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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A.P. (Albania) -v- Refugee Appeals Tribunal [2014] IEHC 493 (02 October 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H493.html Cite as: [2014] IEHC 493 |
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Judgment Title: A.P. [Albania] -v- Refugee Appeals Tribunal Neutral Citation: [2014] IEHC 493 High Court Record Number: 2010 890 JR Date of Delivery: 02/10/2014 Court: High Court Composition of Court: Judgment by: Barr J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 493 THE HIGH COURT JUDICIAL REVIEW [2010 No. 890 J.R.] BETWEEN A.P. (ALBANIA) APPLICANT AND
REFUGEE APPEALS TRIBUNAL RESPONDENT AND
MINISTER FOR JUSTICE AND LAW REFORM NOTICE PARTY JUDGMENT of Mr. Justice Barr delivered the 2nd day of October, 2014 Background 2. The applicant arrived in Ireland on 15th November, 2007. He started his trip from the Vlore City in Albania. He got into a large truck. The truck went by ferry to another country. The applicant thinks that it went to Italy and then into France. In France, he got out of the truck for two hours. He then switched to another truck and was taken by ferry to Ireland. He applied for asylum immediately upon his arrival in the State. 3. The applicant's asylum claim was unsuccessful at first instance before the Refugee Applications Commissioner. He appealed to the Refugee Appeals Tribunal (the RAT) but his appeal was also unsuccessful. The applicant seeks to challenge the decision of the RAT in these proceedings. The applicant has a number of complaints about the proceedings before the RAT and also in relation to the content of its decision. Failure to grant an adjournment to remedy interpretation difficulties
6. Counsel and I had serious concerns that there could be a serious problem in interpreting the applicant's evidence and counsel sought a short adjournment for jive minutes so that a discussion could take place among the applicant, the interpreter, counsel and me. The Tribunal Member granted this short five minute adjournment. Accordingly, the applicant, the interpreter, counsel and I had a discussion outside the hearing room. The interpreter confirmed that there was a difference of dialects with some words being different. The applicant expressed his concern that he could not fully understand the interpreter. Accordingly, when the hearing resumed, counsel renewed the application for an adjournment. The interpreter told the Tribunal that she could understand the applicant's dialect. The interpreter was asked whether she was satisfied she could give a true interpretation and she replied 'not really' and that she might not be able to give a true interpretation of the applicant's evidence. 7. The Tribunal Member stated that she was not impressed with the application. The Tribunal Member stated that this was 'a very simple story' and that the applicant speaks some English. Counsel stated to the Tribunal that the applicant does not have a great grasp of English and that his standard of English was rudimentary at best. The Tribunal asked counsel how he took instructions before the hearing. Counsel indicated to the Tribunal that he had difficulty speaking with the applicant in English immediately prior to the hearing but that I had previously taken instructions from the applicant with the assistance of a person who could interpret between the applicant and me. 8. The Tribunal Member then again asked the interpreter was she saying she could not give a true interpretation. The interpreter this time replied that she could. I consider that from the tone of voice used by the Tribunal Member, the attitude of the Tribunal Member and the manner in which the Tribunal Member asked this question that at this stage the interpreter felt compelled to answer the question in the way that she did, lest a different answer be taken as a slur on her competence by the Tribunal. The applicant then clearly stated to the Tribunal that he could not understand the interpreter completely. 9. The presenting officer asked the interpreter whether there were very extreme divergences so that if, for example, the applicant said the word 'car' in his dialect whether she would interpret that as 'dinosaur' and whether there such monstrous differences between the two dialects. The interpreter of course confirmed that there were differences but that they were not as extreme as the example posited. 10. The Tribunal Member stated that she was refusing the application for an adjournment and that the hearing would go on. The Tribunal Member stated that she did not want to take the applicant short but that a difference in accents and some words were not enough. 