Neutral Citation Number: [2009] IEHC 605
THE HIGH COURT
JUDICIAL REVIEW 2007 102 JR
BETWEEN
A. H. A.
APPLICANT AND
THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENTS
JUDGMENT of Ms. Justice Dunne delivered on the 18th day of December, 2009
The applicant herein was given leave to apply for judicial review by order of the High Court on the 3rd February, 2009 (McGovern J.). Leave was granted to apply for an order of certiorari of the decision of the first named respondent made on the 8th December, 2006, upholding the decision of the Refugee Applications Commissioner that the applicant’s claim for asylum in Ireland be refused. The grounds upon which leave was granted are as follows: 1. The first named respondent erred in law in holding that the applicant was not a refugee within the meaning of s. 2 of the Refugee Act 1996.
2. The first named respondent failed to take into account all relevant considerations in refusing the applicant’s claim for asylum, and as such, the second named respondent has failed to act in accordance with fair procedures and natural and constitutional justice.
3. The first named respondent took into account irrelevant matters in arriving at its decision.
4. The first named respondent failed to give proper reasons and/or failed to make all necessary determinations in reaching the decision herein.
5. The first named respondent failed to act in compliance with the principles of natural and constitutional justice in refusing the claim for asylum herein.
Ultimately the decision of the Tribunal herein was a finding that the applicant lacked credibility. Accordingly, the thrust of the hearing before me was an attack on the findings of the Tribunal on credibility. It was contended that the manner in which the applicant’s credibility was impugned does not comply with the requirements of natural and constitutional justice or fair procedures.
Background
The applicant herein stated that he is a native of Somalia. He was born on the 27th May, 1986. He arrived in the State on the 15th March, 2005, and claimed asylum. Following his attendance at ORAC, his application for asylum was refused. He appealed to the Refugee Appeals Tribunal (“the Tribunal”).
The oral appeal before the Tribunal took place on the 5th October, 2006. The applicant had a witness in attendance with him to support his evidence and he had a report from SPIRASI which had not been available to him at the time of his attendance before ORAC. The appeal was refused in a decision made on the 8th December, 2006, which was communicated to him by letter dated the 3rd January, 2007. As pointed out above, the applicant takes issue with the decision of the Tribunal on a number of grounds. The specific points raised by the applicant can be summarised as follows: 1. The failure to attach any weight to the SPIRASI report.
2. The use of country of origin information, in particular, a failure to give the applicant credit for certain matters, for example, the misinterpretation of the meaning of the word “waar” by ORAC.
3. The findings of the Tribunal in relation to a timeline given by the applicant, an issue as to dependence, his travel through Dublin Airport and an issue that arose concerning blood transfusions.
4. Finally, the Tribunal raised the question as to whether the applicant was indeed from Somalia or had, in fact, lived there.
It would be helpful to outline in general terms the history of the applicant as told to ORAC and the Tribunal. The applicant stated that he is a Somali national of Reer Hamar ethnicity. His claim for asylum was based on grounds of race, being a member of a minority tribe. He stated that he had been targeted by the Hawiye clan and that he was kidnapped and forced into slave labour by them in 2002. He was released following the payment of a ransom by his father. His father, uncle and aunt were shot dead in 2003. He stayed away from the area at that time and moved to the home of one of his neighbours.
Subsequently, in 2004, he was kidnapped again and taken to a farm. He described having to work on the farm. Eventually, one night, he was ill – he said he was unconscious – he woke up and was able to run away. At this stage he had been detained for three months. He went to his home and stayed with a neighbour. Ultimately, he left Somalia on the 5th February, 2005.
Assessment of Credibility
The manner in which a Tribunal should assess credibility has been considered in a number of cases. Further, the manner in which a court in judicial review proceedings should look at the findings of credibility by a Tribunal have also been considered in a number of cases. The principles applicable to the assessment of credibility have most recently been reiterated in the case of D.V.T.S. v. Minister for Justice, Equality and Law Reform [2008] 3 IR 476 by Edwards J., and in the case of S.S.S. v. Minister for Justice, Equality and Law Reform [2009] IEHC 329 by Cooke J.. In the latter case Cooke J. summarised the principles as follows at p. 3 of his judgment: “1. The decision on credibility is to be made by the Commissioner at first instance and on appeal by the Tribunal Member.
