High Court grants leave for judicial review on substantial error regarding Armenian Christian church restrictions and baptism.

Neutral Citation Number: [2007] IEHC 359

THE HIGH COURT

JUDICIAL REVIEW

[2006 No. 247 JR]

BETWEEN

A. C.

APPLICANT

AND

THE REFUGEES APPEALS TRIBUNAL AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

Judgment of Ms. Justice Dunne delivered on the 19th day of October, 2007

1. The applicant herein seeks an order of certiorari quashing the decision dated the 6th January, 2006 made by the first named

respondent recommending to the second named respondent that the applicant should not be declared a refugee. Further ancillary

relief is sought.

Background

2. The applicant is a native of Iran, who was born into the Islamic religion. He met his girlfriend in June 2003. She was an Armenian

Christian. The basis of the applicant’s claim for refugee status is his conversion to Christianity and membership of a social group. He

claimed that his interest in Christianity grew out of his relationship with his girlfriend as a result of discussions and teaching from his

girlfriend’s father together with his own reading on the subject.

3. He outlined a number of incidents in which he came to the adverse attention of the authorities, some of which involved his

girlfriend. He claimed to be in fear of his life because of the reaction of his family, friends and neighbours to his conversion from Islam

to Christianity. He finally left his family home after his room was searched by local officials after his father informed them of his son’s

conversion from Islam to Christianity. He went into hiding in his girlfriend’s home and after six days left Iran. He pointed out that

apostasy was a criminal offence in Iran. He also added that although he had converted from Islam to Christianity he could not be

baptised in Iran. The applicant’s appeal against the recommendation of the Refugee Applications Commissioner was refused by the

first named respondent on the basis that his claim for asylum lacked credibility.

The grounds of this application.

4. It is necessary to refer to the precise grounds pleaded in support of the application herein. I do not propose to set out all of the

grounds but it would be helpful to refer to some of them. Paragraph 2 of the grounds states:-

“2. The first named respondent breached the principles of fair procedures and natural and constitutional justice and acted

outside jurisdiction in refusing the applicant’s said appeal on the basis that he purportedly lacked credibility due to his

demeanour at the oral hearing. Accordingly, the first named respondent took an unlawful matter into consideration in

assessing the credibility of the applicant’s claim for asylum. It is impermissible for the first named respondent, charged

with the duty to act judicially, to attempt to render his decision immune to appeal or review by merely reciting that the

person in respect of whom the decision is made lacks credibility due to their demeanour before him. Apart from being a

breach of fair procedures, it renders the said decision of the first named [respondent] unreasonable in the “Wednesbury”

sense.

3. Further and in the alternative the decision of the first named respondent in respect of his finding that the applicant

purportedly lacks credibility is vague to the point of being unlawful. The duty of the first named respondent, which he

breached, is to, at a minimum, identify those elements of the evidence presented by the applicant, which are material to

his claim for asylum, which he does not believe.”

5. At the hearing before me and indeed in the written submissions furnished on behalf of the applicant a major part of the complaint

made in respect of the decision of the first named respondent herein related to the conclusion that the Applicant lacked credibility

based on the purported demeanour of the applicant at the oral hearing. It was submitted that the decision made by the Tribunal was

vague and that it was inappropriate for the Tribunal Member not to consider country of origin information because of a doubt as to

the subjective element of an applicant’s claim. It was submitted that the Tribunal Member ignored country of origin information

because of the view taken by the Tribunal Member of the applicant’s account of his circumstances.

6. In response to the complaints made by the applicant in relation to the assessment of the demeanour of the applicant, counsel on

behalf of the respondent submitted that the subjective credibility of the applicant was at the heart of the decision of the first named

respondent. It was noted that in giving the decision, the first named respondent stated at p. 6 of the decision as follows:-

“In assessing credibility, I have had the opportunity of seeing and hearing the applicant and observing the manner in

which the evidence was given and the demeanour of the applicant.”

7. The first named respondent went on at p. 8 of the decision to state:-

“Having had the opportunity of hearing the evidence and observing the applicant and having carefully considered the

evidence given by the applicant in his appeal and the submissions made on his behalf by legal advisors and the

submissions on the presenting officers, I am not satisfied that the applicant has demonstrated a well founded fear of

persecution for any of the reasons contemplated by s. 2 of the Refugee Act, 1996 (as amended).”

