Neutral Citation No: [2008] IEHC 56
[2006 No. 454 J.R.]
BETWEEN
APPLICANT
RESPONDENTS
EX TEMPORE JUDGMENT OF MR. JUSTICE CHARLETON delivered on the 22nd day of February, 2008
This is an application pursuant to s. 5(2) of the Illegal Immigrants (Trafficking) Act, 2000 for leave to commence judicial review proceedings against the respondents. The respondent refused the applicant a declaration under the Refugee Act, 1996 that she was a refugee and instead of appealing that finding to the Refugee Appeals Tribunal, she seeks leave to commence this judicial review. She is only entitled to commence such a case if her grounds are demonstrated to be substantial, the test that the legislation obliges me to apply.
I think for the purposes of this application, I am obliged to look at it in a way that ensures that I am satisfied that human rights are not infringed. All of these cases are basically questions of fact before the Commission or the Tribunal as to whether an applicant is a refugee as defined by s. 2 of the Refugee Act, 1996. There is a burden on the Commission or, on appeal, the Tribunal to make an enquiry into the circumstances of the case, and there is a burden as well on applicants to show they have a well-founded fear of persecution, whereby they are outside their country and unwilling to return for a reason based upon persecution, on grounds of their ethnicity or religion or membership of a social group. Once there is an appeal the applicant must satisfy the Refugee Appeals Tribunal that the recommendation to refuse refugee status to an applicant before the Refugee Applications Commission was incorrect; s.16A of the Refugee Act, 1996, as inserted by s. 7(i) of the Immigration Act, 2003.
Persecution
That being the definition of s. 2 of the Refugee Act, 1996, the real issue almost always is whether this person is, or is not, a refugee. In this case, the applicant came to Ireland in December, 2005 and the account she gave was that she was associated with a political group which seeks independence on behalf of Biafra from the Federal Republic of Nigeria. People who are old enough will remember that Biafra had historically sought independence from Nigeria and there was a very bloody civil war in the 1960s with a dreadful toll in terms of starvation in its aftermath. The movement for Biafran independence has continued, according to the applicant, and the country of origin information certainly suggests that this is to some degree correct. The particular independence movement organization, MASSOB, of which the applicant claimed her husband to have been a member, is one which is frowned upon by the Nigerian state. So, is there information that suggests that there is persecution of those who seek the independence of Biafra? According to the relevant country of origin information, which I recite without disapproval or approval, things can get so bad for MASSOB members that there have been military operations to hunt for persons affiliated with the independence movement. From the country of origin information that was before the Refugee Applications Commission, I note that a large number of suspected MASSOB members, or sympathizers, are detained by the Nigerian government in Abuja and that the government has refused to release them on bail. An act of treason in Nigeria is punishable by the death penalty. Seeking to break up the national territory of Nigeria can be regarded, in some circumstances, as the offence of treason. In addition, despite the fact that no governor has signed a death penalty order for treason, there have been allegations of extrajudicial killings and there has been a claim put forward by one source that in Nigeria the police force frequently kills members of MASSOB, and others associated with it, with impunity. By reciting this, I am not finding that it is true but merely that such a case could be made to the respondents.
Therefore, it seems to me that if there is a factual basis upon which the applicant could claim to be associated with a political group, then there is perhaps a reasonable basis upon which she could claim that that political group is being persecuted. But the facts are crucial. As with the existence of a well known massacre in a well known place at a well known time, the issue is not so much whether the massacre happened but whether or not the applicant was part of the group that was thereby targeted. I cannot see that there is anything in these papers to suggest that this issue was approached by the Commissioner in a frivolous way. Rather, it is said in argument before this court that mistakes have been made in determining that the applicant does not have refugee status; that no country of origin information was put to the applicant; that an issue central to the ultimate decision was not put that the applicant that her husband resided in London for a substantial period of time; that credibility was examined in a vacuum; and that it should have been put to the applicant at the hearings that the Commissioner had doubts in relation to the account that she was giving. The real issue in this case is whether the Commission approached the question of the credibility of the applicant in the right way.
