Judgment: 2015-07-31 · Court archive

High Court removes finding that would have denied asylum applicant an oral appeal

The court left the Refugee Applications Commissioner’s rejection of the asylum claim in place but ruled that its separate finding under section 13(6) was unlawful.

The High Court · [2015] IEHC 599

Who, what, where, when and why

Who
  • The Refugee Applications Commissioner (Respondent)
  • Colm Mac Eochaidh (Judge)
What

The court left the Refugee Applications Commissioner’s rejection of the asylum claim in place but ruled that its separate finding under section 13(6) was unlawful.

Where

Places mentioned in the report

  • Ghana
  • Bawku
  • Ireland
When

Judgment:

Why

Reasons reported in the judgment

The High Court ruled that a finding which would have limited an asylum applicant’s appeal to a paper hearing was unlawful, directing that the finding be removed while leaving the rest of the Refugee Applications Commissioner’s decision in place.

The High Court ruled that a finding which would have limited an asylum applicant’s appeal to a paper hearing was unlawful, directing that the finding be removed while leaving the rest of the Refugee Applications Commissioner’s decision in place.

In an ex tempore judgment delivered on 31 July 2015, Mr Justice Colm Mac Eochaidh rejected the applicant’s argument that the Commissioner had acted unlawfully by not deciding whether he was gay. The judge said decision-makers were not required to determine every aspect of an asylum claim where another necessary element failed. The Commissioner had rejected the applicant’s credibility, so it did not matter to that decision whether he was gay, the judge said.

The judgment records that the applicant said he was born in Ghana in 1978 and fled because he feared persecution as a gay man. The Commissioner’s officials rejected his account of living in Bawku, citing his lack of knowledge of the area, its language and festivals. They also rejected his account of an incident involving his boyfriend, citing inconsistencies, and his account of how he arrived in Ireland. The decision included findings based both on the substance of his account and on his demeanour during interview.

The applicant’s second challenge concerned the Commissioner’s finding under section 13(6)(b) of the Refugee Act 1996. That finding classified the application as manifestly unfounded and meant an appeal to the Refugee Appeals Tribunal would be on the papers only, according to the judgment.

The judge said the statutory finding required consideration of whether false, contradictory, misleading or incomplete information concerned an important enough part of the account to justify treating the application as manifestly unfounded. Here, the decision included demeanour-based credibility findings. The judge said an oral hearing was the only way for the applicant to challenge those findings by giving evidence again for independent assessment.

The court could not determine whether the Commissioner’s rejection of credibility rested exclusively or predominantly on demeanour or on problems with the logic of the account. But because part of the decision rested on demeanour, removing access to an oral appeal would breach the effective-remedy obligation under article 39 of the Procedures Directive, the judge held.

The court directed that the section 13(6) finding be severed. The rest of the Commissioner’s decision remains in place and may proceed to appeal before the Tribunal. The court also awarded the applicant costs, including reserved costs, to be taxed if not agreed.

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