High Court of Ireland Decisions

Judgment Title: N. -v- Refugee Appeals Tribunal & Ors

Neutral Citation: [2009] IEHC 434


High Court Record Number: 2008 931 JR

Date of Delivery: 13 October 2009

Court: High Court

1. This is an application for leave to apply for judicial review of the decision of the Refugee Appeals Tribunal (RAT), dated the 24th June, 2008, to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner (“the Commissioner”) that the applicant should not be granted a declaration of refugee status. Mr. Robert Haughton S.C. and Mr. James Healy B.L. appeared for the applicant and Ms. Siobhán Stack B.L. appeared for the respondents. The hearing took place at the Kings Inns in Court No. 1 on the 7th October, 2009.

I. Background
2. The applicant claims to be a national of Cameroon who was born in 1978. She claims to have arrived in the State on the 13th June, 2006. She did not apply for asylum at the airport but instead went to the offices of the Refugee Applications Commissioner where she made her application. Her ASY-1 form is not before the Court.

The Questionnaire
3. The applicant claims that she comes from the English speaking part of Cameroon and that she is university educated to degree level. She worked as a financial assistant. She has three children of her own and one adopted child and is unmarried. The applicant claimed to fear persecution by reason of her political opinion. Her parents were members of the Southern Cameroon’s National Council (SCNC) Anglophone separatist group and she became a member when she went to University in 2000. She said that in May, 2006 the SCNC called for members to boycott national celebrations in Anglophone provinces. As a result some leaders were arrested and check points were set up. On the 16th May, 2006 the applicant was travelling in a bus which was stopped at a checkpoint. As the applicant was carrying a parcel containing membership cards and SCNC t-shirts she feared arrest. She tried to escape but the authorities ran after her and sprayed gas in her eyes. She was hit in the face, beaten, handcuffed and taken to the police station where she was held until the 18th May, 2006 when she was transferred to prison. While in prison she was beaten, tortured and kept in an overcrowded and filthy cell. She was forced to sign documents which she was not allowed to read. Her family became aware of her detention and intervened with the help of a lawyer and she was granted release on bail. Seven days later her brother told her that the police were looking for her in her family home. She went into hiding and then fled.

4. She travelled to Ireland to air with a man who presented her as his wife. She stopped over in France for about two hours. Her uncle paid for her journey. With her questionnaire she submitted a document that she said is her SCNC membership card.

The s. 11 Interview
5. The applicant attended for a s. 11 interview with ORAC on the 1st July, 2006. At her interview she submitted a copy of her results from her clerical studies at G.C.E. ordinary level in June, 1996. Those results are noteworthy as they indicate a poor academic performance. The applicant provided a verbatim account of her arrest and detention in May, 2006 as she had written out in her questionnaire. She added that she was beaten in the prison every morning because she was unable to pay the cell fee. A cell mate who was released informed her family of her treatment in prison. Her own role in the SCNC involved selling t-shirts and membership cards; informing people; preparing refreshments during meetings; attending rallies, meetings and conferences.

6. She told the interviewer that she had also been arrested in October, 2005 when she was locked up by the police for three days. No mention was made of any ill treatment during this first period of detention. She then described that after her release from prison the second time on the 30th May, 2006 she stayed in a farmhouse on her father’s cocoa plantation and she left Cameroon on the 12th June, 2006. Her children remained behind with her parents. The applicant submitted a medico-legal report from Dr. Yves Mbede of the District Hospital in Kumba, Cameroon dated the 31st May, 2006 outlining a visit to the hospital for assault due to severe beatings by security agents including swollen eyes and face, lacerations of the right leg and back and certifying her suffering from incapacity sixty days. She also submitted a Consultation Booklet from Kumba Hospital and a document which purports to be a Warrant for her arrest in Cameroon.

7. The applicant failed to obtain a recommendation that she was a refugee at the ORAC stage. Her knowledge of the SCNC was considered defective and it was considered that the authenticity of the documents she had produced could not be verified and they could have come from any source. It was concluded that her claim did not amount to a well founded fear of persecution.