2. Provided a finding on credibility is based on an objective appraisal of all relevant evidence and information and free from any material infringement of applicable law or the principles of natural or constitutional justice, it will be immune from challenge by judicial review.
3. This Court is not concerned with the issue of credibility itself and must not fall into the trap identified by Peart J. in the Imafu case of substituting its own assessment of credibility for that of the Decision Maker’s during the asylum process.
4. The court is only concerned with the legality of the process by which these Decision Makers have reached a negative conclusion on credibility and once the court finds itself querying whether or not a Decision Maker has perhaps been too harsh in assessing the answers given to questions put in order to test credibility, where the questions are otherwise logical and appropriate in the testing process, the court is in danger of substituting its own view.
5. The court must also be wary of acceding to an invitation to deconstruct a decision on credibility by isolating individual parts of the appraisal and subjecting particular findings to distinct analysis.
6. In most instances a Decision Maker reaches a single overall conclusion on credibility based on a cumulative impression gleaned from the applicant’s responses to questions on various parts of the claim and on the personal history as given, including the way in which the story is told, the applicant’s demeanour and his or her reactions when doubt is expressed or discrepancies or contradictions are highlighted.
7. The Decision Maker must, of course, consider all pertinent evidence and information and must weigh the material objectively and not selectively.
8. The decision must therefore, be read as whole and an error in respect of one or more specific factors identified as undermining credibility will not invalidate the entire decision if the negative conclusion is adequately sustained by the remaining factors relied upon by the Decision Maker.”
That decision seems to me to encapsulate the necessary principles to be considered by this Court in judicial review proceedings designed to challenge the decision of the Tribunal.
I now want to look in detail at the issues raised on behalf of the applicant herein through the prism of that decision.
I want to deal first with the complaint made in respect of the SPIRASI report. The complaint made by the applicant is that the Tribunal did not give sufficient weight to the medical report. It was submitted that the report corroborated the applicant’s claim and that the applicant was entitled to “more probative benefit from the medical report”. Indeed, the applicant in his affidavit grounding the proceedings herein stated: “I say that the Tribunal Member failed to give proper or any weight to the medical report. In fact, he seems to hold the report against me, though no reasons are cited for his non-acceptance.”
The SPIRASI report came to hand after the decision of ORAC was made and was relied on by the applicant before the Tribunal. Reference is made to the report in the decision of the Tribunal and its contents are summarised at p. 4 of the decision. In fact, the summary given is a reiteration of the “conclusion” paragraph of the report. In the section of the decision headed “Analysis of the Applicant’s Claim”, the Tribunal refers again to the SPIRASI report in the following terms: “This SPIRASI report makes the clinical finding saying that the findings are consistent, or typical of the alleged physical injuries sustained. I find that where it is “consistent with” must be interpreted as meaning that they could have occurred in another way.”
It is very difficult to see how it could be said that the Tribunal somehow held the report against the applicant. Equally, the finding made by the Tribunal in regard to the interpretation of the phrase “consistent with” is one that was open to the Tribunal to reach. In fairness, counsel on behalf of the applicant did not specifically disagree with this point of view but expressed the concern that sufficient weight had not been given to the medical report. Counsel on behalf of the respondent pointed out that the medical report only went so far. It did not support the contention that the injuries contained and outlined therein had been inflicted for a persecution reason. I think the Tribunal was neutral in relation to the report but obviously, having regard to the ultimate findings of the Tribunal in relation to the applicant, it is clear that the Tribunal Member did not accept the account given by the applicant. Ultimately, it was a matter for the Tribunal to decide the weight to be attached to the report and there is no basis on any grounds, in my view, for challenging the decision by reference to the report.