11. Counsel stated to the Tribunal that the applicant had clearly stated he did not understand the interpreter but, there were problems and that some words were different. Counsel having spoken with me and taking instructions informed the Tribunal that we would proceed under protest. 12. The Tribunal then stated that the hearing was proceeding on the basis that there was a difference of accents only and not a difference of dialects. Counsel stated that it was a difference of dialects. The Tribunal stated that an interpreter with a specific dialect had not been requested. The Tribunal stated that if the applicant had a difficulty with the interpretation 'we can go slowly or it can be repeated'. 13. At all stages of the consideration by the Tribunal of the applications for an adjournment, the Tribunal seemed to disbelieve that there could be any difference of dialects in the Albanian language spoken within the territory of Albania. The Tribunal seemed to believe that there could not possibly be a difference of dialects within the Albanian language spoken in Albania. 14. Over the course of the hearing when the applicant was giving his oral evidence several problems with the interpretation manifested themselves. When the applicant was asked through the interpreter when did he find out the name of the person killed by his father and the name of that person 's father, the interpreter translated the applicant's answer as 'after the court'. Counsel and I both knew from having taken instructions from the applicant that he meant after his interview with the Refugee Applications Commissioner. When counsel, through the interpreter, sought to clarify with the applicant what was meant by 'court'. There then followed a discussion between the interpreter and the applicant. Such discussion should not take place during a hearing. The interpreter is expected to interpret everything spoken by the applicant and there should be no un-translated discussion between them and the applicant. The interpreter then translated the answer of the applicant stating 'when we went to the court they asked me the name of the person - dead person so I asked my cousin'. 15. Counsel again asked the applicant through the interpreter what did he mean by 'court' in an attempt to clarify the word used by the interpreter. The Tribunal unaware of the intended evidence, and mistakenly assuming that some actual 'court' must have been intended, then asked was the applicant's father prosecuted as a result of the accident. The applicant then tried to answer in English. Counsel stated to the Tribunal that the applicant was not able to express himself properly in English. The Tribunal asked the applicant how long had he been in Ireland and the applicant stated 'two years'. The Tribunal Member asserted to the applicant that when she asked him a question he could understand her before the question was translated into English. The applicant stated in English that some questions he could not understand. The applicant explained as best he could in English that he could not speak English especially when he was nervous as he was at the hearing. The applicant indicated as best he could that he did not feel fully comfortable giving his evidence in English. The Tribunal stated to the applicant that she was 'going to pay you the compliments that your English was good'. The applicant stated that he could understand some questions. 16. Counsel then renewed the application for an adjournment. Counsel reiterated that the applicant was more comfortable giving evidence in Albanian. The Tribunal stated that an adjournment was 'not an option unless the applicant is completely prejudiced'. The Tribunal then alluded that there might be some sort of ulterior motive for an adjournment. Counsel stated that there was no ulterior motive for an adjournment. I was surprised and disappointed when the Tribunal stated that there might be an ulterior motive for the adjournment request. If anything, an adjournment would have inconvenienced us, when we arrived at the Tribunal fully prepared to run the case. 17. Counsel stated that it was in everyone's interest that the hearing proceed fairly. Counsel stated that we felt there was a risk of prejudice and that we were compelled to request an adjournment despite inconvenience to us. I was then somewhat surprised and taken aback when the Tribunal Member responded: 'contrivance is not a reason'. Counsel then stated that we were not satisfied that there would not be problems with the interpreter. The Tribunal Member questioned whether counsel was alleging that the interpreter was incompetent and it seemed as if the Tribunal could not believe that there could be any problem with dialects. Counsel stated that no allegation was being made against the interpreter but that we were not satisfied that with the difference of dialect the interpretation would be fully accurate. 