8. Accordingly it was submitted that the respondent was acting within jurisdiction when observing the demeanour of the applicant.

Reliance was placed on the decision of Peart J. in Imafu v. Minister for Justice, Equality and Law Reform and Refugee Appeals

Tribunal (Unreported, High Court, 9th December, 2005) in which it was stated:-

“This Court must not fall into the trap of substituting its own view on credibility for that of the Tribunal Member. The

latter, just as a trial judge is at trial rather than the appellate court is in the best position to assess credibility based on

the observation and demeanour of the applicant when she gives her evidence.”

9. Counsel also relied on the decision of the High Court in the case of Camara v. Refugee Appeals Tribunal, (Unreported, High Court,

26th July, 2000) Kelly J. in which it was stated:-

“In my view the question of the credibility of the applicant was a matter which was relevant for consideration by the

authority, who was of course uniquely placed to make an adjudication upon it by virtue of the oral hearing which he

conducted and where he had an opportunity to assess the demeanour of the applicant.”

10. Accordingly it was submitted that the demeanour of the applicant was a proper part of the assessment of credibility to be

considered by the Tribunal Member.

11. I have to say that I find it an unusual proposition, to say the least, that the Tribunal Member in assessing the credibility of the

applicant before him at an oral hearing is not entitled to take into consideration in the course of that assessment the demeanour of

the applicant. Apart from the two decisions referred to in the submissions of the respondent, it is clear from many decisions of

appellate courts dealing with the findings of a court of trial based on the assessment of a witness’s credibility that the court of trial is

best placed to assess the credibility of a witness before the trial court rather than the appellate court dealing with the matter based

on a transcript. The demeanour of a witness is but one aspect of the assessment of credibility of a witness but it seems to me it is an

important part of the assessment of credibility. A hearing before the Refugee Appeals Tribunal is not, of course, an adversarial hearing

but the assessment of credibility is an important aspect of the hearing before the Tribunal and indeed, at the ORAC hearing. I cannot

see any basis for saying that a Tribunal Member is incorrect in its approach to the assessment of credibility in taking into account the

demeanour of an applicant before the Tribunal. Accordingly, so far as this aspect of the applicant’s claim is concerned I cannot

accept the proposition made.

12. A second complaint made on behalf of the applicant was to the effect that the decision of the first named respondent herein as

to the applicant’s lack of credibility was vague to the point of being unlawful. In other words the complaint was made that the

Tribunal Member was not specific as to why the applicant herein lacked credibility. It was submitted on behalf of the applicant that

the first named respondent had a duty to identify the elements of the evidence presented by the applicant which are material to the

claim for asylum, which the Tribunal Member does not believe. In this regard I think it is necessary to refer in some detail to the

Tribunal decision. In the course of the decision, the Tribunal Member set out extensively the background to the applicant’s claim. He

described meeting his girlfriend in June 2003, that she was an Armenian Christian and that his interest in Christianity began following

his meeting with her. He described an incident in November 2003, when he and his girlfriend were approached by government officials,

following which he was detained for two days. He and his girlfriend were taken to court and sentenced to eighty lashes. This was

apparently because he was sitting with a member of the opposite sex in a public park. His own family did not assist him at this time

but the family of his girlfriend paid a fine that was levied on him at that time. He described the circumstances in which his room was

searched and which led to him fleeing to his girlfriend’s family home for a number of days subsequent to which he left Iran. He

described the circumstances of his departure from Iran and how he travelled to Ireland. He also described in detail a number of

occasions on which he had been arrested for what was described as misbehaviour in Iran. He described his education and his religious

upbringing. He accepted that if he had been born into the Christian faith this would have been accepted in Iran by the government

officials.

13. He indicated that he did not have any difficulties when he did military service in Iran. In relation to the occasions where he came

to the attention of the authorities he agreed that the times that he was arrested occurred prior to him developing an interest in

Christianity. He was asked about documentation in support of his identity and he indicated that “I only submitted a military card in

support of my ID. The original is at home in Iran.” He then indicated that he did not claim asylum in Turkey because he was told it

was not safe to do so nor did he claim asylum en route to Ireland.