As to the country of origin information, it seems to me that the applicant has brought forward country of origin information, which I have just quoted in the earlier part of this judgment, and that this country of origin information could establish a degree of persecution of MASSOB members and their associates, but I do not know. It could establish it. There is an onus, certainly, on the Commission to make enquiries, but there is also an onus on an applicant to give a full and truthful account of events and that is the real issue in this case. I do not see that it was a matter influencing the Refugee Applications Commission that there was a negative finding against the applicant's husband who had, earlier than the applicant, applied for refugee status and had been refused it. The account relevant to the claim of persecution given by the applicant was that since her husband became involved in MASSOB, on the basis of a full-time job, he was working there all the time, every day, so she said, he had been arrested and that she as his spouse in consequence was frightened; that she had to move from her home to a different place where she was in a family compound; that her house there was burned down; that her husband left in terror; and that she left behind in the aftermath. She says she did not report this act, of what she claims was arson, to the police because it would be futile. Her decision was also influenced by the fact that her husband believed that it was a state action by some branch of the Nigerian authorities. The Commission's view was that there was no evidence that this was a state action. Indeed, there was no evidence the house burned down as a result of arson. The applicant claims to have fainted on coming home to see her house in flames, and to have woken up some time later, certainly hours later, in hospital and to have stayed in hospital for at least enough time for her aunt to come and visit her, which I infer is a period of days. All very interesting as a narrative, but the issue before the Refugee Applications Commission was whether it was true.
The applicant's husband, I know from the other papers which have been put before me in this case, was a person who wrote an article that was published in a magazine. He produced, or had produced to him, that particular article in the course of his interview. He also had produced to him during his interview a blog from the internet whereby he gave his full name on the internet and made some recorded comments in relation to a situation pertaining to a disease in Africa and the way it was being dealt with. The decider of fact concluded in relation to him that he was the same person who had written this blog giving the information that he was living in London, and decided that he had resided in London and that he was not making a credible claim of persecution. I do not see that any issue from the applicant's husband's case was brought into play in this application by this applicant before the Commission and I am not taking it into account in this application either.
So, the issues are in terms of what is left are: firstly, was credibility examined in a vacuum in isolation from relevant country of origin information and, secondly, how should the Refugee Applications Commission, or on appeal the Refugee Appeals Tribunal, properly assess the issue of credibility?
Country of Origin Information
The first issue is whether the Commission, or the Tribunal, should consider an allegation of persecution in isolation from relevant country of origin information or whether any allegation made must be assessed in the light of what the assessor knows of what reliable sources say as to the situation in the home country of the applicant. On that, my view is that Judge Pearl in Horvath v. Secretary of State [1999] I.N.L.R. at 17 got it right. In that case he said:
"It is our view that credibility findings can only really be made on the basis of a complete understanding of the entire picture. It is our view that one cannot assess a claim without placing that claim into the context of the background information of the country of origin. In other words, the probative value of the evidence must be evaluated in the light of what is known about the conditions in the claimant's country of origin."
Having quoted that statement, I regard it as being absolutely correct. You cannot judge an event in the context of a claim for refugee status as if it happened in Dublin, or in Limerick, where crimes may be committed, or accidents may happen, or people's houses may burn down, but where there is a functioning state service to deal with it. Instead, as an assessor of a refugee status application, the Refugee Applications Commission, and on appeal the Refugee Appeals Tribunal, have to look at an allegation of persecution in terms of what is known of the country of origin information. In that regard, submissions have been made to the effect that you do not have to go on and look at country of origin information if you find the applicant's claim to be inherently incredible. I think the cases where you would properly find the applicant's claim to be inherently incredible, without in any way considering country of origin information, are non-existent. I think it is wrong that you could ever judge someone's account, who has come from a far country, alleging persecution as if the account were given in relation to an event in South Hill in Limerick or in Connemara. I think you have to judge it against what the country of origin information tells you as to what may have been happening in that country. That, of course, does not necessarily mean that the assessor of fact has to accept any individual account by a claimant for refugee status as to what he or she alleges to have happened.