8. Country of origin information (COI) was annexed to the s. 13 report, including (A) a UK Home Office Cameroon Operational Guidance Note issued on the 30th January, 2006; (B) a US Department of State Report on Human Rights Practices, Cameroon, 2005; (C) an English version of the SDF website; (D) a Canadian Immigration and Refugee Board report dated the 13th August, 2001; (E) a report from ambazonia.indymedia.org dated the 17th April, 2003; and (F) an article from The Post Online (Cameroon) dated the 5th July, 2006.

The Appeal
9. The applicant appealed this decision and relied on further COI to advance her claim. These were a UK Home Office report on a Fact Finding Mission to Cameroon conducted on the 17th – 25th January, 2004; an Amnesty International report for 2004; and a U.S. Department of State report for 2005, published in March, 2006. For the first time it was alleged that the applicant was beaten and tortured during her arrest and imprisonment in October, 2005. The Notice of Appeal requested that the originals of all documentation produced by the applicant in support of her claim should be made available at her oral appeal hearing.

10. The applicant submitted what purports to be an Affidavit from her lawyer in Cameroon attesting to her story. In addition she furnished six previous decisions of the RAT. Thereafter a number of medical reports were furnished to the Tribunal:–

(i) A letter dated the 9th November, 2006 from SPIRASI (the Centre for the Care of Survivors of Torture) to the applicant’s GP in Galway, indicating that the applicant had been referred to SPIRASI. That letter sets out the applicant’s account of her arrest in 2005 and 2006 and indicates that she has certain scars on her body.

(ii) A medical report dated the 15th November, 2006 prepared by a GP from Galway, which sets out the applicant’s allegations of torture and ill-treatment in 2006 and indicates that she is suffering from Post Traumatic Stress Disorder (PTSD), has scars on her body and discomfort when chewing. The GP notes that she was referred to SPIRASI for counselling.

(iii) An updated medical report dated the 11th April, 2008 from the same GP in Galway. The report indicates that she still suffering from PTSD and she “currently attends SPIRASI for psychotherapy counselling.”

(iv) A letter from the Client Services Officer of SPIRASI dated the 20th May, 2008, stating that she was assessed by a physician who referred her for counselling and that she had commenced group therapy with the Psychotherapist and had attended regularly; and

(v) A letter from a SPIRASI Examining Physician dated the 20th May, 2008, noting that the applicant had never engaged in 1-1 counselling and so they were unable to furnish a therapeutic report.

12. The decision relates that the applicant said she was arrested in October, 2005 when she was on a peaceful demonstration and was subjected to humiliation, beatings and food deprivation during the three days she was in prison at that time. She detailed the events of 16th May, 2006, her arrest and mal-treatment, her release, her hiding from the police and her subsequent flight from Cameroon. She answered questions on the SCNC and SDF. She was asked why she had not mentioned the 2005 arrest in her questionnaire and why she had told SPIRASI doctor in 2006 that she was not beaten or maltreated during the 2005 arrest. It was put to her that she had reconstructed her evidence to the Tribunal. The Tribunal Member records that after some considerable time the applicant said she had told the SPIRASI doctor but he failed to put it on the report and she had not read the report. She did not know the conditions of her release on bail, and had not asked her lawyer about them. Her Cameroonian lawyer told her when she was in Ireland why the police were looking for her. The warrant and affidavit were sent to her in Ireland. She stated that the agent who brought her here held all documents and she did not have to produce anything at the airports.

13. The negative RAT decision issued on the 24th June, 2008. The Tribunal Member accepted that her claim that some members of the SCNC encounter discrimination is borne out by country of origin information but he concluded from COI referred to in the s.13 report and which was not contradicted that there is no evidence to suggest that mere membership of, involvement with or perceived involvement with the SCNC would itself lead to persecution and the grant of asylum in such cases is therefore not likely to be appropriate. He noted that those involved in illegal or criminal activity on behalf of the SCNC were likely to face prosecution by the authorities rather than persecution. He noted that COI indicated that a number of activists were arrested in October, 2006 but they were released after a few days’ detention. He noted that COI relates that the SCNC can be regarded by the Cameroon government as advocating treason by proposing the break-up of Cameroon.

