High Court quashes Refugee Appeals Tribunal decision on homosexuality claim due to procedural breach and failure to consider self-identification.

Neutral Citation: [2013] IEHC 448

THE HIGH COURT

JUDICIAL REVIEW

[NO. 2012/901 JR]

BETWEEN

A. P.

APPLICANT

-AND-

THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENTS

JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 20th day of September 2013

1. The applicant in this 'telescoped' hearing is an Iranian national who seeks, inter alia, certiorari of a decision of the Refugee Appeals

Tribunal (the "Tribunal") dated 30th August 2012 refusing him refugee status. On 31st July 2013, I indicated to both parties that I

was quashing the decision of the tribunal, remitting the matter for reconsideration and that I would give the reasons for my decision

at a later date, this I now so do.

Background:

2. The applicant was born on the 14th August 1977 in Iran and is a native Farsi speaker. He arrived in the State on 10th June 2007

and thereafter applied for asylum on the 15th June 2007. The applicant presented as a homosexual man and claimed to have a well

founded fear of persecution on the basis of his membership of this social group in Iran. The applicant claims that he fled Iran following

an incident which occurred at his neighbour's apartment. The applicant claims that on visiting the apartment, his neighbour invited him

to watch a gay pornographic DVD and attempted to force him to have sex with him. The applicant states that he initially refused to

comply because the neighbour's father was a colonel in the Iranian police. However, the neighbour blackmailed the applicant into

engaging in the act by threatening to tell his father that the applicant had supplied him with the DVD. The applicant alleges that the

neighbour's father appeared and attacked him in the midst of the rape. In a letter written by the applicant's mother and submitted to

the Tribunal it is alleged that the neighbour's father took a picture or video of the incident on his phone. The letter also states that

the neighbour's father showed these pictures to the applicant's mother. The applicant claims that he fled to his aunt's house following

the incident and was thereafter smuggled out of Iran concealed in his uncle's friend's car and later a truck.

3. He received a negative recommendation at first instance from the Office of the Refugee Applications Commissioner (ORAC) on 24th

October 2007. That recommendation was subsequently appealed to the Tribunal which, following a series of adjournments due to

translation difficulties and the involuntary hospitalisation of the applicant for a period of two months, gave its decision and upheld the

recommendation of ORAC on lih July 2011. The applicant then launched proceedings challenging the deeision of the Tribunal and leave

to apply for judicial review was granted by Cross J. on 22nd February 2012. Those proceedings were thereafter compromised and

updated legal submissions and medical reports were compiled and submitted by the applicant. A re-hearing of the applicant's appeal

was conducted and a fresh decision upholding the recommendation of ORAC issued and was notified to the applicant on 9th October

2012. It is the substance of that Tribunal decision which the applicant impugns in these proceedings.

Submissions:

4. Mr. Dignam S.C. for the applicant levies a series of complaints against the decision of the Tribunal Member in this case- In

particular, counsel takes issue with: i) the manner in which the Tribunal concluded that the applicant was not a homosexual from

Iran; ii) its failure to comply with s. 16 (8) Refugee Act 1996 with regard to furnishing a report to the applicant; iii) the selective use

of the report in determining a core element of the applicant's claim; iv) the failure to indicate to the applicant that a fundamental

aspect of his claim (as regards his homosexuality) was being re-opened and the failure to provide him with an opportunity to comment

thereon; v) the manner in which the evidence of a witness was treated and the failure to adequately take it into consideration; vi)

the manner in which the applicant's credibility was assessed; and vii) the failure to take into account the applicant's fragile mental

health state in the assessment of his claim.