18. The Tribunal then rejected the adjournment application and stated that the word issue was 'court' and that the Tribunal had no objection to the applicant being led somewhat and that some latitude would be allowed regarding leading questions. Counsel then asked the applicant through the interpreter: 'when you say 'court' do you mean that you had your interview with the Refugee Applications Commissioner?'. There then followed another discussion between the interpreter and the applicant. The interpreter then asked the following answer for the applicant 'Yes. That's what I call what we do here - court'. 19. Shortly after that exchange, counsel asked the applicant had he previously asked his father for the name of the person killed prior to when he spoke with his cousin by phone. The applicant stated in somewhat broken English 'he wouldn't give full. If he give he know which one kill my father. lf I don't know the name the person then I cannot get revenge'. The interpreter then somewhat bizarrely decided to translate the applicant's English back into Albanian for him. The applicant then began to speak in English again but it was clear he was having difficulty fully explaining himself The Tribunal Member suggested that the applicant could answer the next question in Albanian through the interpreter. 20. At this particular point, counsel and I were quite concerned that the Tribunal might fail to grasp the exact explanation being given by the applicant for why his father refused to give the applicant the name of the person killed and the name of the family. This was a central aspect of the appeal, given that the lack of knowledge held by the applicant in that respect was a fundamental reason for why the Commissioner had rejected his credibility and had recommended he not be declared a refugee. The applicant had previously instructed counsel and myself that the reason his father had refused to give the applicant a name of the person killed or the name of the family, was because the father feared that if he was killed in the blood feud, the applicant would avenge his death and continue the blood feud. Counsel and !feared that the interpretation difficulty could lead to this vital evidence not being properly given to the Tribunal. 21. In the circumstances, having regard to the severe interpretation difficulty and since the Tribunal Member had clearly stated that she would allow some latitude towards leading questions, counsel asked the applicant whether his father was reluctant to give him the name in case that the blood feud was continued by the applicant taking revenge in case his father was killed. To this question which was interpreted for the applicant through the interpreter replied yes that his father was scared that he would continue the blood feud The Tribunal then indicated that it was 'clear to me in English, I have to say' a reference to the broken English evidence given by the applicant to which I have already referred No further application for an adjournment was made on the applicant's behalf as the Tribunal had already rejected firmly the previous adjournment application more than once. 22. Later in the hearing during the course of cross examination by the Presenting Officer, the applicant stated that his father knew that by telling the applicant the names the applicant would take revenge if something happened to his father. He stated that his father knew the applicant would have taken revenge. "
Nor can I take as decisive the subsequent affirmation by the applicant that he understood the proceedings. No doubt he was able to follow in a general way, but the very objection he raised at the beginning of the third session, in the face of previous similar avowals that he understood, must stand as a caution. Moreover, the issue is not only whether the applicant understood. It is also whether he could adequately express himself through the interpreter. This factor assumes special importance in light of the reliance of the panel on the applicant's credibility in arriving at its conclusion. It was the 'contradictions' in his evidence that caused the panel (Case at p. 47) to question his claim to have a well founded fear of persecution based on his particular social group. Taking the issue of the competence of the interpreter in its total context, I must conclude that the applicant did not receive a fair hearing."
