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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> K. (I.). v. Minister for Justice, Equality and Law Reform & Anor [2008] IEHC 173 (12 June 2008)
URL: http://www.bailii.org/ie/cases/IEHC/2008/2008_IEHC_173.html
Cite as: [2008] IEHC 173
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Neutral Citation No: [2008] IEHC 173
THE HIGH COURT
2006 993 JR
BETWEEN
I. K.
APPLICANT
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND RICARDO DURADO SITTING AS THE REFUGEE APPEALS TRIBUNAL
RESPONDENTS
EX TEMPORE JUDGMENT delivered by Mr. Justice Birmingham on the 12th day of June 2008
The applicant in this case is a Nigerian national born on the 16th June, 1965. He arrived in the State and proceeded to claim asylum. His application was unsuccessful at first instance before ORAC as result of which he appealed to the Refugee Appeals Tribunal. An oral hearing was held and a decision issued on the 25th July, 2006, which dismissed the appeal and affirmed the recommendation of ORAC that he not be declared to be a refugee.
The applicant now seeks leave to commence judicial review proceedings challenging that decision.
It is accepted by both sides that the question of the assessment of credibility was central to that decision and the challenge focuses on the manner in which the ORAC Member approached the issue.
The Tribunal Member was particularly forthright in stating the views that he had come to. So at various stages in his decision he described elements of the applicant's story as "implausible and wholly lacking in credibility" as "wholly lacking in credibility", "not credible" and "disingenuous and wholly lacking in credibility." Summarising his conclusions, he observed:-
"Taking the applicant's evidence in its totality I have found him to be hesitant, evasive, disingenuous and contradictory in his evidence as to its contents and presentation and I found his story to be implausible and wholly lacking in credibility."
He then went on to add:-
"I find the applicant's account most unconvincing in terms of credibility and substance."
In order to put the criticisms made in relation to the approach taken by the Tribunal Member to credibility findings in context, it is necessary to refer in outline to the case for asylum status that was being advanced.
It is the applicant's case that he is a qualified lawyer having practiced as such for some seventeen or eighteen years. He is of Igbo ethnicity and has been a member of MASSOB (Movement for the Actualisation of the Sovereign State of Biafra) and acted as legal advisor and zonal co-ordinator for that organisation. His role within MASSOB included visiting police stations and attending courts on behalf of MASSOB members. On an occasion in early 2003, he attended the central police station in Owerri, where some twenty five MASSOB members were being detained. It is suggested that the police released the detainees but arrested and detained the applicant. All told he says that he was detained for some two months and that during this period he was subjected to very severe ill treatment which involved his right leg being hoisted on an iron bar and being beaten with various implements including an iron bar, belt and baton as well as being kicked.
In December, 2005 the movement organised what was described as a "Stay at Home Protest". Around this period, on the 9th December, 2005 the applicant had occasion to attend a court. While returning to his home from there he was informed by his wife that the authorities were at their home. Acting on his wife's advice he abandoned his car in Owerri and went to the home of his cousin which was some twenty five kilometres away. But, soon thereafter, as his cousin became apprehensive and asked him to leave, the applicant moved to another address where he stayed for some three or four weeks before moving to Lagos, where he stayed from mid January to late February, before leaving the country via Lagos airport. He indicates that he was accompanied by an individual described as "an agent" who supplied him with a false passport which this agent carried and presented to the various immigration authorities on his journey to Ireland. This journey brought him through the Netherlands and then to Ireland. He states that on the journey he was able to pass successfully through the immigration procedures at each stage.
The Tribunal Member's decision was a careful and comprehensive one and involves the recitation of much of what was said by the applicant at the hearing, how the applicant responded to questions that were posed and issues that were raised with him. Having done this the Tribunal Member then comments that the evidence raised several credibility issues and he proceeded to list those in nine numbered paragraphs. In addition to these numbered paragraphs the Tribunal Member states that he had regard to s. 11(B) of the Refugee Act 1996, (as amended).
It is probably convenient if I set out the paragraphs and refer in the briefest outline to the issues that have been canvassed.
Paragraph 1. "If the Applicant was allegedly arrested in January/February 2003 and released for the reasons given by him, it is not credible the police would have released him in his alleged condition without affording him medical treatment "to avoid a scandal.""