5. In respect of the first complaint, the applicant contends that the Tribunal Member erred in concluding that he was not satisfied as

to the credibility of the applicant's claim that he was gay and perceived to be gay in Iran. Counsel submits that the Tribunal Member

erred in reaching this conclusion on the basis that he disbelieved the applicant's account of the incident which caused his flight from

Iran, the details of his travel to the State and his failure to seek asylum in other countries. It is stated that the applicant's evidence

in relation to his self-identification as a gay man does not appear to have received any or any sufficient attention by the Tribunal in

this regard. Further, the applicant complains that the report referred to by the Tribunal Member in reaching his decision, "Fleeing

Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in Europe" (September 2011, Jansen & Spijkerboer) was

not referred to at the oral hearing in breach of s. 16(8) Refugee Act 1996, nor was any indication given to the applicant that his

sexual orientation was being questioned by the Tribunal. In this regard, the applicant also makes complaint that the Tribunal Member

was selective in his interpretation of the report consulted and failed to apply its terms properly in determining a core issue. In

particular, the applicant makes complaint that the Tribunal Member failed to give reasons or adequate reasons for disbelieving the

applicant's self-identification as a gay man and his narrative in respect of that particular issue.

6. Counsel for the applicant also notes that while questions were raised in relation to the applicant's account of the incident which

allegedly caused him to flee Iran, no adverse credibility findings were made by ORAC at first instance as regards his sexual orientation.

As such, the applicant submits that the decision maker in ORAC accepted that the applicant was gay. In light of this, counsel for the

applicant claims that as a matter of fair procedures, the applicant was entitled to be put on notice that this fundamental aspect of

his claim was going to be re-opened on appeal. Further, the applicant states that the Tribunal Member failed to put these concerns to

him at the oral hearing so as to give him an opportunity to respond. Issue is also raised by the applicant with the manner in which the

evidence of a witness on his behalf Mr. O'Ceallaigh, formerly of Galway Gay Men's Helpline, was dealt with by the Tribunal and it is

submitted that insufficient weight was given to his evidence particularly in light of its potential to support the core claim of the

applicant.

7. Finally, the applicant makes complaint that the Tribunal Member erred in the manner in which he made adverse credibility findings in

relation to the applicant's sexuality without an adequate basis for so doing, with evidence to the contrary and averse to the dicta of

Cooke J. in I.R. v. Minister for Justice [2009] IEHC 353. It is also asserted that the Tribunal Member failed to take into account the

applicant's fragile mental state in the manner in which his claim was assessed. In this regard, counsel for the applicant claimed that a

'lightening' of the burden of proof on an applicant was appropriate in accordance with the UNHCR Guidelines.

8. Mr. Conlan Smyth B.L. for the respondent submits, in reply, that the Tribunal Member came to a clear view in relation to the

applicant's credibility in finding his narrative to be "...singularly incredible. It was inconsistent, inherently implausible and self

contradictory in several key areas" and that such finding ought not to be departed from in these proceedings. In this regard, the

respondent refers to the dicta of McGovern J. in K.K. v. Refugee Appeals Tribunal (Unreported, High Court, McGovern J., 22nd May

2007) who stated: "Provided there were facts or evidence which would entitle the first respondent to reach the conclusion he did,

then his decision would appear to be immune from challenge unless there were some breaches of natural or constitutional justice or

lack of vires." He further highlights that the decision specifies six reasons as to why the Tribunal dedded that the applicant had not

established that he was gay or perceived to be gay in Iran.

9. The respondent contends that the Tribunal Member has considered the applicant's self-identification as a gay man and refutes the

contention of the applicant that inadequate attention was paid to this aspect of his claim. He further submits that the burden of

proof is on the applicant in this regard and that where he has failed to discharge this burden it is open to the Tribunal to come to the

conclusion that the applicant has not established he is gay. Counsel states that this was clearly the central issue in the case and

that the matter was ventilated fully at the hearing, including the admission of evidence from a witness on behalf of the applicant who

gave his opinion that he was in fact gay. The respondent believes that the witness based this opinion on "gut feeling" and that it did

not occur to him that a person might fabricate a story in relation to their sexuality in order to substantiate a bogus asylum claim.