14. The Tribunal Member then went on to identify a number of “problematic inconsistencies” in the applicant’s account:-

a. She did not mention the arrest and detention in October, 2005 in her questionnaire and told SPIRASI in 2006 that she was not maltreated at that time but later told the Tribunal Member that she was severely beaten during that time. She was also unable to give satisfactory answers when this was put to her. This was not credible coming from a highly educated person and her evidence in respect of 2005 was not accepted.

b. The Tribunal Member considered that the Irish medical reports were “beyond reproach” but doctors do not usually assess the credibility of an applicant nor is it appropriate for him or her to do so. That is the task of the factfinder who will have more material than the doctor and will have heard the evidence tested.

c. The applicant did not know the conditions of her release on bail in 2006 even though she claims to have signed a bail bond.

d. She was unable to say why the police sought her out after her release from prison in 2006. She only contacted her lawyer to ask why the police were looking for her after she arrived in Ireland. The Tribunal Member found this to be implausible.

e. The Tribunal Member was not satisfied as to the authenticity of the warrant she put in evidence because it did not refer to a particular incident or a date of an incident neither does it refer to the SCNC. He found that the quality of the Affidavit that she put in evidence undermined the applicant’s claim. The Tribunal Member stated that he had examined in great detail the documents put in evidence including the SCNC membership card but was not satisfied of their bona fides.

The Primary Issues
16. The applicant challenged the RAT decision on 20 separate grounds which were refined considerably at the hearing of the leave application. Having heard the applicant’s arguments the Court indicated to the parties that the only challenge which required to be addressed by the respondents related to the Tribunal Member’s finding that the documents put in evidence by the applicant lacked authenticity. There were in effect three aspects to that complaint: (i) the Tribunal Member’s failure to consider the original documents; (ii) his failure to put his doubts to the applicant at the oral hearing; and (iii) his failure to state the source of his doubts.

17. As this is an application to which s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 applies, the applicant must show substantial grounds for the contention that the RAT decision ought to be quashed. As is now well established, this means that grounds must be shown that are reasonable, arguable and weighty, as opposed to trivial or tenuous.

(i) Failure to consider original documents
18. The applicant argues that the Tribunal Member acted in breach of fair procedures by failing to examine the originals of the Cameroonian documents that she submitted before making findings as to the authenticity of those documents.

19. It was difficult to understand how the applicant stood over this challenge as it was not clear what documents the Tribunal Member had before him at the oral appeal hearing or when he was coming to his decision on the appeal. There is no evidence before the Court that the Tribunal Member did not consider the originals or whether the “original documents” were photocopies to begin with or that they were actual originals. There was also no attempt to demonstrate to the Court how the applicant would have been prejudiced if the Tribunal Member had regard only to copies of the documents.

(ii) Failure to put doubts / misgivings to the applicant
20. The applicant submitted that neither the Tribunal Member nor the Presenting Officer raised any question relating to her documentation from Cameroon, thereby depriving her of any opportunity to address the Tribunal Member’s misgivings about the documents. However the RAT decision directly contradicts the applicant’s argument in Court and the averment in her affidavit. The Tribunal Member recorded as follows at page 3 of his decision:

“The Applicant put a purported warrant for her arrest in evidence. There was nothing on the warrant to suggest that she was wanted for her activities in the SCNC. It was also put to her that the warrant does not say when the alleged offence occurred. She was referred to a purported affidavit put in evidence which contained mis-spelling, bad English and the wrong month that the Applicant was allegedly sought. The Applicant said the documents were sent to her.”