The next issue raised on behalf of the applicant relates to questions about what might be described as local knowledge and language issues. Obviously, such questions are asked to establish that the applicant is someone who comes from the region claimed. It was claimed that the applicant was not given credit for the correct translation of the word “waar”, an issue that arose before ORAC. ORAC said that his translation was incorrect. This matter was dealt with before the Tribunal at p. 7 of the decision where it was stated as follows: “An issue then arose about the meaning of the word “waar” which was ultimately clarified as meaning a measurement for cloth.”
The applicant in his grounding affidavit stated as follows: “I say that the Tribunal failed to give me credit for fact that as regards the translation of certain words, e.g. “waar” the Refugee Applications Commissioner was wrong and I was correct. In addition certain country of origin information was also used against me unfairly by the Commissioner. The Tribunal made no reference to this. I find this most unusual in circumstances where the Tribunal appears to have considered other alleged discrepancies in my account without putting them to me.”
I think it is clear that the Tribunal was fully aware of the fact that the applicant was correct in the translation he had given and that the initial approach of the ORAC during the course of interview was not correct. This is expressly referred to in the decision. In the course of the decision of the Tribunal under the heading “The Applicant’s Claim” an account is given of the hearing before the Tribunal and this account is supported by the note taken in the course of the hearing on behalf of the applicant. It is apparent that the applicant was asked a considerable number of questions about the local area, the old name for the town he resided in and other information about local landmarks such as the local stadium. Apart from the matter of the word “waar” which was expressly referred to at an early part of the decision, there is no comment made subsequently to these matters in the course of the Tribunal decision save that contained in the conclusion where it was stated that: “The Tribunal has considered all relevant documentation in connection with this appeal including the notice of appeal, country of origin information, the applicant’s asylum questionnaire and the replies given in response to questions by or on behalf of the Commissioner on the report made pursuant to s. 13 of the Act.”
It would have been helpful if some further comment had been made on these issues in the course of the analysis of the plaintiff’s claim given the emphasis that appears to have been placed on these matters in the course of the hearing before the Tribunal Member. I am conscious that as was set out by Cooke J. in the case of S.S.S. v. Minister for Justice, Equality and Law Reform, a decision maker reaches a single overall conclusion on credibility based on a cumulative impression gleaned from the applicant’s responses to questions on various parts of the claim and on the personal history as given. The Tribunal Member in this case has stated that he has considered all the relevant documentation and the replies given in response to questions. It would, as I have mentioned, have been helpful had the Tribunal Member made some comment on those issues, but I think that an examination of the analysis of the applicant’s claim as set out in the decision will show that those matters were not to the forefront of the Tribunal Member’s mind when it came to making adverse findings on credibility. In essence, the complaint made on behalf of the applicant in respect of these matters is that the applicant was not given sufficient credit by the Tribunal in the course of its decision for those matters in relation to his knowledge of his ethnic group and home town. I do not think that it could be expected that a Tribunal Member is required in the course of their decision to deal with every single question and answer in relation to the local knowledge of an individual applicant for asylum. An applicant may have detailed, credible local knowledge but that will be of limited value if the personal story of the applicant is simply not credible. I can see no basis for complaint on this issue.
In the analysis of the applicant’s claim the Tribunal has set out a number of matters in respect of which serious adverse credibility findings were made. These findings are central to the personal story of the applicant and, I think that it would be appropriate to consider those matters now.
The difficulty in this case arises from a number of specific matters which were referred to by the Tribunal Member in the personal story of the applicant herein. Those are the matters that are dealt with in detail in the analysis of the applicant’s claim as set out in the decision. As previously mentioned, it was noted by Cooke J. in S.S.S. referred to above: “In most instances a Decision Maker reaches a single overall conclusion on credibility based on a cumulative impression deemed from the applicants responses to questions on various parts of the claim and on the personal history as given, including the way in which the story is told, the applicant’s demeanour and his or her reactions when doubt is expressed or discrepancies or contradictions are highlighted.”
I now want to turn to the matters which were expressly relied on by the Tribunal in reaching adverse credibility findings in respect of the applicant herein.
