Ireland - M.A.I. -v- Minister for Justice Equality and Law Reform & ors. [2010 825 JR]

The High Court focused on a number of key questions in its decision:

1. Was there an absence of a proper interpretation service, which might warrant the quashing of the Tribunal member’s decision?
2. Did the Tribunal Member fail to give due regard to country of origin information and identity documentation submitted by the applicant?
3. Was the Tribunal Member flawed in his rejection of the applicant’s explanation for not seeking asylum in a safe first country (in this case Turkey)?

These questions were considered by the Court as follows:

1. The applicant clearly indicated that he required interpretation in the Kurdish-Badini dialect at the earliest possible stage in the process; however, the interpreter who was provided on the day of the applicant’s Tribunal hearing spoke a different dialect (Kurdish-Sorani) to that of the applicant. This was brought to the Tribunal member’s attention, who refused to adjourn the proceedings, despite the fact that a Kurdish-Badini interpreter had been present at the applicant’s prior s.8 and s.11 interviews.

 In this regard, the High Court submitted that the Tribunal was obliged to ensure that the same level of interpretation services are afforded to the applicant throughout all stages of the asylum process. Considering that the Tribunal Member, in his decision, acknowledged that the interpreter’s dialect “may not be exactly the same and it was possible that some words may differ slightly”, the High Court could not accept that the decision to proceed with the hearing satisfied the requirements of s.11(d) of the Refugee Act 1996 to afford the applicant a proper and fair hearing. Furthermore, the High Court submitted that proceeding with the appeal with a Kurdish-Sorani interpreter may have led to the Tribunal member making an erroneous decision. The Court acknowledges that the applicant challenged the Tribunal Member’s negative credibility finding on the basis that the account he gave to the Tribunal Member was not consistent with that provided to the Commissiner, despite the applicant maintaining that he gave the exact same testimony at both hearings. The Court insisted that it had to allow for the possibility that an error in interpretation could account for this discrepancy, finding that the infirmity in the quality of interpretation warranted the quashing of the Tribunal Member’s decision.

In terms of the Court’s ruling on interpretation the Judge noted that “central to the ability of a decision maker to make a rational and informed assessment of evidence tendered in the course of a hearing is the decision maker’s ability to receive that evidence through the clearest and most direct channel…where the person giving evidence does not speak the language of the decision maker, either adequately or at all, the service of an interpreter (who is versed in the languages of both) becomes a necessary and indeed mandatory tool” (Para 25).

2. The applicant challenged a number of the Tribunal Member’s negative credibility findings on the ground that they ran counter to the country of origin information that the applicant had submitted in aid of his appeal. The Tribunal Member submitted that his credibility findings were of such a fundamental nature that he was entitled to disregard the country of origin information, despite not recording what weight (if any) was placed on such documentation in his credibility assessment, which is allowed for only in exceptional circumstances. The Court found that none of the eight examples cited by the Tribunal Member in aid of his credibility finding were of such enormity that the Tribunal Member was relieved of his obligation to set out the weight he gave to the country of origin documentation presented to him. Thus, his failure to properly address the applicant’s claim in the context of available country of origin information is such that it affects the credibility conclusions to the extent that it ultimately affects the decision in the case.  

With regards to the applicant’s identity documentation, the Court examined whether the Tribunal Member dealt with the document in a fair manner as required by reg. 5(1)(b) of the EC (Eligibility for Protection) 2006 Regulations. Viewed in conjunction with the country of origin information, the identity document, which held that the applicant hailed from a governate of Iraq that was highlighted as being of particular concern in the country of origin information, should be an important tool in corroborating the applicant’s claim. However, despite the document being prima facie corroborative of the applicant hailing from a particularly dangerous region in Iraq, the Tribunal Member afforded “no weight” to the “purported” identity documents, without expressly stating the reasons for that decision, which led to a negative credibility finding. The High Court held that this was tantamount to outright rejection of the document, for which it is incumbent on the decision maker to state the reason in his decision. Merely relying on other credibility examples cannot justify the rejection where the substance of many of the other credibility issues themselves are impaired by the failure to appropriately consider relevant country of origin information. In this regard, the High Court found that the Tribunal Member’s failure to justify his disregard of the applicant’s identity document breached fair procedures.

3. In reviewing the Tribunal Member’s finding that the applicant’s explanation for not seeking asylum in Turkey due to his fear that it “would not be received favourably there” is not indicative of a well-founded fear or persecution, the High Court found that the Tribunal Member’s cursory rejection of the applicant’s explanations was flawed. It held that the Tribunal Member had an obligation, in line with previous case law on similar issues where such evidence is factored into a negative credibility finding, to examine and state expressly why the applicant felt that he could not seek asylum in Turkey.

The Court overall found that the Tribunal decision was flawed by reference to the standard of decision-making required in cases such as the present.