14. In the part of the decision of the Tribunal Member headed “Decision”, the Tribunal Member set out in detail the basis upon which

he came to the decision. I think it is necessary to refer in some detail to the findings of the Tribunal Member and therefore I propose

to quote at some length from this section of the decision. The Tribunal Member stated at p. 6 of his decision as follows:-

“I am satisfied from the evidence before me at the hearing that the lack of credibility in this case fundamentally infects

the subjective element of a well founded fear of persecution. The applicant was not believed. In such a situation, the

objective element of the well founded fear of assessment does not require to be made, since without a credible subjective

element, the objective element does not become relevant – Ojelabi, judgment of Peart J. delivered on 28th February,

2005 in the High Court, Imafu judgment of Peart J. delivered on 9th December, 2005 and Kombo v. Canada [2001] F.C.T.

439. In assessing credibility I have had the opportunity of seeing and hearing the applicant and observing the manner in

which the evidence was given and the demeanour of the applicant. Furthermore, in assessing the credibility of the

applicant I have also had regard to the provisions of s. 11B and all the subsections provided therein of the Refugee Act,

1996 (as amended). One of the basic principles of asylum law is that an applicant must satisfy the person assessing his

case that he is from Iran as claimed in this case. I am satisfied from the facts before me that the applicant has presented

the Tribunal very little in the way of identity documentation and he has not provided a reasonable explanation for the

absence of such documents. The applicant has not submitted any reliable photographic identification. The only

documentation submitted by the applicant in support of his identity was a copy which purports to be a certified copy of a

completion of military service card. I am satisfied that this document could not assist the Tribunal to verify the applicant’s

identity. In this respect, regard is had to s. 11B(a) of the Refugee Act, 1996 (as amended). I find that this undermines

the applicant’s credibility.

Even if the applicant has provided adequate identification documents, which I do not accept that he has, I find that he

has not provided in my view a full and true explanation of how he travelled to and arrived at this State. In this respect,

regard is had to s. 11B(c) of the Refugee Act, 1996 (as amended). I have arrived at this conclusion based on the answers

provided by the applicant at the hearing before me.

I am also satisfied from the facts before me that the applicant has not provided the Tribunal with a reasonable

explanation to substantiate his claim that the Irish State is the first safe country in which he has arrived since departing

from his country of origin information. In this respect, regard is had to s. 11B(b) of the Refugee Act, 1996 (as amended).

I am, also satisfied from the facts before me that the applicant has not provided the Tribunal with a reasonable

explanation to show why he did not claim asylum immediately on arriving at the frontiers of the Irish State. In this respect

regard is had to s. 11B(d) of the Refugee Act, 1996 (as amended).

I am also satisfied that the evidence before me was lacking in detail and was vague in some respects. It is difficult to

accept how the applicant can state in writing in the application for refugee status questionnaire, that one of his friends,

Hamid Awaz, had shown an interest in the applicant’s alleged conversion to Christianity. He stated among others that

Hamid displayed much interest in Christianity and as a result, they made time to have a meeting to talk with each other

more comfortably. He described the last meeting with Hamid in his home which raised his father’s suspicions and reported

the applicant to the authorities who carried out a search of his house. Yet he did not discuss this any further in his

evidence to the Tribunal. This is considered in light of the fact that as a result of this search, the applicant went into

hiding and subsequently fled Iran. I also note that the applicant claimed the reason he fled from Iran was because of his

conversion to Christianity. When asked by the presenting officer what ceremony did he go through to become a Christian,

he replied “I believe in Christianity and that Jesus Christ is a prophet. I am going to be baptised on 23rd October, 2005 in

Ireland”. Furthermore I am satisfied from country of origin information on file, notably appendix A appended to the s. 13

Report, that the Armenian, Gregorian Church believes in dialogue between itself and the Iranian authorities and in showing

respect for each others beliefs. Furthermore, the Armenian Gregorian Church is a national Church and accepts only people

who are of Armenian nationality of descent. They also do not encourage conversions of Armenians and are very reluctant

to countenance contacts with non Christians who want to discuss religious matters. Muslims are never allowed to convert

to their religion and can never be part of their community of faith.

Having had an opportunity of hearing the evidence and observing the applicant and having carefully considered the

evidence given by the applicant in his appeal and the submissions made on his behalf by legal advisers and the

submissions of the presenting officer, I am not satisfied that the applicant has demonstrated a well founded fear of

persecution for any of the reasons contemplated by s. 2 of the Refugee Act, 1996 (as amended).”

