Sekou Camara (applicant) v Minister for Justice, Equality and Law Reform, the Refugee Appeals Authority, Ireland and the Attorney General (respondents).
Judicial Review - Irrationality - Refugee - Whether a "well-founded fear of being persecuted" - Credibility of applicant relevant - Whether second respondent having material before it which would entitle it to refuse application - Refugee Act 1996, section 2.
The High Court (Mr Justice Kelly); judgment delivered 26 July 2000.
The court should be slow to interfere with the decision of a specialist statutory tribunal by means of judicial review on grounds of irrationality. The core concept in the definition of "refugee" was the person's "well-founded fear of being persecuted", and this involved an assessment of the applicant's credibility. Accordingly, where there were various inconsistencies in the statements of the applicant, the Refugee Appeals Authority had material before it which entitled it to refuse the application for refugee status.
Mr Justice Kelly so held in refusing to grant an order of certiorari quashing the decision of the Refugee Appeals Authority.
John Rogers SC and Peter Ward BL for the applicant; Diarmuid McGuinness SC and Robert Barron BL for the respondent.
Mr Justice Kelly said that the applicant was a Guinean citizen, who had arrived in Ireland in March 1997, and who had applied for refugee status. On 11 September 1998 he was interviewed by an officer of the first respondent. The interview was recorded in writing in a question and answer format.
On foot of the interview, the interviewing officer formed the opinion that the applicant did not have a well founded fear of persecution and was not a refugee. He recommended that the claim for refugee status be refused, and the minister accepted that recommendation. On appeal, the second respondent was of the view that the applicant had not made out a sufficient case and recommended that his appeal should not be allowed. The applicant now sought judicial review of the decision of the minister and of the recommendation of the Refugee Appeals Authority.
Mr Justice Kelly said that the primary ground on which the application was made were, first, that the purported recommendation of the second respondent, on which the first respondent had relied in making the decision to refuse the asylum application, was unreasonable and/or irrational and was thereby ultra vires.
Mr Justice Kelly said that the test of irrationality or unreasonableness was set out in the decisions of the Supreme Court in The State (Keegan) v The Stardust Victim's Compensation Tribunal [1986] IR 642 and O'Keeffe v An Bord Pleanala [1993] 1 IR 39. In the former case, Mr Justice Henchy had set out a number of circumstances in which a decision could be quashed on these grounds. They were: "(1) It is fundamentally at variance with reason and common sense. (2) It is indefensible for being in the teeth of plain reason and common sense. (3) Because the court is satisfied that the decision-maker has breached his obligation whereby he `must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision'." The then Chief Justice, Mr Justice Finlay, had said in O'Keeffe that he was satisfied that these three different methods of expressing the circumstances under which a court could intervene were not in any way inconsistent with each other, but complemented each other and constituted a comprehensive description of the circumstances under which a court could intervene on the basis of unreasonableness or irrationality, and that the circumstances under which the court could intervene on the basis of irrationality are limited and rare.
Mr Justice Kelly also referred to the decisions of the Supreme Court in Henry Denny and Sons (Ireland) Limited v Minister for Social Welfare [1998] 1 IR 34, where the then Chief Justice, Mr Justice Hamilton, stated that the courts should be slow to interfere with the decisions of expert administrative tribunals and that it should be recognised that where tribunals have been given statutory tasks to perform and exercise their functions with a high degree of expertise and provide coherent and balanced judgments on the evidence and arguments heard by them it should not be necessary for the courts to review their decisions by way of appeal or judicial review. Mr Justice Kelly said that the authorities demonstrated the existence of an approach known as "curial deference" to decisions of specialist administrative bodies in the context of judicial review proceedings. The second respondent was a body with particular experience and expertise, dealing on a daily basis with the assessment of claims for refugee status.
Turning to the question which had been determined by the second respondent, Mr Justice Kelly referred to the Geneva Convention of 1951 and the 1967 Protocol thereto, which together define a refugee as any person who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it". That definition is reflected in section 2 of the Refugee Act 1996.
