 374, Schiemann J (as he then was) stated that, in general:
"...adjudicators should indicated with some clarity in their decisions:
(1) what evidence they accept;
(2) what evidence they reject;
(3) whether there is any evidence as to which they cannot make up their mind whether or not they accept it;
(4) what, if any, evidence they regard as irrelevant".
In the decision of the Immigration Appeals Tribunal in Milan Horvath v. Secretary of State for the Home Department (United Nations High Commissioner for Refugees intervening) [1999] MR 7, the Tribunal, while acknowledging its power to overturn the conclusions of fact arrived at by adjudicators, reaffirmed its general reluctance to interfere with such findings whey they were dependent on the adjudicators' assessment of the credibility of a witness who had appeared before the special adjudicator. However, the Tribunal proceeded to hold that in certain circumstances it would be prepared to interfere with the findings by the special adjudicator, even in cases where the decision turned on adverse conclusions as to credibility. Giving the decision of the Tribunal, Judge Pearl stated at paragraph 17E:
"... It is our view that credibility findings can only really be made on the basis of a complete understanding of the entire picture. It is our view that one cannot assess a claim without placing that claim into the context of the background information of the country of origin. In other words, the probative value of the -evidence must be evaluated in the light of what is known about the conditions in the claimant's country of origin".
This passage was cited with approval in R v. Immigration Appeals Tribunal, ex parte Ahmed [1999] INLR 473. In that case, it was held that there was an absence of any relevant
general findings of fact in the decision at first instance and the absence of any attempt by the special adjudicator to consider the applicant's credibility in the context of general findings regarding human rights practices in the state of origin, which indicated that the special adjudicator had considered credibility in complete isolation from the general picture: it was held this failure constituted a reviewable error or law.
Conclusions
I take the view that the member has outlined the basis upon which he came to his conclusion as regards whether or not he believed the applicant and has complied with the test of sufficient particularity as laid down in R v. Immigration Appeal Tribunal ex-parte Amin 1992 1 Imm A. R. 367.
I am satisfied on the submissions of counsel for the respondent and the documentations as opened to me consisting of file no. 1113/1998 Tribunal Onesti Municipality arising from a public hearing on the 11th day of April, 1998 and a medical certificate dated the 29th day of September, 1998 from the Municipal Hospital Onesti and the applicant's handwritten interview notes at pages 6, 7 and 8 thereof that there was evidence available to the member to come to the conclusion that there was documentary evidence available which contradicted the applicants evidence in relation to his two periods of imprisonment.
I am not satisfied in the circumstances of this case on this particular ground that the applicant has satisfied the test and that he is entitled to leave to apply for judicial review. I am not satisfied that there are reasonable arguable or weighty grounds in respect of this aspect of the claim which relates to the Refugee Appeal Tribunal members adverse finding in relation to the applicant's credibility.
The central thrust of the applicant's remaining argument is that the Refugee Appeals Tribunal Member failed to apply a forward looking test in assessing whether the applicant had a well founded fear of persecution in Romania.
In this regard,. the Refugee Appeals Tribunal member quite clearly comes to the conclusion on the basis of evidence adduced before him that he was of the view that the applicants principal reason for coming to Ireland was that his family were already here. He says specifically that "the applicant stated that on his release from prison he had to leave the country because his family were in Ireland. He stated that for this reason he came to Ireland because he did not feel safe in Romania."
I cannot accept this argument against a background where the Refugee Appeals Tribunal member has specifically concluded that he is satisfied from the evidence adduced before him that the applicant's principal reason for coming to Ireland was that his family were already here.
The term well-founded fear of persecution contains a subjective and an objective element and in determining whether well-founded fear exists both elements must be taken into consideration.
The re-edited handbook on procedures and criteria for determining the refugee status under the 1951 Convention and the 1967 Protocol relating to the status of refugees as printed in January, 1992 deals with this aspect at paragraph 40 thereof wherein it is set out.
"40. An evaluation of the subjective element is inseparable from an assessment of the personality of the applicant since psychological reactions of different individuals may not be the same in identical conditions. One person may have strong political or religious convictions, the disregard of which would make his life intolerable. Another may have no such strong convictions. One person may make an impulsive decision to escape. Another may perfectly plan his departure."
And further at Article 41
"41. Due to the importance of the definition attaches to the subjective element an assessment of credibility is indispensable where the case is not sufficiently clear from the facts on record It will be necessary to take into account the personal and family background of the applicant his membership of a particular racial religious national social or political group his own interpretation of a situation and his personal experiences - in other words everything that may serve to indicate that the predominant motive for his application is fear. The fear must be reasonable. Exaggerated fear however may be well founded if in all the circumstances of the case such a state of mind can be regarded as justified."
And further at Article 42
"42. As regards the objective element it is necessary to evaluate the statements made by the applicant as the competent authorities that are called upon to determine refugee status are not required to pass judgment on conditions of the applicant's country of origin. The applicants statements cannot however be considered in the abstract and must be viewed- in the context of the relevant background situation. A knowledge of conditions in the applicant's country of origin - while not a primary objective - is an important element in assessing the applicant's credibility. In general the applicants fear should be considered well founded if he can establish to a reasonable degree that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition or would for the same reasons be intolerable if he returned there."
I am satisfied that in assessing the subjective and the objective elements, the issue of credibility is clearly a significant factor and in this particular applicant's case the Refugee Appeal Tribunals member has made a finding adverse to the applicant's credibility to the extent that he is not prepared to rely on his evidence. Furthermore, while I accept that there are two essential ingredients in considering the objective element namely that his continued stay in his country of origin has become intolerable to him or would for the same reasons be intolerable if he returned there, the Refugee Appeals Tribunal member has come to the conclusion that the applicant's principal reason for coming to Ireland was that his family were already here and that he was not satisfied that the applicant had been subjected to persecution for any reason contemplated by section 2 of the Refugee Act, 1996 (as amended).
I take the view accordingly that it follows from the Refugee Appeals Tribunal members decision that there is no evidence that he erred in law in his finding that the applicant had not been subjected to persecution for any reason contemplated by section 2 of the Refugee Act, 1996 as amended nor did he fail to apply a forward looking test in assessing whether the applicant had a well-founded fear of persecution in Romania.
The Refugee Appeals Tribunal member who had the benefit of being in a position to assess the evidence of the applicant which was given before him, states that he considered the documentary evidence furnished to the Tribunal on behalf of the applicant and proceeded to give reasons for his conclusions.
In these circumstances I decline to grant the applicant leave to apply for the reliefs as sought by way of judicial review and I dismiss the application.