15. As can be seen from the above, a number of specific points were highlighted by the Tribunal Member in relation to the credibility

of the applicant. The first was the lack of identity documentation. The second point related to the account or explanation furnished

by the applicant as to how he had travelled to and arrived in the State. The third point raised was the fact that the applicant did not

claim asylum immediately on arriving at the frontiers of the State. So far as this last point was concerned, in the course of

submissions on behalf of the applicant it was submitted that the delay on the part of the applicant was caused by the time at which

he had arrived at the office of the Refugee Applications Commissioner. This matter was dealt with by the applicant in his affidavit

where he stated that:-

“I say that your deponent arrived in the State on Friday 25th February, 2005 and immediately went to the offices of the

Refugee Applications Commissioner for the purposes of applying for asylum. I say that when your deponent indicated to an

officer or agent of the Refugee Applications Commissioner that he whished to seek asylum, he was advised to wait and

take a seat. I say that the time was 4.30 pm and the offices of the Refugee Applications Commissioner was about to

close. I further say that I was advised that there was no interpreter available at that time and to go to a particular

address for accommodation and returned to the office on Monday 28th February, 2005. I say that on 25th February, your

deponent was asked to and did sign a document entitled “RAC/RECPT/4” and the said document is on your deponents file

which was before the first named respondent prior to the making of the decision of 5th January, 2006. …

I say that your deponent returned to the offices of the Refugee Applications Commissioner on Monday 28th February,

2005 and that his application for asylum was then processed in the normal fashion. I say that the said facts were at all

relevant times before the first named respondent prior to the making of the said decision.”

16. In the submissions on behalf of the respondent the point was made that the office of the Refugee Applications Commissioner was

not the point of entry to the State. At p. 3 of the decision it was noted by the Tribunal Member in setting out the account given by

the applicant as to how he arrived in the State that “he did not apply for asylum at the point of entry into Ireland stating that he did

not know he could do so.” Accordingly, the point made by counsel on behalf of the respondent was that it is clear that the applicant

did not apply for asylum at the point of entry into the State. It was accepted by counsel for the respondent that the application for

refugee status was first made on the 25th February, 2005 but counsel also noted that in the course of the s. 11 interview, the

applicant himself did was vague as to the date he arrived in the State. (See question 13 and question 196 in the interview .)

17. Counsel on behalf of the respondent also dealt with the lack of identification documentation. Following his arrival in the State, the

applicant obtained from Iran a document which was described as a card for the completion of military service. The Tribunal Member in

his consideration of this document commented adversely on the fact that that document was a photocopy. It was concluded that the

document was not sufficient to assist the Tribunal in verifying the applicant’s identity. Counsel for the respondent noted that no

reasonable explanation was furnished by the applicant at any stage as to why that document was only a photocopy. In the course of

his affidavit grounding this application the applicant stated as follows:-

“I say that I am an Iranian citizen and as such completed national military service and was provided with a military service

card for that purpose by the Iranian State. I say that, prior to leaving Iran, I left with my girlfriend a number of personal

documents for safe keeping, amongst which was my military service card. I say that after applying for asylum in the State

it was made clear to me by the officers or agents of the second named respondent that some form of identity to

corroborate my nationality would assist in my said claim for asylum. Accordingly, I contact (sic) my girlfriend’s family in

Iran and requested that a copy of my said military service card be forwarded to your deponent in Ireland. Accordingly, I

say that my girlfriend’s family obtained a certified copy of the said card in Tehran and sent it to your deponent by way of

DHL courier.”

18. He then exhibited the copy of the identity card and the DHL envelope within which it came from Iran.

19. A point was made by counsel on behalf of the respondent that were the court to grant leave to challenge the decision of the

Tribunal Member on the basis of the finding that the applicant’s credibility was undermined by the lack of identity documentation that

the court would in effect be substituting its view in relation to the decision of the Tribunal. It was pointed out that the function of

the court is not to substitute its view for that of the Tribunal Member.

20. I accept that in accordance with the provisions of s. 11B(a) of the Refugee Act 1996 (as amended) the Tribunal Member was

entitled to consider the issue of identity and that in doing so he was acting within jurisdiction. The Tribunal Member considered the

documentation submitted and it was for him to reach a finding on the basis of the documentation submitted. Certainly there was a

basis on the evidence for the conclusion reached by the Tribunal Member. In those circumstances it does not appear to me that the

decision of the Tribunal Member on this point can be challenged.