Mr Justice Kelly said that, according to paragraph 37 of the United Nations High Commission on Refugee Handbook entitled "Procedures and Criteria for Determining Refugee Status", the phrase "well founded fear of being persecuted" was the key phrase of the definition. The handbook also stated that since fear was subjective, the determination of refugee status would therefore primarily require an evaluation of the applicant's statements rather than a judgment on the situation prevailing in his country of origin. Paragraph 38 states that to the element of fear was added the qualification "well-founded". That implied that it was not only the frame of mind of the person concerned that determined his refugee status, but that this frame of mind must be supported by an objective situation.
Paragraph 41 states that due to the importance that the definition attached to the subjective element, and assessment of credibility was indispensable where the case was not sufficiently clear from the facts on record. Paragraph 196 states that, while the burden of proof in principles rested on the applicant, cases in which an applicant can provide evidence of all of his statements would be the exception rather than the rule. Thus, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. In cases where the necessary evidence could not be procured, if the applicant's account appeared credible, he should, unless there were good reasons to the contrary, be given the benefit of the doubt.
At paragraph 205 of the handbook, it is stated that an examiner should assess the applicant's credibility. Mr Justice Kelly said that from the foregoing it was clear that an applicant's credibility was always a relevant issue which fell to be assessed by the examiner.
Mr Justice Kelly said that the applicant was a native of Guinea and had joined the Guinean People's Rally (RGP), an opposition party, in 1990. In 1996, soldiers discovered that he was carrying a RPG identity card, and accused him of being a spy for the RPG. The applicant admits that he worked as a spy. The applicant claimed that he was arrested, beaten and tortured. He also claimed that his parents were arrested, beaten and tortured and died from the effects of this ill-treatment. He said that he had been imprisoned, and had been sentenced to life imprisonment by a court. The applicant had various scars and cigarette burn marks on his arms and legs. The applicant claimed that the RPG were able to help him to escape from prison by means of bribes. He then came to Ireland on a false passport.
At the hearing before the Refugee Appeals Authority, the minister submitted that there were numerous inconsistencies between the evidence given at the appeal and the story related by the applicant in the interview which had taken place in September 1998. They also submitted that there were inconsistencies between the description of prison life given by the applicant and the depiction of prison life in Guinea portrayed in both United Nations and US State Department Reports. The applicant submitted that his description of political life for opposition members in Guinea was consistent with the independent documentary evidence and that that was attested to by the appalling nature of the scarring on the applicant's body.
Mr Justice Kelly said that there was no doubt but that the Authority had posed the correct question in that he had said that the applicant would have to show that he had a well founded fear of persecution for a Convention reason. In making his decision, he found that the applicant did have "quite appalling scars to his upper body which is consistent with the evidence he gave in relation to the alleged torture". However, he had found other aspects of the applicant's claim to be lacking in credibility.
Mr Justice Kelly said that he did not propose to rehearse in detail the various elements of the applicant's account which the Authority had found to be lacking in credibility. If the applicant was to succeed it was necessary that he should establish to his satisfaction that the Authority did not have any relevant material before it which could support its decision.
Mr Justice Kelly said that the issue of the applicant's credibility was undoubtedly a relevant matter to be considered and there was material before the Authority which could support and justify a decision that the applicant's claim was lacking in credibility. For example, evidence as to the conditions in prison, contrary to the applicant's evidence to the Authority, suggested a comparatively mild regime. There were numbers other inconsistencies such as the discrepancies between the amount paid to effect the escape, the two versions of how a passport was acquired, and numerous other items of information given by the applicant which could justify a finding such as was made.
Mr Justice Kelly said that he had concluded that the applicant had failed to discharge the onus of proof which rested on him, and he dismissed the application.
Solicitors: MacGeehin & Toale (Dublin) for the applicant; the Chief State Solicitor for the respondents.
