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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M. (V.) v. Refugee Appeals Tribunal & Ors [2008] IEHC 142 (8 May 2008)
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Cite as: [2008] IEHC 142
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Neutral Citation No: [2008] IEHC 142
2006 No. 986 J.R.
BETWEEN
APPLICANT
RESPONDENTS
Extempore Judgment of Mr. Justice John MacMenamin delivered on the 8th day of May, 2008.
The central issues in this case are:
(i) as to the manner in which the Refugee Appeals Tribunal should deal with and weigh country of origin information;
(ii) whether the Tribunal is obliged to deal with each item of such evidence in its determination;
(iii) whether the Tribunal is entitled to weigh and select relevant evidence even if there may be conflicting information in such material;
(iv) how such material should be weighted in its applications to the facts of the case. The background will be set out briefly.
The applicant in these proceedings is a Ghanaian national. She applied for asylum within the State on 25th September, 2005. The Refugee Applications Commissioner recommended that she should not be declared a refugee. She was found to lack credibility. The Commissioner had regard to the fact that she had not sought State protection which was found to have been available.
The applicant appealed against this recommendation by notice of appeal dated 15th March, 2006. The Refugee Appeals Tribunal refused to allow the appeal. The applicant seeks relief by way of Judicial Review to quash the decision of the Tribunal.
In essence, the applicant contends that the Tribunal erred in law in not giving proper consideration to relevant evidence on the grounds that:
(a) the Tribunal findings in relation to the availability of State protection for persons wishing to avoid female genital mutilation (fgm) or Trokosi slavery were made on the basis of selective use of country of origin information without regard to the adequacy of State protection deemed to be available and without any reason for the rejection of the explanations given by the applicant;
(b) the Tribunal had acted in breach of fair procedures in basing its decision on the peripheral issue of the applicant's travel from Ghana to Ireland;
(c) the Tribunal had erred in law in failing to assess the applicant's claim in the light of country of origin information;
(d) the Tribunal had failed to make any findings on significant elements of the applicant's claim including her fears resulting from being subjected to forced marriage on the death of her sister from female genital mutilation.
It was further contended that the Tribunal erred in law in foreclosing on speculation relating to the applicant's exposure to persecutory risk if returned to Ghana.
The applicant was born on 16th May, 1987. She stated to the Tribunal that she was reared by her paternal aunt following the separation of her parents. She stated that in November, 2003, her father took her to his home. He had previously arranged a marriage for the applicant's sister and accepted cattle and land as a dowry. It was stated to the Tribunal that the applicant's sister was circumcised in preparation for the marriage and died as a result. It was further stated that both forced marriage and female genital mutilation are acceptable practice as tribal customs. The applicant claimed that her father had decided that she should now take the place of her sister.
As has been pointed out in many authorities, credibility is, in the first instance, a matter to be determined by the Commissioner and by the Tribunal on appeal. The Court may only intervene in the event that there is demonstrated an error in law. This Court is not entitled to place itself in the position of a Tribunal member who has the opportunity of hearing the evidence at first instance and also in dealing with the question of credibility.
The Tribunal stated in the course of the decision that the notice of appeal and the grounds thereof together with all supporting documents or records, and, all documents submitted to the Commissioner and all country of origin documentation were considered in the course of the appeal. The latter notified the applicant of the unfavourable determination of the appeal also indicated that all relevant matters were taken into account.
Put simply, the applicant contends that there was material before the Tribunal member which might or should have led the decider to reach a different conclusion in relation to the issues which had been outlined earlier.
It will be necessary to consider the material which was before the Tribunal. This can conveniently be dealt with by reference to specific points identified by Ms. Boyle, S.C. in the course of her careful submissions on behalf of the applicant and on behalf of the respondent by Ms. Farrell, B.L. Prior to doing so however, it is apposite to refer to a number of authorities which establish guidelines in this area.
In G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418, Hardiman J. stated:-
"A person claiming that the decision making authority has, contrary to its express statement, ignored representations which it had received needs to produce some evidence, either direct or inferential, of that proposition before he could be said to have an arguable case." (page 426 – 427).
In Banzuzi v. Minister for Justice, Equality and Law Reform, (Unreported, High Court, Feeney J., 18th January, 2007) that Judge held the Tribunal was not required to record every aspect of the evidence on the decision. He stated:-
"It is contended for on behalf of the Respondents that there is no obligation on a decision maker to refer to every aspect of evidence or to identify all documents within its written decision. That is a correct statement of the law."
In Faibou v. Zaidan and Ors. (Unreported, High Court, Dunne J. 2007) (2005 No. 1255 J.R.) that Judge observed, having cited the passage in G.K.,
"There may be cases in which it could be inferred from the omission of a reference to a significant fact or document in the course of a Tribunal decision that the same had not been properly considered or evaluated. However, there must be some evidence to support such a contention. In the present case the respondent has expressly stated the various matters he took into consideration. There is no evidence direct or otherwise to contradict the assertion of the respondent in the course of his decision. In essence, it seems to me that the crux of this case is that the applicant, not surprisingly, does not like the manner in which the Tribunal has considered and evaluated all the evidence before him. Nonetheless, there is nothing before me of any kind to show that the consideration and evaluation of the evidence and submissions before the Tribunal was in any way flawed. As has been pointed out over and over, it is not for the Court to weigh and consider and evaluate the evidence before the Tribunal member but rather to consider whether the process by which the Tribunal member dealt with the application before him was flawed procedurally…." (emphasis added).