10. Counsel for the respondent dismisses the applicant's claim that s. 16(8) Refugee Act 1996 was breached in relation to the use of

the Jansen & Spijkerboer report and notes that it was not alleged that if the applicant had use of the document that his case would

have been presented in a different fashion, nor was it alleged that the applicant suffered any prejudice and crucially it was not

alleged that the principles referred to were in error. The respondent also submits that the report used does not contradict the

account given by the applicant to the Tribunal nor does it undermine the case made by the applicant. Further, counsel for the

respondent dismisses any assertion by the applicant that there was selective use and interpretation of the Jansen & Spijkerboer

report. The respondent believes that the recommendations of the report were complied with by the Tribunal Member and that he did

not base his decision on medical reports, he had reference to the evidence adduced by the applicant's witness and he did not put

inappropriate questions to the applicant. Rather, the respondent submits that the Tribunal Member gave the applicant the opportunity

to express himself fully in describing his sexual orientation at his oral hearing. As such, counsel submits that there is no lack of clarity

in respect of the basis of the Tribunal Member's finding that the applicant is not credible as to his claim to be gay and to be perceived

as such in Iran.

11. As to the remaining claims made by the applicant, the respondent dismisses the contention that the applicant should have been

put on notice that the issue of his sexual orientation would be re-opened on appeal and refers to the fact that the appeal is a de

novo hearing and that the burden of proof rests on an applicant to satisfy the Tribunal Member as to the veracity of his claim.

Further, the respondent submits that it is clear that the sexual orientation of the applicant was to the forefront of the hearing and

that his core claim was therefore clearly considered. It is also submitted that the evidence of the witness adduced on behalf of the

applicant was taken into account and carefully considered by the Tribunal Member contrary to the applicant's claim. Finally, the

respondent states that the applicant's reference to a 'lightening' of the burden of proof in relation to a person who is mentally

disturbed is not applicable in this case and that the Tribunal Member fully accepted that the applicant had mental health issues and

reference was made in his decision to the medical reports submitted in this regard.

Findings:

12. In the court's view, the Tribunal rejected the claim of the applicant principally on the basis of adverse credibility findings. It is

clear that the Tribunal Member found the applicant's claims to be "inconsistent, inherently implausible and self-contradictory in several

key areas." As a result, the Tribunal Member held that the applicant"s lack of credibility fatally undermined his narrative that he was

both a homosexual and perceived to be such in Iran. While the applicant has levied a series of complaints at this decision, in the view

of the court it is the manner in which the Tribunal assessed the credibility of the applicant which renders it unlawful. The assessment

was contrary to the oft quoted dicta of Cooke J. in I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 353. It is my

view that the Tribunal Member has erred in the manner in which he has reached the following adverse credibility findings and it is this

failure which fatally undermines his conclusion in this case.

13. The Tribunal Member believes that the applicant was inconsistent in his evidence and that an answer to a question in his s. 11

interview undermined certain other responses given. The Tribunal Member states that: "the appellant's contention to the Tribunal that

he was an unwilling participant [in the alleged rape incident] and resisted advances made by his neighbour was undermined by his

admission later to the Tribunal that he found the same man attractive and had, as a result, made suggestive overtures to him in the

past, which he had given as the reason as to why that neighbour may have known that the appellant was allegedly gay. This was in

response to the presenting officer putting his response to question 63 of the s. 11 interview to him". It is noted that at question 63 in

his s. 11 interview the applicant was asked: "Did other people know you were gay?" To this the applicant replied: "I kept myself to

myself, I didn't let other people know, I didn't know what gay meant." The court finds it difficult to comprehend how the applicant's

claim to be an unwilling participant in the incident could be undermined by his admission that he had found his neighbour attractive.

Further, it does not follow that the applicant's behaviour towards his neighbour prior to the incident contradicted a statement by the

applicant in his s. 11 interview that he did not make it known publicly that he was a homosexual. In my view, the Tribunal Member's

contention in this regard flies in the face of commonsense contrary to the standard set by Henchy J. in State (Keegan) v. Stardust

Victims' Compensation Tribunal [1986] I.R. 642 and is illegal.

14. An issue surrounding the content of the video or pictures which were taken on the colonel's phone was also raised by the Tribunal

Member. In this regard, the Tribunal Member found that "in light of the colonel's lack of hesitation in showing the video he allegedly

took of the act to, amongst others, the appellant's parents, the appellant's continued insistence that it was he who had been raped,

rather than the other way around becomes highly implausible." It is, at best, unclear as to what may or may not have been shown by

the colonel to the applicant's mother and while viewing the images may have clarified who the perpetrator of the act was, it is

difficult to understand how this could in some way be determinative or even cast doubt on the applicant's claim to be a gay man and

to be perceived as such in Iran. To seek to impugn the credibility of the applicant on the basis of conjecture and speculation in this

regard is unsafe and I find the Tribunal Member's finding irrational and illegal in this regard.

