Mon, Nov 10, 2008
K -v- Refugee Appeals Tribunal and Anor: High Court Judgment was delivered by Mr Justice McCarthy on July 31st 2008
Judgment
An asylum seeker from Ethiopia failed in his application to quash the decision of the Refugee Appeals Tribunal, upholding a decision of the Refugee Applications Commissioner, to deny him refugee status on the grounds that he did not face persecution in his country of origin.
Background
The applicant’s father was a member of the Oromo Liberation Front and had been arrested and imprisoned in Ethiopia. The applicant and his brother were also detained by Ethiopian police and threatened that they would share their father’s fate. Subsequently the applicant fled the country and reached Ireland, where he applied for asylum.
This was refused by the Refugee Applications Commissioner, whose decision was appealed to the Refugee Appeals Tribunal. The tribunal member upheld the original decision, referring, among other things, to the credibility of the applicant in relation to a number of matters, including his account of his and his brother’s arrest and release, doubts about his account of how he left Ethiopia, as the tribunal member stated he knew the border area with neighbouring Kenya did not have good roads, and the absence of any evidence that he would be persecuted if he returned.
In his application to the High Court, the applicant said the tribunal had taken irrelevant material into account when making his decision and added that he had given entirely consistent accounts of his arrest, torture and release after three days.
He said there was no evidence adduced of the state of the roads in the area and the tribunal member had regard to irrelevant material; the tribunal member invoked his personal knowledge of the area in impugning the applicant’s credibility as to how he fled the country, stating that the only international airport in Kenya was in Nairobi, 1,000 miles away, when there is an international airport in Mombasa from which the applicant could have flown.
He also said the tribunal failed to take into account the fact that the applicant only knew the Amharic language in questioning his ignorance of his itinerary; the conclusion that he did not face any threat of persecution did not take into account relevant material and the implications for him of his father’s arrest when he was a child, depriving him and his brother of his only parent and breached his rights under the European Convention on Human Rights.
Decision
Mr Justice McCarthy said it was submitted that a number of significant errors in the assessment of credibility arose, in particular manifest errors of fact. After reviewing the case law on the subject, he said that the decision must be read and taken as a whole.
Referring to the account the applicant gave of his arrest and release, he said the decision-maker was entitled to draw to his attention what he considered to be inconsistencies and to be influenced by what he conceived to be evasion or illegitimate denial.
While the tribunal member was wrong about the airport, it was one of a number of issues which influenced him on the credibility of the applicant and was severable from the others.
However, if he was wrong on this, he said that want of credibility was not the basis for the tribunal member’s conclusion, quoting from the decision: “I am not satisfied that the . . . inconsistencies are material and/or significant to his claim for asylum.”
Therefore the decision could not be impugned on any one of these grounds.
This left the assertion by the applicant that he risked being killed if returned to Ethiopia. Mr Justice McCarthy pointed out that the test was a forward-looking, not a backward-looking one.
“It seems to me that of most significance is the fact that, accepting the applicant’s version of events, one has, at most, a once-off incident and that element of persistent or constant wrong-doing does not exist.”
He said that reference had been made to the legitimacy of the actions of the Ethiopian police.
“The country of origin information indicates that the Oromo Liberation Front . . . is an organisation in armed opposition to the government which, inter alia, campaigns for boycotts of elections.” However, the tribunal did not address this issue and he did not consider it in adjudicating on the matter.
The full judgment is on www.courts.ie
Mel Christle SC and Patricia Brazil, instructed by Colm Stanley, appeared for the applicant; Anthony Moore, instructed by the Chief State Solicitor, appeared for the respondent.