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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> E. (B. E.) v. Refugee Appeals Tribunal & Anor [2004] IEHC 338 (21 October 2004)
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Cite as: [2004] IEHC 338
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[2004] IRLHC 338
Record Number: 2004 No. 41 JR
Between:
Applicant
Respondents
Judgment of Mr Justice Michael Peart delivered the 21st day of October 2004:
Since this is an application for leave, and not the substantive hearing, and since I am deciding that leave should be granted, I propose to state my reasons fairly briefly, rather than deliver a substantial judgment in which all the background facts as well as the helpful arguments of Counsel on each side would be set out and considered in full. Apart from being in my view an unnecessary exercise, and one which does not advance the cause of an expeditious administration of justice, there is also a danger that what I might say in relation to some arguments could inappropriately enter upon the function of the substantive hearing.
Background facts:
The applicant was a minor at the time she entered this country as an unaccompanied minor on the 2nd July 2001. While her affidavit states that she was born on the "4th October 1984", the application form completed on arrival refers to the date of birth as "4/10/83". If the latter is correct, she was aged 17 years and 9 months upon arrival. It is accepted that she had very low literacy skills on arrival, although some progress has been made in this regard by the present time. The Social Worker assigned to her following her arrival and who assisted in the completion of the Questionnaire on 6th July 2001 describes her as "illiterate". She was interviewed just one year later on the 10th July 2002. If her date of birth is 1983, it follows that by the time this interview took place she had passed her 18th birthday and was 18 years and 9 months and was no longer an unaccompanied minor, but an adult in the legal sense of that term. If her birth date is 1984, then at the date of her interview she was still a minor being aged 17 years and 9 months, and that remained the position at the time of the RAC decision of 5th September 2002. This matter is of some significance.
But one way or another, and regardless of which date of birth is correct, by the time the matter came before the Tribunal by way of appeal from the decision of the Refugee Appeals Commissioner on the 7th May 2003, the applicant had ceased to be a minor in the legal sense of that term, and the services of the officer from the health board were terminated. This appeal was unsuccessful, and the applicant appears to have been notified of this fact by letter dated 30th December 2003.
The present application for leave to seek relief by way of judicial review was lodged on the 22nd January 2004. Taking into account the date on which the letter of notification is deemed to have been received, this application is out of time by a few days. The Respondent, through Counsel, has informed this Court that it is consenting to the necessary extension of time for commencement of this application, and given particularly the time of year during which the clock was ticking against the applicant and her legal team, this is a very reasonable attitude adopted by the respondents. There is therefore no need for me to rule on that issue, and I extend the time accordingly up to the 22nd January 2004.
One significant factor in this case is that the applicant's mother arrived in this country after the arrival of the applicant, and made a separate application on her own behalf for refugee status which has been refused. It appears from the papers that the mother's application was refused on the grounds of a complete lack of credibility. Her application was heard separately and by different personnel from those who dealt with the applicant's case. However, the applicant's application has been refused largely on lack of credibility grounds, but it is contended by Mr Saul Woolfson BL on her behalf that the process by which the decision that the applicant lacks credibility was reached is faulty and that accordingly the applicant is entitled to the relief sought.
Another significant factor in this case is the fact, which is not disputed, that prior to her flight to this country the applicant had been raped on a single occasion by a person in whose charge she was placed after her parents disappeared. The circumstances of that disappearance do not matter at this stage. A Social Worker gave evidence on her behalf as to the likely effects of this rape on her psychological and mental state, and how that might affect the applicant in relation especially as to how she could recall and recount events leading up to her arrival in this country. It is complained by the applicant that the Tribunal Member totally failed to have any regard to this evidence in arriving at her negative credibility finding since there is no mention at all in the Decision of that Member of that particular evidence.
It is also contended that the Tribunal member arrived at the conclusion that the applicant was not credible, solely by reference to the fact that in the separate application by the applicant's mother, there was a negative credibility finding against mother, and that therefore the applicant's story must also be regarded as lacking in credibility. It is contended that this has resulted in the applicant not receiving a separate consideration of her claim, and that the Tribunal Member has simply relied upon the negative credibility finding in respect of mother – a finding made by a different member of the Tribunal. It is contended inter alia that the applicant's credibility has not been independently assessed but only by reference to her mother's lack of credibility.
Other grounds of challenge are also put forward, such as that in its decision it appears that the Tribunal Member failed to have any regard for the objective element in the consideration of whether there is a well-founded fear of persecution, in spite of the provision by the applicant's legal advisers of a significant amount of country of origin information in that regard, and it is also submitted that in a number of respects, which Mr Woolfson submits are material, the Tribunal Member has made factual errors in the Decision. It is submitted that the Decision is bad.