(iii) Failure to state source of Misgivings
22. The applicant argues that the Tribunal Member acted in breach of fair procedures by failing to give reasons for his determination that the documents lacked authenticity. She argues that a finding of a lack of authenticity must be based on evidence and she relies on E. N. (Nya) v. The Refugee Appeals Tribunal (Unreported, High Court, Clark J., 5th February, 2009). She also argues that the Tribunal Member engaged in speculation when he noted that the Warrant lacks authenticity because it does not state that she was wanted for her SCNC activities or state the date and place where the alleged offence occurred. It was submitted that the decision leaves the applicant unaware of the reasons for which the contents of the documents were not relied on.

23. The respondents relied on Pamba v. The Refugee Appeals Tribunal & Anor (Unreported, High Court, Cooke J., 19th May, 2009), where Cooke J. reiterated the well-established principle that decision-makers have an obligation to state the reasons on which their decisions are based “in such a way as to make the person concerned aware of the reasons for the measure and thus enable them to defend their rights and the court to exercise its supervisory jurisdiction”. Cooke J. found that there is no duty either at common law or under the Refugee Act 1996 for a Tribunal Member to provide a detailed response to every single argument raised on appeal or to explain how or why each item of evidence running counter to the decision has been rejected. He further stated as follows:-

“If the test in Irish law as to the extent of the duty in this regard is a test akin to that articulated in Community law, as the case law seems to suggest it is, that duty is satisfied if the addressee can ascertain from the decision why the appeal failed and if the court is placed in a position to exercise its function of judicial review. In that regard, the decision must be read and considered in conjunction with any documentary evidence or information to which the report reports and which was available to the applicant.”

25. A reading of the warrant that the applicant put in evidence reveals that it refers to nine other people. The applicant never mentioned or explained her connection to those people. The warrant does not contain any specifics and does not indicate what date the alleged offence(s) took place. The applicant provided no explanation as to how the document was obtained apart from saying it came from her attorney.

26. The purported SCNC membership is manifestly different to the format of the sample card contained at Annex 1 to the U.K. Home Office Report on a Fact Finding Mission to Cameroon conducted on the 17th – 25th January, 2004.

27. The Tribunal Member stated that he had considered in great detail the documentation including the membership card but concluded that he was not satisfied as to their authenticity. He indicated in his summary of the applicant’s evidence that it was put it to her that there were issues with the warrant and affidavit. Her response is recorded as being that those documents were sent to her. Thus even when she was expressly afforded a further opportunity to make submissions on their authenticity, she failed to give any reasonable explanation for the discrepancies that are evident on the face of the documents. In the circumstances the Court is satisfied that when the decision is read and considered on the facts as presented in conjunction with the documentary evidence and the other reasons given, the duty to give reasons is satisfied and both the applicant and the Court can readily ascertain why the appeal failed. It does not appear to the Court that it was either unreasonable or irrational for the Tribunal Member to reach the conclusion that he reached. Substantial grounds have not been established on the authenticity of documents point.

Subsidiary Issues
28. The applicant made a number of subsidiary complaints at the hearing of the leave application. The Court is not satisfied that the applicant has established substantial grounds in respect of any of those complaints, for the following reasons:

*Failure to have regard to critical documents
29. The applicant complains that there was no mention in the RAT decision of two critical documents – (i) a report from Dr. Yves Mbede of the District Hospital in Kumba, Cameroon dated the 31st May, 2006 and (ii) a Consultation Booklet from Kumba Hospital. It was argued that those documents corroborate the applicant’s account of being in custody in May, 2006.

30. The Tribunal Member did in fact refer to the reports albeit somewhat obliquely when he said in reciting the applicant’s claim that “a number of medical reports were put in evidence as well as two SPIRASI reports and counsel for the Applicant drew the Tribunal’s attention to the contents therein.” The Court does not accept that the Tribunal Member was in error by omitting to refer expressly to those documents. It is well established that there is no obligation on a decision-maker to refer to each and every piece of information furnished to him – see e.g. the decision of Feeney J. in Banzuzi v. The Refugee Appeals Tribunal [2007] IEHC 2.