21. The other finding of the Tribunal Member related to the applicant’s claim that the Irish State was the first safe country in which

he had arrived since departing from Iran. The Tribunal Member at p. 3 of the decision set out in some detail the circumstances relied

on by the applicant in relation to his travel to Ireland. I find it difficult to see any basis upon which this court could interfere with the

findings of the Tribunal Member in this regard.

22. As indicated above, counsel on behalf of the applicant complained that the first named respondent failed to specify the grounds

upon which the applicant lacked credibility. Having referred at length to the decision of the Tribunal Member and to the basis for that

decision I find that I cannot accept the submissions of counsel on behalf of the applicant to that effect.

23. A number of other matters were raised on behalf of the applicant by way of challenge to the decision of the first named

respondent. It was submitted that the first named respondent in refusing the claim on the basis that “the objective element of the

well-founded fear of assessment does not require to be made, since without a credible subjective element, the objective element

does not become relevant” was the incorrect legal method for assessing asylum claimed. It was submitted that the correct approach

was that the Tribunal as part of the assessment of credibility was to have regard to country of origin information. Reference was

made to the decisions in the case of A.M.T. v. Refugee Appeals Tribunal [2004] 2 I.R. 607 and to the decision in the case of Imafu v.

Minister for Justice, Equality and Law Reform (Unreported, High Court, Clarke J., 27th May, 2005), on the application for leave to

apply for judicial review. It was submitted on behalf of the applicant that the first named respondent had no material upon which to

base his conclusion that the applicant’s fear was not subjectively credible and that therefore no assessment of whether the fear was

objectively credible was necessary. It was submitted therefore that such a decision was irrational and invalid. By way of response to

this argument, it was submitted that the decision in this case was clearly based on the subjective credibility of the applicant.

Nonetheless, it was submitted that it is clear from the decision of the Tribunal Member that country of origin information was

considered by the Tribunal Member in the course of his decision. Reliance was placed by counsel on behalf of the respondent on the

decision of Peart J. in Ojelabi v. Refugee Appeals Tribunal (Unreported, High Court, 28th February, 2005) in which he stated:-

“The lack of credibility fundamentally infects the subjective element of a well-founded fear of persecution. The applicant

was simply not believed, as I have said. In such a situation, the objective element of the well-founded fear assessment

does not require to be made, since without a credible subjective element, the objective element does not become

relevant.”

24. A similar observation was made by Peart J. in the case of Imafu v. The Minister for Justice, Equality and Law Reform and the

Refugee Appeals Tribunal (Unreported, High Court, 9th December, 2005) in the course of the substantive hearing in that case. There

Peart J. noted:-

“In the present case the applicant was not believed as to her personal tale and it is reasonable to conclude therefore

that no matter how much evidence or material may have been available as to the state of things in Nigeria from an

objective viewpoint, this could not have persuaded the member to believe the personal story.”

25. It is clear from the authorities referred to above that it is not necessary for a Tribunal Member to consider the objective element

of the well-founded fear in circumstances where the personal story or subjective element is simply not believed. As pointed out by

Peart J. in those circumstances it appears that no matter what evidence is available by way of information as to the objective state

of affairs in a particular situation and country it is not going to change the overall position given that the individual before the

Tribunal is simply not believed. It will be noted that the applicant’s submission was predicated on the basis that the first named

respondent had no material upon which to base his conclusion that the applicant’s fear was not subjectively credible. For reasons I

have already indicated above, it seems to me that the Tribunal Member had set out in some detail in the course of his decision the

material upon which he based his conclusion that the applicant’s fear was not subjectively credible and for that reason I am of the

view that the submission made in this regard on behalf of the applicant is misplaced. Were it the case that there was no basis for the

conclusion that the applicant’s fear of persecution was not subjectively credible, then it would be necessary to carry out an

assessment of whether the fear of persecution was objectively credible.

26. In any event it is clear from the decision as pointed out above that the Tribunal Member did in fact consider country of origin

information.