In support of his contention that it is appropriate for this court to look at the manner in which credibility has been assessed by way of judicial review, Mr Woolfson has referred the court to the judgment of Ms. Justice Finlay Geoghegan in Bujari v. The Minister for Justice Equality and Law Reform (unreported, High Court, 2nd May 2003), as well as subsequent cases in which that judgment has been followed. There is no dispute by Ms. Barrington BL on behalf of the respondent, that it is an appropriate function of the Court to examine in an appropriate case the manner in which the Tribunal has reached its decision on credibility.
I should perhaps say at this stage that the ground upon which the applicant seeks a declaration of refugee status is, as appears in her Questionnaire, by reason of a fear of persecution resulting from her mother's alleged refusal to marry a man who succeeded her father as Chief in Kaduna, after her father had died.
It appears that her father died some years ago, and that prior to his death he had been the Chief of a tribe. Following his death, her mother was told that she had to marry the next Chief of that tribe, but she did not want to as she was a Christian. Her refusal to do so led to problems with the tribe, and there were unwelcome visits to their house by members of the tribe who harassed the family. It is stated that on one particular night many of these people came to the house with some form of weapons. The family ran out to the back garden. Her brother sustained an injury to his hand and leg. They all kept running, and the applicant says that she became separated from her mother and sister and that her brother was left behind. She says that she spent the following two days walking around the town with nowhere to stay and that she met a man in front of a church where she could get some food. This man appears to have put her in the care of another man, and this other man raped her at night. Eventually somebody assisted her to this country.
In relation to the rape, she avers in her affidavit that as a result of this incident she was and remains extremely traumatised and suffers with significant "mental stress problems" as a result. She also states that she has received assistance from social workers and project workers who have from time to time been assigned to her by the health board in order to overcome these problems, but that they still remain. She states that she becomes frightened and confused easily and has attended the Rape Crisis Centre and has exhibited a letter from that Centre which confirms that fact. There is also an averment that her appeal was not completed on the day on which it was listed because on that occasion she collapsed due to the fact that she became very distraught and distressed when she discussed the rape, and she had to be assisted from the room. She had also been accompanied by a Ms Hogan, a Social Worker, and the applicant sets out in some detail in paragraphs 17 and 18 of her affidavit the evidence given by Ms Hogan on her behalf, especially as to her level of illiteracy and the efforts she is making to improve these, but also in relation to the effect of the rape upon the applicant, one of which was that she became confused with her thoughts and became "stressed with the number and diversity of different people" to whom she was exposed in the asylum process, and that she had difficulty remembering the sequence of events, times and dates in relation to experiences suffered in Nigeria.
There is nothing in the Tribunal's decision which in any way casts doubt upon the applicant's account of being raped. It is however a fact that at her interview as opposed to the Tribunal hearing, she did not mention the rape, but this is explained in the affidavit on the grounds that the applicant felt such shame and stigma about being raped that she could not at that time talk about it in front of people whom she had never met before.
The Tribunal Member in her Decision states that the applicant's account is not credible or consistent. In the Decision the Tribunal Member states that the applicant's claim is not credible or consistent, and points to the fact that the applicant displayed a very limited knowledge of the town of Kaduna where she says she lived. It states that she could not name any main road or street in Kaduna, or where the museum was in Kaduna as well as other matters. Mr Woolfson points out that in fact in her evidence the applicant did name a main street as being Lagos Street and that there were many main streets, and that the applicant simply did not know which main street she should mention since there were many such. In relation to the museum, he points to the fact that it is not disputed that the applicant is illiterate and could not therefore reasonably be expected to be aware of the museum. There is also surprise expressed by the Member that the applicant was confused about the date of her father's death, especially given the significance of that event in relation to the alleged fear of persecution arising thereafter due to her mother's refusal to marry the next Chief.
There are many other criticisms regarding the applicant's credibility, arising from various matters such as the inability of the applicant to properly state the name of the particular cult to which her father belonged. In fact she gave a name which was not quite accurate, and some information regarding the manner of dress of the members and so on, and in this respect it is accepted that the Decision has run into factual error, but Ms Barrington says that the errors are not of a material nature such as to invalidate the decision.
Mr Woolfson has submitted that even thought the applicant was of full age by the time of the Appeal hearing, and thereby ceased to be unaccompanied minor, nevertheless she was still very young, as well as lacking any significant education and was classified as illiterate. He submits that insufficient significance was attached to these factors by the Tribunal Member in deciding the appeal.