31. The value and weight attached to a particular document will determine whether it merits express consideration in a decision. As was pointed out by Ms. Stack on behalf of the respondents, the applicant’s case on her questionnaire and at interview was that she hid in her father’s cocoa estate for twelve days after her release. She never mentioned that she went to a hospital one day later. There is no reference that she attended at Kumba hospital in the interview or in the narrative provided by the applicant as summarised in the Tribunal Member’s report of her evidence. There was no dispute that when she was examined in Ireland by a physician he found objective evidence of some scarring on her right leg and shoulder which the applicant told him she had sustained in police custody in May, 2006. The Tribunal Member considered all these medical reports and distinguished them from “documents from Cameroon”. The applicant has not presented any evidence that the Tribunal Member did not take account of the document from Dr. Mbede. What is clear is that he did not attach weight to the medico-legal document dated the day after her release.

* Error of Fact about detention in October, 2005
32. The applicant argues that the Tribunal Member was in error in his finding on the applicant’s arrest and detention in 2005 and that the applicant did in fact mention her 2005 arrest at her s. 11 interview and to her SPIRASI doctor in November, 2006. It was suggested that for the reason why the 2005 arrest and detention were not mentioned in her questionnaire was that she was not specifically asked the question and was responding to the question “Why did you leave your country of origin?” Counsel submitted that it was therefore reasonable for her to detail the events of 2006 and not mention 2005. She was not legally represented when she was completing her questionnaire and she was emotionally disturbed and suffering from PTSD. Counsel urged that it was irrational to treat the applicant as a person who had not presented all her evidence at the earliest opportunity. This error, it was argued, was of significance as the finding was central to the RAT decision.

33. It seems to the Court that the applicant is seeking to attribute an artificial meaning to the Tribunal Member’s finding with respect to the 2005 arrest. It is apparent from a reading of the RAT decision as a whole that the Tribunal Member’s concerns were not confined to the absence of any mention of her 2005 arrest in her questionnaire but also included the fact that no issue of being maltreated in 2005 was made until the appeal. In particular the applicant told her SPIRASI doctor in November, 2006 about her 2005 arrest but said that she was not beaten or maltreated on that occasion. The two letters from the applicant’s GP of the 5th November, 2006 and the 11th April, 2008 refer in detail to her detention in May, 2006 but they make no reference to any detention or ill-treatment in 2005. She mentioned the 2005 arrest at her s. 11 interview but on that occasion gave no details and avoided answering when she was asked why she had not mentioned that arrest in her questionnaire. It was only in her Notice of Appeal that her story was supplemented and it was submitted that she was ill-treated during the 2005 arrest. It appears that she expanded upon that submission in her evidence to the Tribunal at the oral hearing. The obvious evolution in the applicant’s evidence was a matter that the Tribunal Member was entitled to take into account.

* Mischaracterisation of the applicant’s fear
34. The applicant complains that the Tribunal Member erred by assessing her fear of persecution by reference to COI that relates to the unlikelihood of arrest or detention for “mere membership of, involvement with, or perceived involvement” with the SCNC. Mr. Haughton S.C. argued that the applicant is not merely in the position of an ordinary SCNC member as she is a person who was caught red-handed with SCNC materials. She has a history of detention, ill-treatment and imprisonment and has now breached her bail by leaving the country. Mr. Haughton argued that it must be surmised that if she was returned to Cameroon she would be imprisoned and her fear is therefore not merely that she would be at risk as a member of the SCNC but rather that she would be subjected to torture in prison. Mr. Haughton argued that COI indicates the continuing practice of torture in prisons in Cameroon and he referred the Court in particular to sections 6.9 and 6.10 of the U.K. Home Office Report on a Fact Finding Mission to Cameroon conducted in 2004.

