[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Carciu v. Minister for Justice, Equality and Law Reform & Anor [2003] IEHC 41 (4 July 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/41.html Cite as: [2003] IEHC 41

[New search] [Printable RTF version] [Help]

 


THE HIGH COURT

DUBLIN

No. 2003/148 JR

VIOREL CARCIU

APPLICANT

AND

THE MINISTER FOR JUSTICE,

EQUALITY AND LAW REFORM

AND THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

EX-TEMPORE JUDGMENT DELIVERED BY

MS. JUSTICE FINLAY GEOGHEGAN

ON FRIDAY, 4TH JULY 2003

-2-

This is an application for leave-to issue judicial review against a recommendation of the Refugee Appeals Tribunal which is contained in a decision of the 5th of February, 2003.

The applicant is obliged to establish that there are substantial grounds for alleging the invalidity of the decision having regard to the provisions of Section 5 of the Illegal Immigrants (Trafficking) Act 2000. That requires the applicant to establish that there are reasonable, arguable and weighty grounds for asserting the invalidity of the decision.

This is not an application where I was asked to determine in the event that I found that there were substantial grounds within the meaning of Section 5 the substantive issue.

I would like to commence by making two observations in relation to the decision which are relevant to the claims which are made on this application for leave.

The claim for declaration of refugee status at the time it came before the tribunal was based on two grounds. There was an allegation of persecution on grounds of religion or religious belief, and secondly an allegation of persecution grounded on political opinion.

-3-

The member of the tribunal deals with the claim based on religious ground in one single paragraph at the top of page six of his decision where he commences by stating:

"Insofar as the applicant claimed he was persecuted as a consequence of his religion, there is evidence to support this."

He then goes on in fact to find that the claim is not well grounded in the sense that there is not objective evidence to support the subjective fear, and therefore the claim is not well founded.

However, in considering that paragraph, counsel for the applicant has laid stress upon the fact, and indeed it hasn't been disputed, that in respect of this aspect of the claim the tribunal member appears to have accepted as credible the evidence which has been offered by the applicant in support of the allegation that he was persecuted as a consequence of his religion. There doesn't seem to be any other explanation for the conclusion which is stated therein, that there is evidence to support this referring as he does to the alleged persecution as a consequence of religion.

Therefore notwithstanding the later conclusions in the decision, I must treat this decision as a decision in which it appears from the content of the

-4-

decision itself that the tribunal member has not considered the applicant's story to be wholly in credible.

The second observation that I would like to make and which is relevant to the grounds which are raised is the conclusion expressed by the tribunal member in the next paragraph on page six of his decision, where he states, in relation to the claim of a well-founded fear of persecution for political opinion, that if he, the applicant, is to be believed, then "the imposition of a three year prison sentence for espousing a nonviolent political opinion would amount to persecution."

The tribunal member was therefore considering, as he goes on to consider, the credibility of the story told him and the claim made by an applicant who if he was to be believed, the tribunal member has concluded that what he refers to as a "three year prison sentence for espousing a nonviolent political opinion" would amount to persecution. And that statement in turn I think has to be considered by reference to the final paragraph on page five where the tribunal member seems to have accepted as a fact proved before him that the applicant failed to answer a summons to attend at court and was sentenced to three years in prison. He also states that the applicant knew that this would be the result as he

-5-

accepted that he was in breach of the law.

It is true to say that the tribunal member does not refer expressly to the content of that summons, but it does appear that I must consider the decision as based upon the fact that the tribunal member has accepted that the applicant had a summons to attend at court, and by reason of the fact that he didn't attend was in his absence sentenced to a three year prison. Further that he has concluded that the. imposition of a three year prison sentence for espousing a nonviolent political opinion would amount to persecution.

In relation to the claim by the applicant, it is acknowledged and admitted that the applicant was not truthful at two previous stages prior to the hearing on appeal before the tribunal member. These are clearly set out.

He firstly was not truthful when he made his original claim for asylum in that he did not make any reference to the claim which he subsequently sought to make based on political opinion.

Secondly, it is accepted and acknowledged that he was not truthful at interview when he gave false information as to his wife's whereabouts at the date of the interview.

-6-

The obligations of a decision maker, and in this instance a member of the tribunal in relation to the assessment of credibility of an applicant who has admittedly made false claims, or given an untrue statement at an earlier stage in the process were considered by me in a judgment which I gave in a case of Bujari on the 7th of May, 2003. The principle as stated in that case, which still appears to me to be the position is that the assessment of the credibility of the applicant is a matter for the examiner, which on appeal is a member of the tribunal, and it is not a matter for this court on judicial review. However, the process by which such credibility is assessed does appear to be a matter within the remit of this court under judicial review.