Conclusions:
In relation to the age of the applicant, it is true that she was over the age of majority by the time the appeal was heard. Nevertheless she was still illiterate and uneducated. In my view even though she does not come within the UN Guidelines dealing with the procedures for dealing with unaccompanied minors, February 1997, and which highlight the need to look to "the best interests of the child", this applicant was nevertheless a child in every way except her actual age. She was and still is to a large extent uneducated and illiterate, and in a foreign environment, and particular care is required in dealing with her application, especially from the point of view of the benefit of the doubt and assessment of credibility. I am satisfied that while there is no evidence, and nor is it contended, that the appeal was conducted in anything other than a fair manner, nevertheless, the Tribunal member has failed to attach any significance to the evidence of Ms Hogan or indeed to consider same in any way in relation to the ability of the applicant to properly tell her story. There is the briefest of references to the rape itself, but no reference whatsoever to the evidence of Ms Hogan who gave evidence as to the effect that the rape had on the applicant. To that extent I believe that the assessment of the applicant's credibility is flawed, and it is credibility which forms the basis of the Tribunal Member's decision. Mr Woolfson has also referred the Court to material from UNHCR relating to Sexual Violence Against Women, 1995 which confirms, if indeed such be necessary at all, that some of the effects of sexual violence include an adverse effect psychologically, and which would be consistent with the evidence given by Ms Hogan. Paragraph 1.5, for example, states:
"…Even if physical injury is minimal, all victims experience psychological trauma. They may feel paralysed by terror, experience physical and emotional pain, intense self-disgust, powerlessness, worthlessness, apathy, denial and an inability to function in their daily lives. In the worst cases, they may experience deep depression leading to chronic mental disorders, suicide, illegal termination of pregnancy, endangering their lives, or abandonment of their babies. Cases of infanticide of children born as a result of rape have also been reported."
I refer to this paragraph specifically, not because the applicant has described the effect of the rape of her in a way that attempts to bring the effect of it upon her within the worst of the range of potential effects described above, but rather to emphasise the importance which must be attached to the consideration of any evidence proffered in support of an argument that the applicant has suffered some effect. In this case, evidence was given and which does not appear to have been considered in the context of its potential to impair the applicant's ability to properly articulate her story before the Tribunal. The only reference to the rape is contained in the following paragraph:
"Unfortunately the applicant was raped when fleeing from her home. This was a random criminal incident perpetrated by a man who had been entrusted by the man the applicant met in the church to assist the applicant. It was not the reason the applicant left Nigeria, nor did it constitute the source of fear which compelled the applicant to leave Nigeria."
Certainly as far as this leave application is concerned I am satisfied that an arguable and weighty ground has been put forward as to the possibility that the failure of the Tribunal Member to consider at all the possible effect on the applicant's ability to tell her story and recall events and facts might have been adversely affected by the experience of having been raped, as deposed to by Ms. Hogan, leaves the finding on credibility vulnerable to challenge.
Mr Woolfson has submitted that the decision is also open to challenge on other grounds including that the objective element in the assessment of whether there is a well-founded fear of persecution has not been engaged upon by the Tribunal. I am of the view that it is not necessary to deal with that matter at this stage, given, as submitted by Ms. Barrington, that the basis of the decision is lack of credibility largely in relation to the subjective element, and that being so, it was not necessary for the Member to go on and proceed to assess the matter by way of the objective element to that question.
If following the substantive hearing of this application, a further hearing of the appeal is undertaken, then obviously any decision arrived at on that occasion will have to be arrived at in a proper manner in the widest sense of that term.
In relation to the factual errors, such as they are, in the decision and which have been referred to by Mr Woolfson, I am satisfied that they exist in the decision, and while if they were the only cause for complaint in relation to the decision, I might not consider them to be of sufficient materiality to invalidate the decision, they count for something when looked at cumulatively with the other defect which has been identified in relation to the finding of lack of credibility.
I am also satisfied that not sufficient account, from a benefit of the doubt point of view, was taken of the applicant's particular circumstances, that is, being a person who had just attained her majority but who arrived here as an unaccompanied minor, and who was accepted as being nevertheless an illiterate and largely uneducated person.
I will therefore make an order granting to the applicant leave to seek relief by way of judicial review as follows:
1. An Order of Certiorari quashing the decision of the first named respondent dated 30th December 2003 refusing the applicant refugee status and the recommendation of the Tribunal Member dated 29th April 2003.
2. An Order of Mandamus directing that the applicant's claim for refugee status be remitted for hearing by the Refugee Appeals Tribunal at the earliest opportunity.
3. An injunction restraining the second named respondent from taking any steps pursuant to S. 17(1)(b) of the Refugee Act, 1996 to affirm the decision to deny the applicant refugee status, and/or make a proposal to deport and/or to deport the applicant.
4. Further and other relief.
5. Costs of these proceedings.
The Grounds upon which relief is sought will be those grounds appearing in the Statement of Grounds filed herein and appearing at paragraph 5, subparagraphs A(a) and (b); paragraph B(i)(iii)(iv); paragraphs E, F (as amended and set out hereunder), H and M.
Amended Ground F:
"The Tribunal Member by reason of the approach she has adopted in relation to the applicant's credibility has erred in foreclosing on the speculation necessary in relation to the issue as to whether the applicant had a well-founded fear of persecution for a Convention reason and whether there was a real chance or possibility of persecution if the applicant was refouled to Nigeria."
Approved: Peart J.