Standard of proof

27. Counsel on behalf of the applicant also took issue with the standard of proof stated to have been applied by the Tribunal Member

in this case. Reference was made to the UNHCR Handbook and in particular to paras. 196 – 197 of the Handbook. It was submitted

that the first named respondent failed to have regard to the principles set out in paras. 196 – 197 of the UNHCR Handbook in regard

to the burden of proof when assessing the documentation and evidence presented by the applicant in respect of his country of origin.

By way of response, reference was made to the provisions of s. 11(a) of the Refugee Act 1996 as amended and in particular to subs.

3 of the Act which states:

“Where an applicant appeals against a recommendation of a Commissioner under s. 13, it shall be for him or her to show

that he or she is a refugee.”

28. It was submitted that there is no “shared” burden of proof in asylum cases and that the burden remains on the applicant to set

out his claim. That proposition is not diluted by what has sometimes been termed the shared burden of production between an

applicant and respondent. Counsel on behalf of the respondent then referred specifically to the manner in which the Tribunal Member

had considered the identity documentation produced by the applicant. It was submitted that the respondent took into account all the

documentation submitted by the applicant in relation to his identity. Thus it was not accepted that the first named respondent had

failed to follow the procedures set out in paras. 196 – 197 of the UNHCR Handbook. As I have already referred to, a Tribunal Member

in dealing with an appeal has to have regard to the provisions of s. 11B of the Refugee Act 1996 (as amended) in the assessment of

credibility of an applicant. It has long been accepted that the UNHCR Handbook is an authoritive source for the interpretation of the

1951 Convention as pointed out by counsel on behalf of the applicant herein. Nonetheless, I fail to see how it is alleged on behalf of

the applicant that the first named respondent herein failed to apply the correct standard of proof. This issue arose in the context of

the documentation supplied by the applicant to support his claim as to his identity, namely, the copy of the military service card.

Complaint was made that the first named respondent did not give any or any adequate reason as to why he did not accept the

authenticity of this document. In para. 196 of the UNHCR Handbook it is noted that “in most cases a person fleeing from persecution

will have arrived with the barest necessities and very frequently even without personal documents”. Paragraph 197 states:

“The requirement of evidence should thus not be too strictly applied in view of the difficultly of proof inherent in the

special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does

not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the

general account put forward by the applicant.”

29. In this case the applicant set out in his affidavit the circumstances in which he obtained the copy of his military service card.

Although he had apparently left that card with his girlfriend’s family, what was sent was a photocopy of the document. I have already

dealt with the conclusions of the Tribunal Member in regard to the document submitted and his findings on that document, but I

cannot say having regard to the submissions made in this respect that the Tribunal Member applied an incorrect standard of proof.

The document was produced by the applicant. The Tribunal Member considered the document produced by the applicant and came to

a conclusion in respect of that document. As there was no apparent reason why the applicant could not produce the original of his

military service card, given that he was able to obtain a photocopy from the person who apparently had the original, it does not seem

to me that the applicant has established the grounds necessary to support the argument that the Tribunal Member applied an

incorrect standard of proof in relation to the identity of the applicant.

Cumulative credibility findings

30. It was submitted on behalf of the applicant that even if this court concluded that the errors alleged to have been made by the

first named respondent when assessing the applicant’s credibility were in themselves minor, that the cumulative effect of such errors

makes them substantial. Reference was made to the decision in the case of Bisong v. The Refugee Appeals Tribunal [2005] IEHC 157.

I do not disagree with the submission that a series of errors made by a Tribunal Member in assessing an applicant’s credibility which

might of themselves be minor, could be regarded as substantial when the cumulative effect of such errors is considered. If in any

given case a Tribunal Member in assessing an individual’s credibility were to make a series of errors in that assessment one would

have considerable concerns as to the correctness of the decision, particularly, if there were a significant number of errors.

31. A number of matters were relied on by the applicant in support of this contention. The first of these was that the Tribunal

Member in the course of his decision referred to the following “he did not discuss… his last meeting with Hamid in his home which

raised his father’s suspicions and reported the applicant to the authorities who carried out a search of his house… any further in his

evidence to the Tribunal.” The applicant submitted that he was not asked to discuss the above matters before the Tribunal by either

the first named respondent or by the presenting officer who was representing the Refugee Applications Commissioner. The first named

respondent also referred in the course of his decision to the following:-

“I also note that the applicant claimed the reason he held from Iran was because of his conversion to Christianity. When

asked by the presenting officer what ceremony did he go through to become a Christian, he replied ‘I believe in

Christianity and that Jesus Christ is a prophet. I am going to be baptised on 23rd October, 2005, in Ireland.’”