In relation to that process I referred, and it still appears to me to be relevant to one of the grounds of this claim, to paragraph 199 of the UNHCR handbook which states, "while an initial interview would normally suffice to bring an applicant's story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview and find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status, and it is the examiner's responsibility to evaluate such

-7-

statements in the light of all the circumstances of the case."

In this case the examiner has approached the matter in accordance with the conclusion which I reached in Bujari; namely that there is an obligation on the examiner to consider the explanations which are offered as to the reasons for which the applicant may have given an untrue account at an earlier stage. But the grounds sought to be relied on in this application raise the question as to whether or not the examiner has evaluated the credibility of the applicant's story in the light of all the circumstances of the case.

The grounds which are advanced in the statement of grounds are put in what I might describe as classical judicial review grounds, but the particular grounds advanced by counsel on behalf of the applicant which clearly fell within those grounds, I think may be summarised as follows:

Firstly, that the member of the tribunal took into account irrelevant material in reaching his decision. And in particular, I think it is fair to say that at the end of the hearing that was confined to what are accepted as two misstatements of fact in his assessment of the credibility of the applicant in relation to the material and significant

-8-

inconsistencies which he perceived in the application and which he took the view had not been explained in a satisfactory manner.

Secondly, it was asserted that he did not take into account all the relevant matters, and in particular, he didn't take into account the fact that he had found that part of the applicant's story upon which the alleged persecution for religious reasons was to be credible in respect to that.

And thirdly, it was alleged that there was an obligation to give reasons for his conclusion that certain reasons offered by the applicant for his failure to give at the earliest stage what is considered to be the real reason for his decision to seek asylum, namely based on political opinion were not plausible.

It is accepted on behalf of the respondents that in the three matters which the member of the tribunal sets out at page five of his decision as to material and significant inconsistencies, there are two errors of fact. Firstly, in paragraph one the tribunal member stated that the applicant misrepresented the location of his wife when he applied for asylum and at interview. In fact, it is accepted and is common case-that he did not misrepresent the location of his wife when he applied for asylum, she was still in

-9-

Romania at that date, but he did so at interview.

And secondly, at paragraph three it is stated that the applicant stated that his business and his car were destroyed by persons who were jealous of his success, and also objected to his religious beliefs. It was accepted that probably was a reference to the response at question 84 of the initial asylum questionnaire, and it is accepted that there was in that no reference to his car.

It seems to me that this latter error of fact may fall into a category of fact which this court would not find to be sufficient to ground a claim of invalidity based upon an incorrect fact, but it does appear to me that the first error of fact made is such that I am satisfied that at a leave stage the applicant has established substantial grounds for asserting the invalidity. And I reach that conclusion for the following reasons:

It seems to me that whether one puts it as a matter of fair procedures or a failure to take into account relevant material, or indeed as being an allegation that it is an unreasonable decision that if a decision maker is assessing the credibility of an applicant and that decision is based on an incorrect, undisputed fact, that unless it can be established that that incorrect fact is clearly so insignificant

-10-

that it was not material to the decision maker, that there is a potential breach of an obligation to observe fair procedures, or it may be asserted that the decision is unreasonable or irrational as based upon erroneous fact.

It doesn't appear to me that where one is assessing as was done in this case, in a context where the applicant had been found in respect of part of his story to be credible, that this court could safely form the view that the error, which has been made at paragraph one, is such that it was not material to the decision as to whether or not that part of the applicant's story which related to his claim, based on political opinion, was not credible. It is not possible in the light of the way in which the decision is presented for this court to determine what would or would not tip the balance. And I say that particularly having regard to the manner in which the conclusion is formed in the penultimate paragraph on page six, which is that "having regard to the above" which seems to refer to the previous three paragraphs, and to what the tribunal regards as significant or material inconsistencies, which it was accepted by Miss Moorhead can only refer to what is set out in paragraphs one, two and three on the previous page that the tribunal was not satisfied that the applicant had given a truthful account. And I think when one looks at the previous three

-11-

paragraphs they are in some respects paragraphs which would favour the applicant, and therefore it is the significant material inconsistencies which were held against the applicant and the member of the tribunal has clearly been involved-in a balancing exercise. And it seems to me that at the leave stage the applicant has made out substantial grounds on that basis. And therefore I propose granting leave.

I would add that it does not appear to me that there is an obligation to give reasons such as is contended for by the applicant. Failure to give reasons is not raised as a separate ground in the statement of grounds. And insofar as the statement of ground been drafted in more general form, it doesn't seem to me to be necessary to distinguish now on the different factual basis that it has been put forward at the leave stage.

I will grant leave to seek the reliefs at paragraphs A, F and G on the grounds set out at paragraph four Roman numeral one to four inclusive, and I will reserve the costs.

There will have to be a Notice of Motion now issued seeking substantive relief and that should be issued returnable for the 23rd of July, and I will give the respondents until the 19th of July to serve a Statement of Opposition.

END OF JUDGMENT