In DVTS v. Minister for Justice, Equality and Law Reform (High Court, Edwards J., 4th July, 2007) judicial review was granted because of what was held to be insufficient regard to country of origin information. The judgment should be understood in its factual context which was clearly outlined and explained by the judge.
The applicant in that case had given substantial evidence with regard to torture in his home country (Cameroon). Medical evidence had been submitted to the Tribunal in support of the applicant's contentions. A medical report submitted to the Tribunal contained detailed material regarding the mistreatment which the applicant claimed he had suffered. Importantly, the injuries described, "could be related to the history of the various physical abuses" which the applicant had reported, although other injuries might not have been. There were specific scars identified which were considered to support the history given by the applicant. Edwards J. pointed out in the course of his judgment that the medical material before the Tribunal could be characterised as "highly consistent with the physical abuse and/or torture alleged". (Emphasis added). The Tribunal had recorded erroneously that the injuries in question were merely "consistent" with the physical abuse of the torture alleged. The distinction between the two findings to the decision is vital. In the case of the first, ("highly consistent") in accordance with accepted definitions there could be few other possible causes for the injuries; in the case of the second, (merely "consistent") such finding would be "non-specific" and there would be "many other possible causes". In its context, therefore, the error of fact which was made by the Tribunal member was properly found by the judge to be a "significant error of fact in assessing the credibility of the applicant". This occurred in the light of his further conclusion that the Tribunal decision was flawed in that there appeared to have been no meaningful attempt on the part of the Tribunal to asses the applicant's claim of having been tortured, in the context of important background information as to the country of origin and of a further finding that the Tribunal had been "selective" in the material that it relied on in arriving at a conclusion that the objective element for a well founded fear as defined in the Geneva Convention as amended by the New York protocol and as further outlined in the Refugee Act, 1996, (as amended) had not been established by the applicant. On those facts, the judge properly concluded that it had been incumbent upon the Tribunal to engage in a rational analysis of any conflict in evidence on country of origin information that would justify its preferment of one view over another on the basis of that analysis. The Case should be seen in the light of the stark contrast between highly relevant documentary material and evidence essential to the issue before the Tribunal member being ignored or set at nought and supported by the reliance on other material. This required that the reasons for preferring some material over others should be rationally justified. But such requirement was predicated upon the dramatic nature of evidence before the Tribunal. The material regarding torture was (or should have been) of a vital nature to the determination. But the decision in DVTS must not be misunderstood, where a flawed primary finding was supported by a flawed and irrelevant process of selection of material for secondary findings. A clear inference can be drawn. It was not in any sense a departure from the principles outlined earlier in the Supreme Court authority in G.K. v. the Minister for Equality, Justice and Law Reform or Faibou. To decontextualize the decision is to entirely misunderstand it. There was evidence before the court in DVTS from which the essential inference led inexorably to the conclusion that essential facts or documents "had not been properly considered or evaluated".
Such evidence may not be drawn merely by the Tribunal member, having heard evidence placing greater weight on certain item of evidence over others. The threshold for the inference is higher than that. The evidence must lead logically and cogently to the inference and allow for no other conclusion on the probabilities. There is no obligation to refer to all the documentation in detail or totality of the evidence. The authorities clearly establish this fundamental distinction between the role of a decision maker and that of Courts in Judicial Review. Absent evidence from which such clear inferences may be drawn, a Court cannot on review be required to pick and choose as to the relevance or materiality of evidence identified by the Tribunal member. To do so would be to supplant the role of the Tribunal. There must be clear demonstrable evidence from which it may properly be inferred that the Tribunal "ignored" evidence which was essential to the determination. Judicial Review may not be granted simply upon the basis that certain materials were preferred by the Tribunal member to others.
Feeney J. in Banzuzi v. Refugee Appeals Tribunal (High Court, Feeney J., 18th January, 2007) observed that:-
"The fact that only certain documents were quoted in the decision does not and cannot lead to a determination that all the documents were not considered."
Here there is an express statement to the contrary effect in the determination. The determination specifically recites that all country of origin information was considered.
The weight which a decision maker puts on a particular piece of evidence is a matter for that decision maker; Baby O. v. Minister for Justice, Equality and Law Reform 169 – 181.
In O.A.A. v. the Minister for Justice, Equality and Law Reform (Unreported, High Court, Feeney J., 9th February, 2007) that Judge observed:-
"The Courts must pay due deference and regard to an adjudicator. Part of that is a recognition that it is not the courts function to dissect, parse or disassemble the written decision but rather to look at it in the round. Excessive concentration on a particular phrase or word can lead to an incorrect approach at variance with the requirement to consider the full context and meaning of the written decision."