32. It was submitted that on the basis of that comment the first named respondent failed to take all relevant material into account in

breach of fair procedures and that the applicant’s credibility was impugned on an unreasonable and unlawful basis. Finally reference

was made to the reference by the Tribunal Member in the course of his decision to country of origin information to the effect that the

Armenian Gregorian Church does not allow Muslims to convert to their religion and that Muslims can never be part of their community

of faith. It was pointed out on behalf of the applicant that he has never stated that it was possible for him to convert to Christianity

within Iran and that he had in fact stated the opposite. On the basis of those points it was submitted that these were errors made by

the first named respondent in assessing the applicant’s credibility.

33. In her submissions, counsel on behalf of the respondents made the point that the Tribunal Member described the evidence before

him as lacking in detail and vague. Part of the complaint of the applicant was that if the Tribunal Member had concerns about the

evidence of the applicant in regard to his discussions and meeting with his friend Hamid that that should have been put to the

applicant either by the Tribunal Member himself or by the presenting officer. Counsel on behalf of the respondents relied on the

decision in the case of Nicolai v. The Refugee Appeals Tribunal (Unreported, High Court, 7th October, 2005) in which it was accepted

by O’Neill J. that a Tribunal Member was not required to act as counsel for the applicant. As O’Neill J. noted at p. 8 of his judgment:

“There is no doubt in my view that the Tribunal has a duty to ensure that the applicant is given every reasonable

opportunity to deal with all of the factors which could materially influence the decision. However the Tribunal is entitled to

have regard to the procedures already completed and the knowledge necessarily gained by the applicant from that

process and in particular a Tribunal is entitled to have due regard to the fact that the applicant was legally represented.

That being so it was not necessary for the Tribunal to in effect act as counsel, as a court would do with a lay litigant.

Having regard to the fact of legal representation the Tribunal could quite properly, not ask questions or seek to lead

evidence where that was not done by the legal representatives of the applicant. All the matters of which complaint is

now made, of not being put, arose from information given by the applicant in the course of the questionnaire or the

interview or oral evidence. Here we have a difficultly again to which I have already referred. We have no evidence of

what transpired in the oral hearing before the Tribunal and indeed we have no evidence that these matters were in fact

not put.”

34. I agree with the proposition set forth by O’Neill J. in his judgment in the Nicolai case. As has been said before, an applicant is not

a passive participant in the process. The applicant was aware, from the procedures that had already taken place, of the issues that

were relevant to his claim. He has the benefit of legal representation. Accordingly it was not for the Tribunal Member to tease out

every issue such as the detail of his last meeting with Hamid. I think it is also helpful in this regard to quote in full the passage from

the decision of the Tribunal Member dealing with this issue as it puts the matter more clearly in context. He stated:-

“I am also satisfied that the evidence before me was lacking in detail and was vague in some respects. It is difficult to

accept how the applicant can state in writing in the application for refugee status questionnaire that one of his friends

Hamid Awaz had shown an interest in the applicant’s alleged conversion to Christianity he stated among others that Hamid

displayed much interest in Christianity and as a result, they made time to have a meeting to talk with each other more

comfortably. He described the last meeting with Hamid in his home which raised his father’s suspicions and reported the

applicant to the authorities who carried out a search of his house. Yet he did not discuss this any further in his evidence

to the Tribunal. This is considered in the light of the fact that as a result of this search, the applicant went into hiding

and subsequently fled Iran.”

35. I think it is clear from the passage quoted above that the Tribunal Member found that the applicant was lacking in detail and

vague in respect of parts of the evidence that he gave. Specific reference was then made by the Tribunal Member to the incident

with Hamid which resulted in the applicant’s ultimate departure from Iran. Given the information that the Tribunal had both by way of

evidence before the Tribunal itself and the other material arising from the questionnaire and the interview, I am satisfied that it was

open to the Tribunal Member to reach the conclusion that the applicant was vague and lacking in detail without being required to

tease out the situation any further with the applicant.