Comment. This finding is criticised as surmise and conjecture and amounting to decision making by gut feeling. At this stage there are a very great number of decisions of this Court reviewing how decision makers in the asylum process have approached the assessment of credibility. So much so that there is little disagreement at this stage about the legal principles involved, though there can be intense disagreement as to how those principles are to be applied in practice. While the adjudicator most certainly must avoid wild conjecture, the task in which he or she is engaged, which is an unenviable one, does require an evaluation, the drawing of inferences and the application of common sense. In my view, the approach of the RAT member to the circumstances of the applicant's release from custody was one that was open to him. It involved an evaluation of the probability of the story being correct. It did not in my judgment amount to unacceptable speculation and still less, could it be described as irrational.
Paragraph 2. "The Applicant stated at his Interview that following his alleged release from detention in January/February 2003 he did not have any problems with the police. However at his Hearing today he stated that "every now and then I suffered minor assaults. I was kicked and bruised and my clothes were torn by the police". He claims to have told the Interviewer of these alleged minor assaults. His responses as to why his answer was not recorded by the Interviewer are disingenuous and wholly lacking in credibility. Significantly, the Grounds of Appeal does not state he was unhappy with the Interview as he stated at the Hearing. The Interviewer has recorded the Applicant's response when asked was he happy with the Interview. He replied "Yes, you are so civil to me" (See Page 19 of the Notes)."
Comment. There certainly seems to have been a divergence between the account of matters recorded at the interview stage and what was being said at the Tribunal hearing. Any decision maker is likely to be influenced by the extent to which a story is consistent or the extent to which a story appears to change or evolve. When an explanation is advanced for the inconsistency, and that explanation is not accepted, the interest in the inconsistency is likely, if anything, to increase. In my view it is almost beyond argument that the Tribunal Member was fully entitled to assess this element of the story in the way that he did.
Paragraph 3. "If the Applicant was a marked man as he alleges and it was dangerous for him to attend court, he, nevertheless, did so on the 9th December 2005. He could have been arrested by the authorities when leaving court if he was a marked man. Furthermore, being in the presence of the authorities, that is in court, it is not credible that the police would have called to his house and his office on the 9th December 2005 to arrest him. His evidence is wholly lacking in credibility."
Comment. Again this is criticised as speculation and conjecture. For my part I can accept that not every decision maker would have placed the same degree of emphasis as the Tribunal Member in this case did on this aspect. There must be examples in every jurisdiction where elaborate procedures are put in place for an arrest and it subsequently turns out that those procedures were unnecessary and that there was a much simpler way of achieving the objective desired. However, it is the Tribunal Member who is required by statute to assess credibility and unlike this Court he has the advantage of observing the demeanour of an applicant for asylum and will have a much clearer sense of the context in which issues arise or explanations have been given. It is for that reason this Court must be reluctant to intervene and must avoid the temptation to second guess the decision maker. That being so I am in no doubt that in reaching the conclusion he did, the Tribunal Member was acting well within his rights.
Paragraph 4. "It is not credible that the Applicant, a practicing lawyer of eighteen years, did not know what it meant to travel."
Comment. This paragraph too, has been the subject of criticism. For my part, I can see absolutely no basis for that criticism. The reference to the applicant not knowing what it meant to travel appears to be a direct quotation from the applicant. The remark appears to have been made in the context of the applicant explaining the extent to which he was in a position to travel and was familiar with travel procedures and the extent to which he deferred to the friend with whom he was staying and the friend's friend given that he was unfamiliar with travel arrangements. I can see no basis for criticising the Tribunal Member in that regard.
Paragraph 5. "He gave two accounts of how he discovered he was in Amsterdam. His evidence in this respect was not credible. "
Comment. Both this paragraph and paragraph 6 in respect of travel through Dublin airport are matters where the Tribunal Member was entitled to apply his common sense.
Paragraph 6. "It is not credible that the Immigration Authorities at Dublin Airport or at any airport would have permitted Mr Green to answer questions addressed to him. Furthermore, each traveller must produce his/her passport personally at an airport when boarding or disembarking from an aircraft."
Comment. In my view the Tribunal Member is simply applying common sense. The idea that one adult would present documentation and answer questions on behalf of another adult if required is not in accord with any of our experiences of daily life. I find myself in complete and respectful agreement with the approach of Clarke J. in Imoh v. the Refugee Appeals Tribunal (Unreported, High Court, 24th June, 2005).