Ultimately DVTS must be seen in the context of the important observation of Edwards J. that country of origin information put before the Tribunal was described as:-
"clearly convey(ing) a totally different picture from that referred to in the U.K. fact finding commission to Cameroon 2004 Report",
which report was found to have been based on apparently anecdotal evidence. Edwards J. observed that there was:-
"Overwhelming evidence from the country of origin that in recent years the torturing of political dissenters by the police and security services in Cameroon was both endemic and systematic. Moreover, several of the sources confirmed the prevalence of the specific type of torture to which the applicant claimed to have been subjected….This important information does not appear to have been taken into account by the second named respondent in assessing the credibility of the applicant."
In effect, the Tribunal Member in DVTS has made a determination (a) by a misstatement of vital medical evidence in a highly material way; and (b) in preferring apparently anecdotal evidence over overwhelming evidence that torture by State agent in the Cameroon was not only endemic and systematic, and that the evidence of that torture was highly consistent with the applicant's own evidence. (Emphasis added)
The use of the adjective "overwhelming" is not to be ignored. To do so is to misunderstand the entire nature of the decision so clearly expressed.
Counsel referred to specific categories of documentation as having been before the Tribunal. But none of that material was comparable of that in DVTS. Certainly there is nothing "overwhelming". The material did not, and could not, lead to any evidential inference.
There was a medical report from the Rape and Sexual Abuse Centre in Waterford which the Tribunal found did "not contain any extra information over and above the applicant's evidence to the Tribunal". This dealt with the applicant's account of the events in Ghana but did not make any clinical findings. The issue of State protection was raised in the s. 13 report. It was noted that the applicant had not sought State protection. While the country of origin information expressly relied on by the Tribunal was a U.S. State Department Report 2005 and a U.K. Home Office Report of 2005, the Tribunal stated that it considered all of the country of origin information. In fact, if necessary, one can see a clear rationale as to why some evidence was preferred. It is dealt with later. It is not for this Court to make fine distinctions as to whether the material contained in the two reports of 2005 were obtained in that year or the previous year. To do so would be to embark on precisely the process which, it has been established, lies within the domain of the Tribunal. It is to parse and analyse.
There was evidence before the Tribunal that a woman and juvenile unit of the police in Ghana had been set up specifically to handle cases including child abuse and crimes against children and that that unit (or its successors) increasingly investigated and prosecuted sexual abuse of minors. There were press reports that such cases ending in lengthy prison sentences had become routine.
Both the UK Home Office Report and the UK State Department Report found no evidence that a person who may have been subjected to the Trokosi system could not seek and obtain adequate State protection. The State protection which the Tribunal found to be available to the applicant was not an isolated example of State protection.
I refrain from going through in further detail each of the reports identified and summarised by counsel in the course of her argument because by doing so it would be to fall precisely into the trap outlined, that is to say trespassing on the role of Tribunal in analysing, weighing and selecting apposite evidence to the decision. Such a process by the Tribunal may involve a rational exclusion or inclusion of material in the determination. Suffice it to say that the preponderance of the documentary material downloaded and relied on regarding the country of origin ranged from the year 1999 to 2005. It was not demonstrated to be closer in time or circumstance than that relied on by the Tribunal. It in no sense could give rise to the necessary inferences to ground Judicial Review. As a matter of fact, in this case there was ample material before the Tribunal member upon which reliance could be placed to read its determination as to the availability of State protection and the fear of persecution.
The Tribunal member specifically referred to material, including country of origin information, adduced as evidence. This, in itself, is sufficient in these circumstances to satisfy the requirements outlined earlier. No material has been placed before the Court which would allow it to draw an inference that these matters had not been considered by the Tribunal. In fact, what the Court was invited to do was to assess the weight and selection made of the material. This is an impermissible procedure in Judicial Review. The material, in fact, did not suggest that direct evidence was preferred over anecdotal evidence. There was no material which painted "quite a different picture" from others such as would lead to clear inference. Indeed, some of the materials relied on by the applicant were, at best, tangential. They included a document entitled "Ghana Women's Issues" (unsourced and undated); a BBC News Report (dated 8th February, 2001), and a further Human Rights' brief document (dated 1999). Further documentation relied upon was published for charitable purposes and therefore would not have the authorative status necessary to constitute reliable evidence. There were newspaper reports or material which do not specifically relate to the issues for determination before the Tribunal. These would be of dubious assistance as to events in 2004 and 2005. Even in weighing evidence, they would be of lesser value than information from authoritative sources gathered in much closer proximity in time to the applicant's departure from Ghana in 2005.
Two other decisions are relied on in the course of argument by the applicant. Both of these were decisions relating to applications for leave to seek Judicial Review. I do not think it apposite to rely on decisions made in leave applications as being apposite in a substantive hearing such as this. The threshold applicable in leave applications is purely as to whether substantial grounds have been made out. This is quite different from the standard of proof applied by the Court in this, substantive hearing.
The application for Judicial Review will be declined.