Judgment Title: R O & Anor -v- Minister for Justice & Ors
Neutral Citation: 2012 IEHC 573
High Court Record Number: 2008 972 JR
Date of Delivery: 20/12/2012
Court: High Court
Composition of Court:
Judgment by: Mac Eochaidh J.
Status of Judgment: Approved
NEUTRAL CITATION 2012 [IEHC] 573
THE HIGH COURT
[2008 No. 972 J.R.]
R O (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND A O)
THE MINISTER FOR JUSTICE AND EQUALITY AND MARGARET LEVEY SITTING AS THE REFUGEE APPEALS TRIBUNAL
JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 20th day of December, 2012
1. This is an application for judicial review of a decision of the Refugee Appeals Tribunal refusing refugee status to an infant applicant because of the lack of credibility of her mother. The issue for decision in this case is whether the Refugee Appeals Tribunal expressed adequate reasons for rejecting credibility. Leave to seek judicial review was granted by O'Keefe J. on 1st May 2012 on the following ground only: "that no adequate reason has been provided by the Refugee Appeals Tribunal for reaching its conclusion on the Applicant's credibility and as a result the decision is invalid".
2. The infant applicant was born on 9th October, 2006 in Ireland and her mother, who was born in 1978 in Nigeria, claimed refugee status for her daughter based on an apprehension that her husband and his family would harm the infant applicant if she returned to Nigeria.
3. The Office of Refugee Applications Commissioner (ORAC) made a report on the infant applicant's claim for refugee status and gave a negative recommendation. The applicant's mother fears persecution from her husband, his family and people in his village who, it is said, wish to kill her because of a sexual encounter with her brother in law, perceived by her husband as evidence of an affair but described by her as rape. Her claim was recommended for rejection as there were concerns about her credibility which cumulatively "served to undermine the applicant's claim that she has a well founded fear of persecution based on Convention grounds".
4. Following the refusal of the infant applicant's claim for refugee status, her mother, on her behalf, appealed to the Refugee Appeals Tribunal (the "Tribunal") and it is that decision which is sought to be impugned in these proceedings. Section 3 of the Tribunal's decision describes the applicant's claim and no issue is taken with the accuracy of the statement of the applicant's claim in these proceedings.
5. The claim is stated by the Tribunal in the following terms:-
6. It is the alleged deficiencies in section 6 of the decision of the Tribunal which are at issue in these proceedings. The Tribunal stated that it did not accept that the infant applicant's mother had a genuine fear of persecution "for the following reasons":
Her evidence was that the brother (the rapist) returned to the house and let himself in with his key as he had to go to work. When it was put to her that it highly implausible that she would remain in a house with a rapist for a number of weeks (or indeed that he would even return) and not even consider going to the police she said that he would not have done it again as he had been caught. When it was put to her that this bizarre explanation was not credible she said he used his key and went to his room and she didn't see him that much. It has to be said that this is equally bizarre."[sic]
7. The second reason given by the author of the Decision is as follows:-
8. The third reason for rejecting the applicant's credibility appears to be comprised in the following text:-
9. The fourth reason given is expressed as follows:-
10. The fifth reason for the author's doubt as to credibility is expressed as follows:
11. The sixth reason given is as follows:-
12. The seventh reason given is:-
13. The applicant has submitted that an error entered the decision making process because the infant applicant's mother's credibility was assessed solely by reference to her personal credibility without any analysis whatsoever of objective country of origin information.
14. This submission seems to ignore the fact that no country of origin information was submitted on behalf of the infant applicant. In addition, the persecution or harm feared was not connected to conditions in Nigeria generally but instead arose from personal and domestic circumstances. I should also say that this submission appears to go beyond the matter in respect of which O'Keeffe J. granted leave in this case. Leaving these concerns aside in case they are misplaced, I now address this submission.
15. Reference was made on behalf of the applicant to the judgment of Keene L.J. in Y v. Secretary of State for the Home Department  EWCA Civ 1223 and H.K. v. Secretary of State for the Home Department  EWCA Civ 1037, and in particular to the judgment given by Neuberger L.J. who, at paras. 28 and 29 said:-
29. Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugees Status (1991) (at p. 81):-
Assessing Adequacy of Reasons for Credibility Findings
18. While many 'reasons' cases deal with the absence of reasons, a subcategory of cases in this area deals with the cogency of reasons. I adopt as a reliable shortcut the pithy summary of this law in "Administrative Law in Ireland" (Hogan & Morgan) (4th Ed.) at para. 14-141, p. 684 where the learned authors say:-
20. In Memishi v. The Refugee Appeals Tribunal (Unreported, Peart J. 25th June 2003), Peart J. quotes with approval from a decision of the Court of Appeals in the 9th Circuit entitled Diaz-Marroquin v. Immigration and Naturalisation Service (2001) U.S. App. Lexis 2352, as follows:
(6) The reasons must relate to the substantive basis of the claim made and not to minor matters or to facts which are merely incidental in the account given."