Assessing Credibility
To my mind, a very impressive analysis of the proper approach by an assessor of fact in a refugee claims situation is that given by Herbert J. in Kikumbi v. Refugee Applications Commissioner (Unreported, High Court, 7th February, 2007). In the course of that he said:
"Once properly admitted, the weight (if any) to be given to any evidence is exclusively a matter for the decider of fact. This generally involves evaluating an account of events in his or her country of origin given by the Applicant for asylum. The probative value ( if any) to be given to information or material properly received and considered by the decider of fact may sometimes be ascertained by reference to the cogency of the account itself and the absence of inherent contradictions and errors of substance in that account. Sometimes, it is possible also to compare various elements of the account with extrinsic material which the decider of fact can accept, or which is admitted to be reliable, vis-à-vis country of origin information from sources of proven and accepted accuracy and reliability, such as United Nations Reports. Sometimes, however, there is no yardstick by which to determine whether a particular account or part of an account is credible or not, other than by the application of common sense and life experience on the part of the decider of fact in the context of whatever reliable country of origin information is properly before him or her. Also, the decider of fact may have had the advantage of having seen and heard the Applicant for asylum relating his or her story, making all due allowance for the various factors indicated by the UNHCR handbook as uniquely relevant to such an account given. The obligation to give reasons, as explained by the Supreme Court in F.P. and A.L. v. The Minister for Justice, Equality and Law Reform [2002] 1 IR 164, does not, in my judgment, require the decider of fact to give reasons why she or he applying such common sense and life experience found that a particular account or aspects of such an account to be not credible."
I have had regard to what other cases have had to say on the issue of the proper assessment of credibility in refugee cases. I would extrapolate from that case, and also from the judgment of Clarke J. in Imafu v Minister for Justice Equality and Law Reform [2005] IEHC 182 and from the earlier case of Horvath, eight principles in terms of this court assessing whether a body dealing with refugee applications, or appeals, has correctly assessed credibility. These are the principles which such a body should follow when considering the fundamental issue as to the credibility of a person who claims to be a refugee. First, what weight do you put on a factor that you accept? Second, what is the internal cogency or lack of contradictoriness within an account? Third, what does the country of origin information say about what the applicant alleges to be persecution? Fourth, what does common sense and life experience say to you as to the nature of the account and its credibility? Fifth, what is the effect of seeing and hearing the applicant? Sixth, always guard against the principle that one lie destroys the entire fabric of a case, because a lie can be told for reasons of embarrassment, or other factors, not for reasons necessarily related to undermining the truthfulness of the account given. Seventh, the absence of travel documents, or other findings under s. 11B of the Refugee Act, 1996, does not necessarily knock down all other aspects of the applicant's claim, which must be regarded and assessed independently for what they may be worth. Eighth, the account of the applicant is not to be judged in isolation, as if it happened in Ireland, but in the light of what is known about the country of origin.
In addition to that, one notes what Clarke J. said in Imafu v Minister for Justice, Equality and Law Reform (Unreported, High Court, 27th May, 2005), that the assessment of credibility has to be carried out in accordance with the principles of constitutional justice; that where there is a significant error of fact it can undermine a decision; that you do not assess credibility on the basis of a gut feeling; that an adverse finding has to be based on reasons that are related to it, and that a finding of lack of credibility must be founded on a rational basis.
To that it seems to me that I am obliged to add in to that s. 11B of the Refugee Act, 1996, as inserted by s. 7(f) of the Immigration Act, 2003. That states that the Commissioner or the Tribunal, as the case may be, in assessing the credibility of an applicant for the purposes of the investigation of his or her application or the determination of an appeal in respect of his or her application, shall have regard to the following: firstly, whether there are identity documents or an explanation for not having them; secondly, whether there is a reasonable explanation to substantiate the claim that the State is the first safe country in which to make an application since departing from the state fled from; thirdly, whether the applicant has provided a full and true explanation of how they traveled to the State; fourthly, when the applicant claimed asylum and was it claimed immediately on arriving and, if not, is there any reasonable reason why not; fifthly, whether the applicant has forged, destroyed or disposed of identity, or other relevant, documents; and sixthly, whether manifestly false evidence has been adduced.