15. The Tribunal Member also casts doubt on the applicant's credibility in relation to a perceived conflict of evidence whereby the

applicant, in his s. 11 interview, claimed that he did not know what kind of evidence the colonel had to use against him and yet the

applicant's parents in their letter allege that the colonel showed them the images of the incident on the day it occurred. It is of note

that the applicant's s. 11 interview was conducted on the 2ih September 2007 while the letter from the applicant's parents setting

out their side of the story is dated 9th August 2008, almost one year later. The Tribunal Member is of the view that: "Either the

appellant's parents failed to tell the appellant about this, a scenario which is inherently implausible...or the letter and the whole

scenario is a fiction of the appellant's imagination." While the applicant confirmed at his s. 11 interview that he had been in contact

with his family since he had arrived in Ireland it is not dear what the extent, duration or content of that contact was. It would appear

therefore that the Tribunal Member is engaging in some measure of speculation in suggesting that it is 'inherently implausible' that

they failed to tell the applicant what evidence the colonel had against him. It does not follow that the failure of the applicant to

mention that the colonel had video evidence (about which he may or may not have been aware at the time of his s. 11 interview)

results in the whole scenario being a "fiction of the appellant's imagination." In any event, despite my misgivings, it does not appear

that the Tribunal Member makes an express finding on this issue.

16. The Tribunal decision goes on to cast doubt on evidence given by the applicant that he never told his father about his sexuality

and that the other members of his family were also unaware of it and states that this "flies in the face of the other evidence

presented by the appellant". In this regard, it should be noted that it appears on the face of the letter written by the applicant's

parents that the applicant had spoken to his father and had told him that he was wrongly accused. It does not appear that the issue

discussed was the applicant's sexuality, but rather the focus was on the incident that occurred between the neighbour and the

applicant. The Tribunal Member has erred by speculating that the applicant had in fact discussed his sexuality with his parents and

family in this regard.

17. A significant criticism was made by counsel for the applicant in respect of the manner in which the Tribunal Member dealt with the

evidence of the witness called on the applicant's behalf and that insufficient weight was given to same. While it is true to say that

the evidence of a witness is not necessarily determinative of an applicant's claim, it must be properly assessed and taken into

consideration. In this regard the Tribunal Member notes: "When the Tribunal asked the witness directly if he thought it was at all

possible that the appellant may have been pretending to be gay, he stated that he was at a loss as to why anyone would pretend to

be gay. It was pointed out to him that such a stratagem would not be at all unusual for the purposes of fabricating or bolstering a

bogus asylum claim. This seemed to never have occurred to him previously. One must approach this witness's opinion on the

appellant's sexuality with a degree of caution therefore." However, on viewing the solicitor's attendance note of the Tribunal hearing

it appears that the above statement by the Tribunal Member is a mischaracterisation of the evidence of the witness. The attendance

note records that when the witness was asked whether he thought the applicant was genuinely homosexual or trying to convince

him, he sated: "[I] Have asked myself [the] same question a number of times. Yes I would know. I cannot think of [a] single instance

I felt he was in any way trying to convince me he was gay. I have known a lot of people from Asia, School of Oriental and Africa

Studies, known gay men from Central Asia. I am not unfamiliar with people from this culture. I'm absolutely convinced A. is not a

straight man...This is clearly an obvious context where this could happen. I've been in hour after hour where he's in severe emotional

distress. I've put a lot of my time over [the] last five years supporting this guy. I wouldn't be doing this if I thought he was a straight

guy." It would appear that by mischaracterising the evidence of the witness the Tribunal Member has erred in failing to fairly weigh

the evidence and give it sufficient weight in the assessment of the applicant's claim.