Paragraph 8. "Being an alleged member the Applicant was not aware that Massob does not have a flag and at the Interview described the Biafran flag. His description of the Biafran flag and the significance of its colours were incorrect and his answers to the Tribunal regarding the flag were disingenuous and wholly lacking in credibility."
Comment. Arguments in relation to the flag featured prominently in the written submission but did not figure to any significant extent in oral argument. Ms. Sinéad McGrath, B.L. on behalf of the respondents, placed the history of the emergence of the flag as an issue in context and I can find no error in how this topic was approached either at the ORAC stage or by the Tribunal Member."
Paragraph 9. "The Authorities had several opportunities to arrest the Applicant from December 2005 and failed to do so despite the Government allegedly unofficially describing every Massob member wanted. The failure to do so and for the reason enumerated above, I cannot accept that the Applicant was persecuted or will be persecuted should he return to Nigeria."
Comment. The extent to which State authorities were interested in the movements or whereabouts of a particular applicant is likely to be very relevant to the assessment of the extent to which there is a well founded fear of persecution. In that context, it seems to me entirely understandably that the decision maker might take the view that if the authorities had an opportunity and did not avail of it that was an indication of a lack of interest on their part.
Paragraph 7. "Although COI (see Section 13 Reports) states Massob does not register members or issue id cards the Applicant was adamant that they do so. The Tribunal relies on the COI and finds the evidence of the Applicant not to be credible."
Comment. I have deferred comment on this paragraph until now because it seems to me that it is the issue requiring most careful consideration. To put the paragraph in context it should be appreciated that at interview the applicant had produced what purported to be a MASSOB membership card. He was asked whether MASSOB issued membership cards and was adamant that they did, commenting that the card was renewed every year. Indeed, he seems to have been quite focused on the issue of party membership cards as it was a topic he returned to on a number of occasions including referring to the fact that his wife also had a card. The ORAC official accessed country of origin information described as a UK Home Office Operational Guidance note of the Immigration and Nationality Directorate on Nigeria. This report stated as follows:-
"It is understood that MASSOB do not register members or issue membership cards."
ORAC took the view that the fact that the applicant had submitted what purported to be a membership card called into question the credibility of the applicant and the authenticity of the card provided.
The applicant has continued to maintain that cards are issued and addressed this topic specifically in the detailed notice of appeal submitted to the Refugee Appeals Tribunal at ground 8 and there set out a quotation from a Canadian Immigration and Refugee Board document which in turn quoted two newspaper articles that had referred to claims made by the authorities that identity cards had been seized during searches and arrests.
While not referred to specifically in the notice of appeal I attach some significance to the fact that another document submitted, "Midyear Evaluation and Update on MASSOB and Case for Biafra 2005", a somewhat partisan document, refers in passing to the fact that most of the time the Nigerian army and police arrest members of MASSOB simply for holding a lawful assembly in the privacy of their homes, possessing MASSOB ID cards, for possessing the Biafran flag, crest, car sticker or key chain. The reference is a passing one in the context of criticism of Nigerian security forces, and for that reason might be though to have a degree of credibility.
The question of whether MASSOB issued cards or not was of some considerable significance. If no cards were issued and the applicant had submitted a forged or bogus document then obviously this had serious consequences for his credibility.
In the situation where ORAC had relied on county of origin information and that reliance was addressed in the notice of appeal and alternative country of origin information referred to, I am of the view that it was arguably appropriate and necessary that the Tribunal Member should refer to the existence of the two sources of information and indicate at a minimum whether he regarded them as consistent or in conflict and if in conflict why he was preferring one over the other.
There are, of course, a series of cases such as Banzuzi v Minister [2007] IEHC 2 which state very firmly that there is no obligation on a decision maker to refer to every aspect of evidence or to identify all of the documents considered within a written decision. I completely agree with that line of authority and it is only in the context where a notice of appeal specifically challenged reliance on country of origin information and submitted an alternative source of information that I believe that it is substantially arguable that a decision maker must go further. This was an issue that I considered in the case of T. G. v. R.A.T. [2007] IEHC 377. That related to conflicting country of origin information about the human rights situation in Togo. While on one view the documentation in conflict was much more central in T.G. for the reason I have mentioned the issue of whether membership cards are or are not issued acquired a considerable degree of significance in this case and it is in that context that I take the view that there are substantial grounds for contending that the decision was invalid and accordingly ought to be revisited. Accordingly, on this limited basis I propose to grant leave.
Approved: Birmingham J.