In most cases one does not actually ever find a reference to the last mentioned section and it seems to me that the section is of particular importance. The applicant in this case has no identity documents. In this case, it seems more likely than not that what she says as to her identity is true. That does not necessarily mean that what happened to her as recounted by her is what happened to her. In this case, no identity documents were available. There has been a clear finding of fact that there has been no reasonable explanation for the absence of such documents, a passport and/or national ID card, et cetera. Then there is a second finding that there has not been a full and true explanation of how the applicant traveled to, and arrived in, the State.
On the last matter, the applicant claims that she traveled to the State on a boat, after having been in another boat, she claimed, after having stayed in an African country for a week. The Refugee Applications Commission assessed her as not being able to give an account of the place she stayed in or what it was like or what the port was like when she supposedly arrived in Ireland by ship, or what the ship was like or what the room she was in the ship was like or even what the food was like beyond that bread was taken in to her from another place in the ship by her husband.
In looking at these facts I am not to be taken as stating that I do not believe the applicant. I neither believe her nor disbelieve her, but if I am exercising anxious scrutiny in relation to her claim, I have to read the entirety of the papers, including the questionnaire, and having done that there is nothing in there which says to me: 'Look, there may be a mistake here; the Commissioner may have got it wrong.' In addition to that, in terms of the core complaint of persecution, there is nothing in this case to say that this home that the applicant says she was in was burned down by an arsonist. There is no proof that it was burned down at all and, even if it was, there is nothing to suggest that it was not because the house simply burned down due to an electrical fault or something else that was accidental. There is nothing to suggest, as well, that the applicant actually gave an inherently credible and coherent account of events. Whereas I am not, on the basis of Kikumbi v. The Refugee Applications Commissioner, attempting to put myself in the shoes of the decider of fact, as specifically I am forbidden from doing so by Peart J.'s decision in Imafu v Refugee Applications Tribunal (Unreported, High Court, 9th December, 2005), what I am saying is that the eight points I have elucidated are points which are based upon the case law and which are useful, in addition to s. 11B of the Refugee Act, 1996, in assessing credibility. There is nothing in these papers to reasonably suggest that the respondent went wrong in its approach to this determination.
Alternative Remedy of Appeal
Lastly, my view on the matter is this: I do not find it impressive that someone who claims that there is a slight error in relation to a decision of the Commissioner should commence proceedings before the High Court without appealing and cause a delay of almost two years in terms of the disposal of their case. That is not something in respect of which I attach any blame whatever to the applicant's gallant legal advisers who have argued this case with the usual skill that is of a very high level that all judges find in these cases. It seems to me, however, as in many of these applications that argue for the application of the principle that a wrong finding of fact can amount to an excess of jurisdiction, that an appeal is the correct response and not judicial review. The appropriate test as to an error of fact exceeding jurisdiction is as set out in O'Reilly and Mackman [1983] 2 AC 237 at 278 which is this: has the administrative tribunal, in this case the Refugee Applications Commission, asked the wrong question and so, by pursuing an issue that it was not mandated to enquire into, exceeded jurisdiction? Rather, this is a case, in accordance with the principles enunciated by the Supreme Court in Stefan v. Minister for Justice [2001] 4 IR 203 and the decision of McGovern J. in AZ v. The Refugee Applications Commissioner, (Unreported, High Court, 6th February, 2008) and Barron J.'s decision in McGoldrick v. An Bord Pleanála [1997] 1 I.R. 497 at 507, where we are in a situation that in the context of common sense and the ability to deal with the question raised and the principle of fairness, the right thing to do in these cases is to appeal.
I therefore refuse the application.
Approved: Charleton J.