25. From a thorough analysis of these authorities, I have drawn the following general principles which, in my view, equally are applicable in this jurisdiction:- a. The right to understand and be understood is a minimal requirement of fair procedures. It is necessary for an applicant to be given the opportunity to put his or her case in as full a manner as is possible; where possible, applicants should have the same opportunity to understand and be understood as if they were conversant in English. b. There is, however, no absolute obligation for ORAC to provide an interpreter who speaks a language that is the applicant's mother-tongue, a language that the applicant speaks fluently or with a maximum of ease, or a language of his of her choice. c. The true benchmark is whether the applicant has sufficient proficiency in the language of the interpreter. The assessment of proficiency will include consideration of whether the applicant is capable of following the interview, making out his or her claim, conversing with some fluency, and making known any difficulties that he or she might have. d Account should be taken of whether the applicant would be prejudiced or disadvantaged by proceeding in the language of the interpreter. e. The right to interpreter assistance may be denied if there is "cogent and compelling evidence" that an accused's request for an interpreter is not made in good faith, but rather for an oblique motive (R v Tran [1994] 2 SCR 951). f It is not open to an asylum seeker to refuse to be interviewed in his or her first language. g. Account must be taken of the fact that there may be instances where the limited resources of a small country such as Ireland are unable to provide an interpreter in the first language of every asylum seeker; in such small countries, it is often the case that there is only a limited pool of competent, experienced interpreters. 26. This list of principles is not exhaustive and must be viewed as a whole; furthermore, the application thereof will depend on the circumstances of each case. 27. In my view, the appropriate person to make the assessment of an applicant's proficiency is the ORAC interviewer; this is not a decision that is to be made by the applicant or his legal advisers, although representations may, of course, be made with regard to proficiency. "
9. In the course of its decision, the RAT found as follows in relation to the applicant's lack of knowledge of the name of the boy's family:-
He suggested that his father was afraid to give him the information lest the applicant might seek revenge. This is absolutely implausible. " 11. It was submitted by the applicant that the Tribunal placed reliance on a fundamental error of fact in the credibility assessment, in rejecting the applicant's explanation as to why his father did not tell him the name of the other family involved in the blood feud. 12. I am satisfied that the RAT erred in not allowing the applicant have the adjournment requested so as to procure the services of an interpreter who spoke the same dialect of Albanian as the applicant. This was necessary in order to enable the applicant to understand what was going on and to make himself properly understood. This was a fundamental element in the right to fair procedures enjoyed by the applicant. 13. I am also satisfied that there was an error of fact on the part of the RAT in concluding that the applicant had said that his father would not tell him the name of the other family, lest the applicant would go immediately and try to carry out a revenge killing against them. I am satisfied from Ms. Bartels' evidence that what the applicant meant was that his father would not tell him the name so that if his father was killed the applicant would not then go and carry out a revenge killing. This was a significant error of fact on the part of the Tribunal. It appeared to be an important element in the finding by the Tribunal that the applicant was not credible. 14. In the circumstances, I will grant certiorari of the decision of the RAT dated 14th May, 2010 and notified to the applicant on 9th or 10th June, 2010. Error concerning the birth certificate
17. The applicant submits that his birth certificate is, as a matter of law, an identity document. The applicant submits that the Tribunal failed to accept it as such for the purpose of making its decision. Furthermore, the Tribunal identified the lack of identity documents as "particularly pertinent" to his adjudication and it was the first reason listed by the Tribunal as warranting a rejection of credibility. 18. The applicant referred to the decision in A.M. v. Refugee Appeals Tribunal [2008] IEHC 171, where it was held that what purported to be the applicant's hezb-iIsalami membership card was an identity card and should have been treated as such by the Tribunal. 19. The applicant submitted that in its decision, the Tribunal made an error of law, a material error of fact and failed to consider relevant evidence in the form of the birth certificate. It was submitted that in finding that the applicant had not provided a reasonable explanation for the absence of identity documents and in relying on this finding to reject his credibility, the Tribunal made an error of law and of fact. 20. The applicant also complains that the RAT did not consider the birth certificate because it had not been translated into English. The applicant submits that the correct position is that the Tribunal was under a duty to have the birth certificate translated into English so that it could be adequately and meaningfully considered by it. 21. The respondent submitted that the applicant had been aware from his questionnaire and from his interview that identity documents were particularly relevant. In his interview, he had stated "I will have them sent by post". It was submitted that the Tribunal Member was entitled to conclude that the applicant did not provide a reasonable explanation for the absence of these documents. 