36. The final complaint under this heading related to the statement in the course of the decision to the effect that:-

“…the applicant claimed the reason he fled from Iran was because of his conversion to Christianity. When asked by the

presenting officer what ceremony did he go through to become a Christian, he replied ‘I believe in Christianity and that

Jesus Christ is a prophet. I am going to be baptised on 23rd October, 2005 in Ireland.’

Furthermore, I am satisfied from country of origin information on file, notably appendix A appended to the s. 13 report

that the Armenian Gregorian Church believes in dialogue between itself and the Iranian authorities and in showing respect

for each others belief. Furthermore, the Armenian Gregorian Church is a national Church and accepts only people who are

of Armenian nationality of descent. They also do not encourage conversions of Armenians and are very reluctant to

countenance contacts with non Christians who want to discuss religious matters. Muslims are never allowed to convert to

their religion and can never be part of their community of faith.”

37. This is a case in which the core complaint of the applicant was that he fled Iran on the basis of his conversion from Islam to

Christianity. At para. 17 of the affidavit grounding his application the applicant stated, having referred to the passage in the decision

referred to above,:-

“17. I say that the above is an attempt by the first named respondent to impugn your deponents credibility in relation to

the core basis of his claim for asylum, I say that your deponent stated before the first named respondent that he was

due to be baptised into the Christian faith in October 2005 and I say that I was duly baptised into the Christian faith on

23rd October, 2005 at St. Finbar’s Cathedral and in this respect I beg to refer to a copy of my baptismal certificate and

photos taken with the Bishop of Cork, Cloyne and Ross at the baptismal ceremony.

18. I beg to refer to p. 8 of the said decision of the first named respondent where he also purports to impugn your

deponent’s credibility on the basis that the Armenian Church does not allow conversions of Muslims in Iran. I say that your

deponent never at any stage of his claim for asylum stated that it was possible for him to convert to Christianity within

Iran and in fact stated the opposite in his interview with the Refugee Applications Commissioner and before the first

named respondent. In this respect I beg to refer to the copy of the transcript of the interview with the servant or agent

of the Refugee Applications Commissioner.”

38. I have carefully read the s. 11 interview transcripts. The interview took place over two separate days. In the course of the

interview, the applicant discussed the basis of his interest in Christianity, how that arose and how it developed. Having read his

responses to the questions posed at interview I do not think that his answers go quite as far as he suggests in the affidavit grounding

this application. However, it was expressly put to him during the course of interview as follows:-

“The available country of origin information we have states that the Armenian Christians are a closed community and don’t

allow Muslims to convert to their religion or be part of their community of faith?

Answer: I explained previously that this person gave me information about Christianity and Jesus Christ and the laws

of Christianity. My changing was my choice.”

39. In fairness to the applicant, when asked about Christianity he never stated that he was a member of the Armenian Christian

Church or that he had been baptised into that church. He spoke at all times about having converted or converting to Christianity. He

did explain that he was going to be baptised in Cork. (p. 89 of the interview, question 224). Previously in the course of the interview

he was asked if he had attended his girlfriend’s church and he answered “No, I couldn’t go”.

40. The conversion to Christianity of the applicant is at the core of his claim for asylum. It is not disputed that he has now been

baptised into the Christian community. The country of origin information makes it clear that apostasy is a crime that may be

punishable by death.

41. The Tribunal Member in this case placed much emphasis on the applicant’s association with a member of the Armenian Gregorian

Church. Reliance was placed on the country of origin information about that particular church and the restrictions on those who seek

to join that church. I think it is arguable that the manner in which the country of origin information as to the Armenian Gregorian

Church was used to impugn the applicant’s credibility could be said to be an error in the circumstances of this case. Given that this

issue relates to the core area of the applicant’s claim for refugee status, it is arguable that this issue was a substantial error such as

to undermine the decision herein.

42. Finally, I think that it could also be argued that the Tribunal Member does not seem to have taken into account the baptism of

the applicant and the significance of that. In those circumstances I would be prepared to grant leave to apply for judicial review on

the basis of paras. 11 and 12 of the Statement of Grounds herein.

43. There was a point raised in relation to the issue of delay, but it was conceded by the respondents that that issue would not

debar the applicant from seeking leave to apply for judicial review.

44. Finally I do not think it is necessary to deal with the issue of reasonableness and the O’Keeffe/Wednesbury test given that I am

granting leave in respect of the issue identified above.