(President Higgins appointing Colm MacEochaidh as Judge of the High Court last year)
You may recall the Iranian asylum seeker whose gayness was questioned by a member of the Refugee Appeals Tribunal.
Another Iranian man, who came to Ireland on December 19, 2009, applied for refugee protection out of fear he would be persecuted due to his political opinions and email campaigning.
He told the Irish authorities he was arrested in June 2009 at a ‘Green Movement’ demonstration and that he was tortured for 12 days. He said he was almost arrested on a second occasion, at another political demonstration, but that he escaped.
His application was turned down in July 2012, with the Refugee Applications Commissioner claiming his application lacked credibility. This decision was later upheld by the Refugee Appeals Tribunal.
In upholding the decision to reject the Iranian man’s application, a Tribunal member wrote how copies of emails that were given to the Tribunal didn’t bolster the man’s claims. The Tribunal member also wrote about short video clips which, the Tribunal member claimed, actually contradicted the man’s evidence in his application.
The Tribunal member wrote:
“They [the copy emails] do not bolster his claim in any material sense. The Tribunal is fortified in this view by viewing the short video clips (recorded on a phone) of his purported attendance at various demonstrations in Iran provided by the appellant in support of his claim. Again, it is difficult to ascertain by viewing them whether the appellant was even present or whether they were obtained elsewhere (to note in this regard is that the appellant stated that they were stored on a removable flash memory card rather than on the RAM of the phone itself). However, even if one were to untainted by the visible presence of police or army officers.
Indeed, the participants themselves appeared fairly relaxed and unconcerned about the presence of even undercover agents, which seems incongruous with the earlier contention made by the appellant that he and other participants had been acutely aware of the dangers of undercover agents and the resultant necessity to conduct all their activities furtively.“
The Iranian man never submitted any such video clips as part of his application.
In reviewing the case, Judge Colm Mac Eochaidh found:
“The pleading and averment about the video clip are not met by the respondent with evidence to the contrary. The statement of opposition is in the barest of terms, applicant did not tender a video clip in evidence to the Refugee Appeals Tribunal. No explanation has been offered by Counsel for the Tribunal why the decision maker said that a video clip had been submitted by the applicant. I do not need to speculate on how this happened. The respondents’ silence speaks for itself. I have no doubt but that the complaint made in respect of this matter by the applicant must be upheld.”
“Counsel for the Tribunal urges me to allow the decision to stand by excising the passage quoted above dealing with the video clip. This is an invitation I refuse. Numerous decisions of the High Court warn against deconstructing credibility findings in decisions of the RAT. As Cooke J. notes in I.R. v. Minister for Justice, Equality and Law Reform  IEHC 353 “When subjected to judicial review, a decision on credibility must be read as a whole and the Court should be wary of attempts to deconstruct an overall conclusion by subjecting its individual parts to isolated examination in disregard of the cumulative impression made upon the decision-maker. ………” That cuts both ways and applies to respondents too.
“In this case, I cannot overlook the stark fact that the Tribunal Member considered evidence which he mistakenly believed the applicant had submitted. Neither can I disregard the fact that the Tribunal Member analysed the content of that material and concluded that it contradicted claims made by the applicant. Though it is not possible to say to what extent this contributed to the rejection of credibility, its negative effect cannot have been small. However one might categorise or describe what happened, my view is that the episode infuses the decision with illegality and it must therefore be set aside.“
Judge Mac Eochaidh has granted the man leave to seek judicial review and ordered the man’s case to be heard again but by a different Tribunal member.
Read Justice Mac Eochaidh’s decision in full here.
Previously: Rescuing The Gay Refugee
Thanks Mark Malone