18. The Tribunal Member also makes adverse findings in respect of the applicant's narrative in respect of his travel details. The

Tribunal is of the view that the applicant was not forthcoming about his travel details and that by fleeing the truck in which he was

travelling without communicating with the driver or asking him where he was, constituted "precipitous behaviour" which "suggests that

the appellant knew where he was and his alleged ignorance of his travel details is not accepted as plausible."' Further, the Tribunal

Member states that the applicant's contention that he: had never communicated with any of the drivers contradicted what he said at

his s. 11 interview. On viewing the text of the s. 11 interview, it appears that the: Tribunal Member has erred in mischaracterising the

evidence of applicant. When asked "Did you ask [the driver where you were]?" the applicant is recorded as answering "No, there was

no chance he told me to get into the other lorry & gave me a plastic bag with items to help me live for the next few days in both

lorries." When asked: "Why didn't you ask him when you were in the process of changing vehicles?" the applicant replied: "It happened

so quickly there was no chance for me to speak." It also appears that in reaching his conclusions in relation to the applicant's

narrative in respect of his travel details, the Tribunal Member failed to take adequate account of the letter from Mr. McGrath and his

family which was highly corroborative in nature and carne from a 'good Samaritan' who had aided the applicant whom he had come

across in a distressed state near the Nil in Wicklow. Such pertinent and corroborative documentary evidence, so often absent in an

asylum applicant's narrative of their travel to the State, required an assessment more than a mere recording that it had been

"considered". I find that the Tribunal Member has erred in failing to rationally analyse and fairly weigh this evidence.

Conclusion:

19. In the view of the court, the error in the manner in which the Tribunal Member assessed the credibility of the applicant and

thereafter concluded that the applicant was not a homosexual from Iran is sufficient to warrant the order of certiorari in its own

right. With regard to the other complaints raised by the applicant, I agree with the submission of the respondent that as the Tribunal

process is a consideration of the asylum claim de novo, the applicant cannot succeed with the claim that he received no indication

that the question of his homosexuality would be re-opened by the Tribunal. On the contrary, it was clear to all that the issue of the

applicant's homosexuality was the core issue at the Tribunal. The selective use of the Jansen & Spijkerboer report by the Tribunal and

the failure of the respondent to comply with the terms of s. 16(8) Refugee Act 1996 are also issues raised on behalf of the applicant.

I am of the view that while there appears to have been a breach of the terms of s. 16(8) Refugee Act 1996 owing to the failure to

indicate to the applicant the report later relied upon by the respondent, the applicant has not suffered or pointed to any particular

prejudice as a result. In this instance and on the terms of this particular case, the breach is not sufficient to result in the Tribunal

decision being quashed on that basis alone.

20. As regards the selective use of the report, it would appear that the Tribunal Member has focused on certain passages over others

in seeking to establish at the outset a framework within which to adjudicate the applicant's claim. It would appear that the Tribunal

Member in endeavouring to do so may have slipped into error as it appears that he failed to mention that the key part of any

applicant's claim in such cases, as highlighted in the report, is his or her self​ identification as an LGBTI. As Hogan J. in SA (Algeria) v.

Minister for Justice, Equality and Law Reform [2012] IEHC 78 remarked: "Sexual orientation is moreover an intrinsic and essentially

immutable feature of human identity: see, e.g., the comments of Ryan J. in MA v. Refugee Appeals Tribunal, High Court, 12th

November, 2010, and those of Smyth J. in E v. Refugee Appeal Tribunal [2011] IEHC 149. It is not simply a question of performing

physical sexual acts with a member of the same sex as distinct from a member of the opposite sex: it is rather a defining feature of

that very identity. We know from the work of Freud, Jung, Kinsey and others that sexual orientation defines key aspects of the

individual's more general orientation to the world around them." It was incumbent on the Tribunal Member to highlight that both an

applicant's credibility and the narrative of self-identification as a gay man are relevant considerations which should be taken into

account in assessing such a claim. Finally, I am of the view that the Tribunal Member did consider the applicant's fragile mental health

state in the assessment of his claim and I agree with the respondent's submission that no 'lightening' in the burden of proof placed

upon the applicant is applicable in this particular case.

21. Having reached these conclusions and this being a 'telescoped' hearing, I hereby formally grant leave to seek judicial review and I

grant an order quashing the decision and remitting the matter to be re-heard by the Tribunal. I also direct that a copy of this

judgment be placed on the file, at the election of the applicant.