22. In the course of argument, the applicant referred to the decision in T.M. v. Minister for Justice [2007] 4 I.R. 553. In that case, the High Court held that the Tribunal had determined an appeal in breach of s. 16(6)(e) of the Refugee Act 1996, as amended, and in breach of fair procedures by failing to translate and to consider certain documents relied on by the applicant in support of his asylum application. The court held that the appeal had therefore not been decided in accordance with law, and granted certiorari of the decision. The court relied on s. 16(6)(e) of the 1996 Act rather than s. 16(6)(d) as these documents had been furnished to ORAC rather than produced at the oral hearing before the Tribunal, but the applicant submitted that the principle was the same and that the facts of that case are analogous to what happened in the instant case concerning the birth certificate. They submitted that it was apparent from the judgment in T.M. v. Minister for Justice that there was a duty on the Tribunal to translate documents submitted by the applicant, where those documents are identified as significant. They submitted that the birth certificate in this case was significant as it was an identity document and the Tribunal expressly relied on the absence of identity documents as a "particularly pertinent" factor calling for a rejection of credibility. 23. I am satisfied that the Tribunal Member was entitled to draw an adverse inference from the fact that the applicant produced an un-translated copy of his birth certificate at the hearing. The decision maker was, in my view, entitled to come to the conclusion that she did in relation to the identity documentation. In his interview held on 19th March, 2008, the applicant had stated that he would get "them" (meaning the identity documents) sent on by post. It was only at the hearing on 6th May, 2010, that he produced an un-translated copy of his birth certificate. In these circumstances, the comment of the RAT in relation to the late production of the document, was something that she was entitled to remark upon. View of the Tribunal that the dispute was not a blood feud 25. The applicant further submits that the Tribunal acted in breach of fair procedures by failing to draw the attention of the applicant and his legal advisers to its view that the dispute was not one which could be characterised as a blood feud at all. In her affidavit, Ms. Bartels has stated that had this view been drawn to the attention of the applicant's legal team, detailed legal submissions would have been made addressing this point and explaining exactly how the dispute should be characterised as a blood feud. The applicant further submitted that if a matter is going to be of significance to a Tribunal decision, that matter should be drawn to the applicant's attention and the applicant should be given an opportunity to address it. 26. The applicant cited the decision of Finlay Geoghegan J. in Olatunji v. Refugee Appeals Tribunal [2006] IEHC 113, where the judge accepted the statement of law as set down by Clarke 1. in Idiakheua v. Minister for Justice, Equality and Law Reform & Anor (Unreported, High Court, Clarke J., 10th May, 2005), in which he considered the requirement on a member of the RAT to put matters of concern and/or perceived discrepancy to an applicant and give them an opportunity of dealing with them. In that decision, he stated at p. 9-10:-
This remains the case whether the issue is one concerning facts given in evidence by the applicant, questions concerning country of origin information which might be addressed either by the applicant or by the applicant's advisors. In setting out the above I would wish to make clear that the obligation to fairly draw the attention of the applicant or the applicant's advisors to issues which may be of concern to the Tribunal arises only in respect of matters which are of substance and significance in relation to the Tribunal's determination. "
Failure to resolve complaint in country information regarding State protection 30. The applicant submitted that while the Tribunal was entitled in principle to select the relevant COI, it could not ignore such significant COI which tended to support the applicant's arguments, without affording a reasoned opinion for why that body of information was not being accepted. 31. In response, the respondent argued that the consideration of the COI is a matter for the decision maker. In support of their argument, they referred to the decision of McDermott J. in R.P. v. Minister for Justice, Equality and Law Reform 2014 IEHC 125, where the judge stated as follows:-