Herbert J. notes as follows:
(ii) Reasons must be specific, cogent and substantial (see Memishi v. The Refugee Appeals Tribunal (supra) and Diaz-Marroquin v. Immigration and Naturalisation Service (supra).
(iii) Reasons must be drawn from correct facts and must bear a legitimate connection to the adverse credibility findings (see I.R. v. The Minister for Justice, Equality and Law Reform (supra)).
(iv) Reasons must relate to the substantive basis of the claim and not to minor matters. (see I.R. v. The Minister for Justice, Equality and Law Reform (supra)).
28. In addition to the principles on adequacy of reasons which emerge from case law, I observe that when a court is reviewing the adequacy of reasons for credibility findings, it is not conducting the same level of scrutiny of the adequacy of reasons as it might undertake if it were reviewing a substantive decision, such as a decision to grant a planning permission or grant a mobile phone licence. As I have observed earlier, credibility findings in an asylum application are subordinate decisions on the pathway to the substantive decision - to grant or withhold international protection.
29. I should also say that reasons, self-evidently, must be rational in the traditional public law sense. That case law does not include rationality as a requirement for adequacy of reasons on credibility findings is probably because such a defect would attract a challenge to the rationality of the resulting substantive decision rather than an attack on the subordinate decision as to credibility. Thus, if the RAT were to say "I don't believe the applicant because she has blue eyes", the challenger would be more than likely to say that the resulting decision refusing international protection was irrational rather than limit the challenge to a plea that an inadequate reason had been given for rejecting credibility.
30. In view of the foregoing, I approach the review of the adequacy of reasons in this case by asking the following questions:
(ii) If so, were the reasons intelligible in the sense that the reader/addressee could understand why the finding was made?
(iii) Were the reasons specific, cogent and substantial?
(iv) Were they based on correct facts?
(v) Were they rational?
Returning now to each of the credibility findings, I assess them as follows.
31. The first credibility finding related to the Tribunal's view as to the implausibility of the cohabitation for a number of weeks of the applicant and the man who raped her, and the implausibility of the applicant not even considering going to the police. The Tribunal found the applicant's explanation (that the rapist brother-in-law had a key to the house and the applicant's claim that she did not see him) implausible.
32. Clear reasons are expressed for this disbelief. The Tribunal opined that it was unlikely that the applicant would share accommodation for a number of weeks with the man who raped her. This reason was intelligible in the sense that a reader may readily understand the reason for the disbelief. The reason is specific and cogent, in that it is logical and clear. It is substantial in as much as it relates to a central part of the applicant's narrative. There is no suggestion that the finding is based on anything other than correct facts, and on any analysis, the reason is entirely rational. As to the last point, it needs hardly be repeated that I might not have come to the same conclusion as to the Implausibility of a person living with her rapist, but that is not, of course, the test for rationality.
The Second Credibility Finding
34. In my opinion, clear reasons were stated for the incredulity of the Tribunal. The Tribunal thought that it was highly unlikely (in their words, "preposterous") that the parties involved in the saga (the applicant claiming to have been raped, the brother-in-law alleged to be having an affair with her, and the enraged husband) would undertake a journey for an unstated reason to visit the enraged husband's parents.
35. The reasons given are intelligible in that a reader or addressee can readily understand why the Tribunal is incredulous. The reasons are specific and cogent, being clear and logical. They are substantial in the sense that they relate to a central part of the applicant's narrative. It seems to me that the reasons are based on correct facts, though I had some concern at the Tribunal's characterisation of the attitude of those undertaking the journey as "happily" embarking on a five-hour journey. I could not find evidence that this adverb accurately describes their attitude, though it would appear that the journey was undertaken voluntarily by all the participants and perhaps the adverb was used to convey this meaning. In any event, if this is a mistake, it is of a trivial nature. Finally, I find that the reason for the disbelief is entirely rational.
The Third Credibility Finding
The Fourth Credibility Finding
38. The reason is specific and cogent in that it is clear and logical. It is substantial in that it relates to a central part of the applicant's narrative and there is no question but that it is based upon the correct facts. In addition, this reason is rational.
The Fifth Credibility Finding
The Sixth Credibility Finding
The Seventh Credibility Finding
42. I conclude that adequate reasons were given for each of the credibility findings and I therefore refuse the applicant the reliefs she seeks. Given the minute scrutiny of the reasons for credibility, I should add that though in this case each of the findings was upheld, this approach should not be understood as requiring each such finding to be upheld by the High Court in order to sustain the legality of a decision. A decision maker could err in one or more findings as to credibility and the High Court might, notwithstanding such error, conclude that overall, the decision on credibility is lawful. It is, in that most used, hopefully not overused, phrase, a question of fact and degree in each case.