35. The Court cannot accept that the applicant has established substantial grounds in this regard. The applicant’s evidence was that she did not know and does not know the conditions of her bail and that she had not asked her lawyer about those conditions. The purported affidavit does not refer to the terms of her bail and no evidence as to the terms of her bail were before the Commissioner or the Tribunal Member. It was never argued that because she had been found with t-shirts and membership cards, this elevated her to the status of an SCNC leader and thus liable to arrest, detention and trial in accordance with COI relating to leaders. The COI which refers to the continuing practice of torture in prisons therefore is not relevant to the case made by the applicant. The Tribunal Member did not accept the applicant’s personal credibility and it follows that he did not have to consider the likelihood of her facing arrest and imprisonment on her return.

* Failure to have regard to previous RAT decisions
36. Counsel for the applicant submitted that the Tribunal Member erred by failing to explain why the six previous RAT decisions submitted in support of the applicant’s appeal were of insufficient relevance to the applicant’s appeal to merit overturning the Commissioner’s recommendation. In particular counsel referred to the third decision furnished and argued that, in view of the principle that RAT decisions should have a degree of consistency, the Tribunal Member ought to have given reasons for making a decision that was inconsistent with that decision.

37. The Tribunal Member found that the previous decisions submitted were not relevant to this case. Having reviewed those decisions it is apparent why the Tribunal Member came to that conclusion. The previous RAT decisions were not of sufficient significance to warrant the overturning of the Commissioner’s recommendation. The Court is also satisfied that there was no obligation on the Tribunal Member to engage in a detailed assessment of each decision or to explain why his conclusions differed from those reached in each of the previous decisions furnished.

38. In the first case the successful applicant displayed an impressive political history of the development and concerns of the Anglophone community. The applicant’s credibility was not doubted. Similarly in the second case submitted the applicant’s account was found to be plausible and entirely consistent with COI. She displayed an excellent knowledge of relevant facts in Cameroon, Her story was consistent throughout the asylum process and it received powerful support from a SPIRASI medical report. The Tribunal Member was satisfied that she was telling the truth. It is clear that the first and second decisions are distinguishable from the present on the basis of those facts.

39. The third and fourth RAT decisions, from 2003 and 2005, are somewhat more comparable to the present case insofar as some doubts were expressed as to the applicant’s evidence in each case. Those cases differ from the present insofar as the Tribunal Member decided in a generous manner to grant the benefit of the doubt to the applicants. The decisions are not sufficiently detailed for the Court to take any view. The doctrine of equality of course demands that we treat equals equally but it is also the case, as was found by O’Leary J. in Fasakin v The Minister for Justice, Equality and Law Reform [2005] IEHC 423, that “the decision of a body in a particular case is neither evidence in another case nor does it create a binding authority for future cases. Each case must be considered on its own merits.” The Court agrees with the view expressed by McGovern J. in C.O.I. v. The Minister for Justice, Equality and Law Reform [2007] IEHC 180 that the observations of O'Leary J. in Fasakin point out the dangers that can arise in adopting too simplistic an approach and saying that because a favourable decision has been given in one case it should be give in another similar case. The applicant in this case has not demonstrated to this Court that the evidence she gave is of the same or similar calibre as the evidence given by the applicants in the third and fourth previous RAT decisions or that their evidence related to the same events or period of time. The applicant does not appear to have made any submissions to the Tribunal Member, whether orally or in her written grounds of appeal or by any other means, as to the relevance of the previous decisions to her appeal. The Court is therefore satisfied that the Tribunal Member was under no obligation to explain in any further detail why he was not persuaded to come to the same conclusion as the previous decision-makers.

40. The fourth and fifth decisions related to an Algerian and a Côte d’Ivorian and were furnished it seems, in respect of the legal principles applied. The applicant did not make any arguments on those decisions. The Tribunal Member reviewed all the decisions and found them unhelpful.

Conclusion
41. In light of the foregoing, I am not satisfied that the applicant is entitled to the reliefs sought. The application fails.