The first adverse credibility finding made by the Tribunal against the applicant related to his evidence surrounding the kidnapping of the applicant on the second occasion subsequent to his father’s death in 2004. It is noted as follows: “His evidence is that he got malaria while working on the farm and because from the illness he was dizzy and unable to work, he was left unguarded and was able to affect his escape.”
The Tribunal Member went on to conclude: “This portion of his evidence had an air of unreality to it, and did not include the type of detail one might expect from a person who had been in such detention.”
An issue was also raised as to whether or not other people were detained with him. During the course of interview the applicant stated: “Three or four people used to watch us every night.”
He was asked whether there were other people detained at the same time, and he said “No”. The Tribunal Member commented that his response to this discrepancy was neither plausible nor credible and he went on to add: “I found this portion of his evidence to be neither plausible nor credible and undermining of the applicant’s credibility because he did not provide any rational or reasonable, plausible or credible explanation for the conflict in his evidence that at one point in this evidence he contended that he was the only person and at another point, he deemed to contend that there were a number of persons detained.”
The next issue dealt with by the Tribunal relates to the period of time the applicant stayed at a neighbour’s house prior to his arranging for him to leave the country. In the course of his evidence to the Tribunal, he said that he had been at a neighbour’s house for three months approximately. It was put to him that his reply was inconsistent with what he had stated during the course of interview and his response was that there was a misunderstanding, and that he had not said that he had stayed at a neighbour’s house for three months. The Tribunal Member in dealing with this issue stated: “In responding to this discrepancy, the applicant did not address the substance of the issue contending simply that there must have been misunderstanding. I found that this undermined the applicant’s credibility because if the applicant had a clear position he would have undoubtedly addressed the substance of the issue and not simply responded by indicating that the interview notes were incorrect. He did not dispute that they were read back to him, nor did he dispute that he signed them.”
The findings set out above in relation to the issue of the applicant’s detention, escape and the number of those being detained, together with the issue as to the length of time he had stayed in a neighbour’s house, are findings, it seems to me, that the Tribunal was entitled to reach having regard to the evidence before the Tribunal. It is not open to the court to substitute its view on credibility issues for the view of the Tribunal Member.
The next negative issue in respect of credibility related to the question of identification documents. The applicant was asked a question in the course of the hearing before the Tribunal Member as to whether or not whether he had any identification and said that he did not think of collecting anything when he was leaving. From this the Tribunal took the view that that response meant that the applicant did have identification documents but simply did not bring them with him. The Tribunal Member concluded that “he did not offer to the Tribunal to acquire these documents and provide them to the Tribunal nor, in my view, had he provided a reasonable explanation for the absence of these documents before the Tribunal, which by his own evidence clearly exist”. Having referred to s. 11B(a) the Tribunal Member went on to conclude that the applicant had not provided reasonable explanation for the absence of such documents before the Tribunal. Again, this seems to me to be a conclusion that the Tribunal was entitled to reach.
I now want to deal with two other aspects of the evidence before the Tribunal. The first of those relates to the method of travel by the applicant through Dublin Airport and the second matter relates to the evidence of the witness who was called in support of the applicant’s claims. In regard to this issue I want to refer very briefly to the comments of the Tribunal Member in regard to travel through Dublin Airport. Having set out the issue, the Tribunal Member stated: “I find it neither plausible nor credible that it is possible to travel through an international airport in the manner contended for by the applicant. ….I find that the applicant has not provided a full and true explanation as to how he travelled to and arrived in this State. I find that this further undermines the applicant’s credibility.”
That is a matter that the Tribunal Member is obliged to have regard to by reason of s. 11B(c) of the Refugee Act 1996 and I cannot see any basis upon which the view of the Tribunal Member can be attacked in this regard. The second matter I want to deal with at this point relates to the evidence provided by the applicant’s witness. Again, it seems to me that the conclusions reached by the Tribunal Member in regard to the weight to be attached to the evidence provided by that witness is a matter within the competence of the Tribunal Member. Accordingly, there is no basis upon which to challenge the decision of the Tribunal in that respect.