42. A further claim is made of a more general nature that the respondent failed to consider the country of origin information adequately and, in particular, failed to have proper regard to those aspects that favoured the applicant's case. I am satisfied that there is no basis for this submission. It is a matter entirely for the decision maker to consider the country of origin information available and to assess it appropriately. In this case there is nothing to suggest that the decision maker arbitrarily preferred one piece of country or origin information over another and, indeed, there is no major conflict in all of the material submitted as to the incremental if slow improvements in the functioning of the police and judiciary and other arms of the Albanian State since in or about 2001." Error regarding brother's date of birth 35. The error is referred to in para. 1(f) of the Tribunal decision. This was dealing with the issue as to whether his mother had sought police protection on behalf of the family. In his evidence, he had stated that his younger brother was under 18 years of age and for that reason it was the applicant who was primarily at risk from the revenge attack. In the Tribunal decision, it was noted that in the questionnaire, the applicant had given his brother's date of birth being 1982 which would make his brother at least 25 years of age at the time of the accident in March 2007. The Tribunal Member continued: "if this date of birth is correct, then, it is materially inconsistent with what the applicant purports to state". The applicant submits that this error of fact significantly infected the Tribunal's assessment of credibility and thus, in the applicant's submission invalidates the decision. The applicant also complains that the Tribunal failed to draw attention of the applicant or his legal advisers to this view of the Tribunal that there was a material inconsistency between the date of birth given for the applicant's brother in the questionnaire and the date of birth given by the applicant in his testimony. It is submitted that if this issue had been brought to the attention of the applicant's legal team, they would immediately have referred the Tribunal to the original un-translated questionnaire and pointed out to the Tribunal the error in the English translation. The applicant states that the failure on the part of the Tribunal to give him notice of this mistake is another matter which vitiates the decision. 36. I am satisfied that while an error was made in relation to the brother's date of birth, it was in relation to a peripheral issue concerning whether the applicant or his mother sought police protection. I would not strike down the decision of the RAT on this account. Failure to consider explanation for discrepancy on relocation
A. I thought that the question in the questionnaire meant that I move with my home and family altogether. I didn't understand it as meaning did I move elsewhere as an individual person. " 39. The respondent submitted that the Tribunal Member was entitled to have regard to question 26(a) of the applicant's questionnaire wherein the applicant clearly stated that he did not move to "a different town or village or another part" of the country to avoid the persecution he feared. The applicant subsequently stated that he had moved within Albania and he was given an opportunity to explain the discrepancy. The applicant maintains that "maybe I made a mistake when I filled it out" and "I just filled it out. I do not know. I just wrote the way I wrote it". The respondent submits that it was open to the Tribunal Member to assess this evidence and conclude that there was a "material discrepancy" in the applicant's evidence. 40. Where there was a discrepancy between the applicant's answers at the interview and at the hearing, the decision maker was entitled to have regard to that discrepancy in reaching her decision. I do not think that the decision can be criticised on this account. Failure to consider COI on effectiveness of reconciliation 42. I am satisfied that this finding was reached by the Tribunal on a consideration of the COI before it. The RAT was entitled to come to the conclusion that the applicant had not tried reconciliation and that this affected his credibility. However, this was not a central plank in the decision reached by the Tribunal. Speculation/Conjecture
• The applicant's 'entire story simply does not ring true and is rejected' (subpara. (g), p. 27) • The fact that there has been no retribution killing in all of this time is telling of itself (subpara. (g), p. 27)"
'.... there is a wider principle, being the one identified by Peart J., when he says that the decision cannot be based simply upon a gut feeling or a view based on experience or instinct that the truth has not been told A finding of lack of credibility, it is at least arguable, must therefore be based on a rational analysis which explains why, in the view of the deciding officer, the truth has not been told. “ Finding in relation to not having sought asylum in France
48. The respondent states that the Tribunal Member noted that the applicant was unable to give specific details in relation to his travel to France and furthermore that he failed to seek asylum in France suggesting that he was not a bona fide refugee fleeing persecution. The applicant complains that an asylum seeker is not obliged to seek protection in the first safe country and it was submitted that no adverse inference can be drawn from this evidence. The respondent states that this submission is without regard to s. 11B(b) of the Refugee Act 1996 and the decision of Clark J. in A.R. (Georgia) v. Refugee Appeals Tribunal [2010] IEHC 487, wherein she stated as follows:-
Conclusions |