There are two further issues which were referred to by the Tribunal Member in the analysis of the plaintiff’s claim in respect of which the credibility of the applicant was found to have been lacking. The first of those relates to the issue of dependants. In the questionnaire filled in by the applicant, he stated that he had no dependants. However, question 29 on the questionnaire asks: “What do you fear may happen to you or to any of the people included in this application if you return to your country of origin? Please explain giving as much detail as possible. …”
The answer given by the applicant was in the following terms: “I fear that the dependants included on this application and I may all suffer the same series of problems that made me flee my country, which I had never thought I would be leaving. I am talking about the killings that were going on. Therefore, I cannot go back to my country.”
This aspect of the matter is dealt with in the analysis of the applicant’s claim as follows by the Tribunal Member:- “The applicant in his questionnaire contends that he has no dependants; however, his response to question No. 29 is that he fears for his dependants included on this application. I find that in this regard the applicant has been less than candid with the Tribunal and it would appear has dependants who are not named. I find that this undermines his credibility.”
No issue was raised before ORAC in relation to dependants. The report made pursuant to s. 13(1) of the Refugee Act 1996 (as amended) deals with the applicant’s claim on the basis that he is a sole applicant. Indeed the report of the s. 11 interview which is set out in the papers herein crosses out the questions relating to children included in the application. The only relevant question at interview appeared at p. 22 of the report of the s. 11 interview where the applicant was asked “do you have any children or are you married?” to which the answer was No.
The second issue that I want to deal with relates to an issue as to blood transfusion. Again I think it would be helpful if I quoted directly from the findings of the Tribunal in this regard:- “The applicant contended that while he had been captured at a militia camp, the militia had taken his blood for use by injured militia men. I found this portion of his evidence to be neither plausible nor credible in circumstances where sophisticated equipment would be needed for the carrying out of such an exercise together with the technical expertise for storage. I found it neither plausible nor credible that such a facility would exist at a farmhouse. I found this portion to be neither plausible nor credible and undermining of the applicant’s credibility.”
It is interesting to note that the issue about blood transfusion is one that was not dealt with previously. The matter arose before the Tribunal in answer to questions relating to the time he had been captured by militia and taken to a militia camp outside the town in which he resided.
In the course of the submissions on this aspect of the matter, counsel on behalf of the respondent referred to a number of judgments namely, Idiakheuea v Tribunal (Unreported, High Court, 10th May, 2005), Moyosola v. Commissioner [2005] IEHC 218 and Olatunji v. Tribunal [2006] 113, to the effect that only matters which are of significance or substance to the decision must be put to an applicant prior to an adverse finding being made. In this context it would be helpful to refer to the judgment of Finlay Geoghegan J. in Olatunji referred to above, where she stated as follows:- “I was referred to the decision of Clarke J. in Idiakheua v. Minister for Justice, Equality and Law Reform and R.A.T. (Unreported, High Court, Clarke J. 10th May, 2005) in which he considered the requirement on a member of the R.A.T. to put matters of concern and/or perceived discrepancy to an applicant and give them an opportunity of dealing with same. In that decision, he stated at pp. 9-10:
‘If a matter is likely to be important to the determination of the RAT then that matter must be fairly put to the applicant so that the applicant will have an opportunity to answer it. If that means the matter being put by the Tribunal itself then an obligation so to do rests upon the Tribunal.
...
This remains the case whether the issue is one concerning facts given in evidence by the applicant, questions concerning country of origin information which might be addressed either by the applicant or by the applicant’s advisors or, indeed legal issues which might be likely only to be addressed by the applicant’s advisors.
In setting out the above I would wish to make clear that the obligation to fairly draw the attention of the applicant or the applicant’s advisors to issues which may be of concern to the Tribunal arises only in respect of matters which are of substance and significance in relation to the Tribunal’s determination.’
I would respectfully agree with the above. On the facts of this application and having regard to the manner in which the Tribunal Member approached the applicant’s claim, the question as to whether the applicant was or was not forced to leave her home is a matter which was of substance and significance in relation to the Tribunal’s determination. Accordingly, prior to the Tribunal Member being entitled to reach a conclusion, adverse to the applicant’s claim that she left Ibadan of her own volition to live with her boyfriend in Lagos, the Tribunal Member was under an obligation to put to the applicant the relevant matters which appeared to the Tribunal Member to support such a conclusion and give the applicant an opportunity of commenting or dealing with same.”
I accept that it is not necessary for a Tribunal Member to put a general inference of incredulity to an applicant. What the cases referred to above say, is that an obligation arises to put to the applicant matters which are of substance and significance in relation to the Tribunal’s determination.
In this case, the Tribunal Member identified a number of matters which were of substance and significance in relation to the Tribunal’s determination. I have no doubt that the majority of those matters are matters which were properly considered by the Tribunal Member having given the applicant every opportunity to deal with them and in respect of which conclusions were reached within jurisdiction by the Tribunal. However, I have two concerns in this case. The first concern relates to the issue of dependants as described above and the second issue relates to blood transfusions. Dealing with the issue of dependants first, it is noteworthy that the point taken by the Tribunal was not one which arose during the course of interview and it was not mentioned in the s. 13 report in this case. In the course of submissions before me it was pointed out that the applicant himself did not fill out the questionnaire, a matter which was stated on the questionnaire itself and not considered by the Tribunal. At several points in the course of the asylum process, he confirmed that he had no children. The question of dependants clearly was a matter of concern for the Tribunal. In those circumstances it seems to me that this is a matter which should have been put to the applicant in circumstances where, given that no issue had ever been raised at any other stage of the asylum process as to dependants, the applicant could not have anticipated that any issue would have arisen on this point. The position in regard to this question is unlike the position in the case of Nikolai v. Minister [2005] IEHC 345, which deals with the general inference of incredulity. I followed that decision in the case of A.C. v. Tribunal [2007] IEHC 359, where I stated:- “As has been said before, an applicant is not a passive participant in the process. The applicant was aware, from the procedures that had already taken place, of the issues that were relevant to his claim. He has the benefit of legal representation. Accordingly it was not for the Tribunal Member to tease out every issue such as the detail of his last meeting with Hamid.”
By contrast with the position in A.C. described above this is a case where the applicant could not have been aware that the issue of dependants was relevant to his claim. Therefore it seems to me that it was necessary to put to him the concerns of the Tribunal in that regard.
It seems to me that a similar problem arises in relation to the conclusions reached by the Tribunal in relation to the question of blood transfusion. The issue of blood transfusion had not been raised at any stage prior to the comment made by the applicant in the course of the hearing before the Tribunal. It was not mentioned in the questionnaire, nor was it mentioned at any stage in the course of the interview, nor was it mentioned in the course of the s. 11 interview. One might comment that the introduction of the issue of blood transfusion at such a late stage, never having been mentioned before, might of itself be a ground for reaching an adverse credibility finding on its own. However, that is not the problem here. The problem as I see it is that the Tribunal Member having referred to the blood transfusions went on to conclude that sophisticated equipment would be needed for the carrying out of such an exercise together with the technical expertise for storage of blood. If that aspect of the matter was the subject of concern for the Tribunal Member, then it seems to me that that, too, was a matter that should have been put to the applicant.
There are therefore, two aspects of the decision of the Tribunal Member in this particular case that cause me concern, as Clarke J. said in Idiakheuea:- “If a matter is likely to be important to the determination of the RAT then that matter must be fairly put to the applicant so that the applicant will have an opportunity to answer it. If that means the matter being put by the Tribunal itself then an obligation so to do rests upon the Tribunal.”
In this case, neither the issue of dependants nor the issue of how blood transfusions could have been taken in a militia camp were put to the applicant. Given the fact that those issues were issues of substance and significance in relation to the Tribunal’s determination, it seems to me that there is no alternative but to quash the decision of the Tribunal and to remit the matter to another Tribunal for further consideration.
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