Neutral Citation: [2014] IEHC 565
THE HIGH COURT
JUDICIAL REVIEW [2010 No. 274 JR]
BETWEEN/
J. A.
APPLICANT AND
THE REFUGEE APPEALS TRIBUNAL,
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE ATTORNEY GENERAL AND IRELAND RESPONDENTS
JUDGMENT of Mr. Justice Barr delivered the 2ndday of December, 2014
1. This is a telescoped judicial review application for an order of certiorari quashing the decision of the Refugee Appeals Tribunal (“the RAT”) dated 1st February, 2010, affirming the recommendation of the Office of the Refugee Applications Commissioner (“ORAC”) that the applicant not be declared a refugee.
Background
2. The applicant, who is a Cameroonian national, was born on 1st July 1970. He is a married man and has four children. His eldest child was born in 1999 and his youngest in 2005. He speaks English and French. He stated that his father was a local coordinator in Social Democratic Front (SDF) and had been a member of the party since its formation in 1990. The applicant claims to have joined the SDF in 2004, at the age of 34. His brother, Paul, was also a member. The applicant stated that he joined when the party was preparing for an election. The intention was to fight for fair and equal treatment for the Anglophone part of Cameroon, which had been marginalised by the government in favour of the Francophone part of the country. As members of the SDF, the applicant stated that he and his brother took part in campaigning. This involved them travelling to different villages and talking to people about joining and supporting the party.
3. The applicant claims that difficulties started to arise in March 2004. He stated that the government sent delegates to his father requesting that he leave the SDF and join the government party, the Cameroon PDM, instead. The applicant’s father refused. He was also asked to change the candidate nominated in his ward so that the SDF would lose. This he also refused to do. The applicant claimed that around two weeks afterwards, on the evening of 16th August, 2004, he, his father and mother, two of his brothers, and his children were in his parents’ house watching television. They heard a loud bang on the door. The applicant claims that the door was then forced open, and around five masked men entered the house. They made the applicant and his family lie down. They told the applicant’s father that “since he does not want to belong to them he should face the music.” They then shot the applicant’s father in the chest, and he died as a result of his injuries. This happened in the applicant’s home village of Ndum, which is close to Mbessa.
4. The following morning, the applicant stated that he and his brother went to the police station to report their father’s murder. He stated that the police station is far away. The applicant claims that the police asked them if they knew who was responsible. The applicant stated that they told the police that they had come to ask them to investigate. The police, however, stated that the applicant and his brother should go and find out who did it and come back to them. The applicant states that it was at this point that he realised the police did not want to help. The next day, 18th August, 2004, the applicant and his brother arranged for the burial of their father.
5. A month subsequently, according to the applicant, he and his brother went to the police again to see if they had investigated their father’s murder. On this occasion, the applicant states that the police accused them of murdering and burying their father. He claimed that they were arrested and sent to New Bell prison in Douala, where they were detained for two weeks. In prison, the applicant claims to have been tortured. He said that he was handcuffed and made to stand on one leg. He also claims that a horsewhip was used on him and that he was flogged every day for two weeks. He states that there were around 50 prisoners in a room. The applicant showed the RAT a scar on his arm. There were, however, no other scars from the horsewhipping.
6. After two weeks in New Bell prison, the applicant and his brother were released. He states that the warder told him that he was surprised about their release and felt it was on account of how their father was killed. The warder told them not to talk about their father’s death any longer. In his evidence to the SPIRASI doctor, the applicant interpreted this episode as a warning. In his questionnaire, at p. 36, he explained: “After two weeks we were released and warned to be silent and promised that when next they arrested us we will not survive it (sic).”
7. The applicant and his brother returned home. Some months later, their mother became ill with high blood pressure. She died as a result of a heart attack in January 2005. After his mother’s death, the applicant states that he was angry about how his parents had died. He said that he engaged a lawyer to petition the governing PDM party, and the police, for killing his parents and unlawfully arresting, detaining and torturing himself and his brother in prison. He claims that the Ministry for Justice sent a letter stating that his case would be heard on 5th April, 2005.
8. However, in March 2005, the applicant stated that he was in his backyard cleaning up a lantern when he heard the noise of an engine at the front of his house. He then heard a bang on the door followed by someone asking his wife, in a loud voice: “Where is James? If you don’t produce him now, we will shoot.” They then shot into the air. The applicant fled in fear for his life. He believes this was the same group as murdered his father and that they came after him because of his petition to the Ministry for Justice.
9. The applicant claims to have walked for ten hours to a town called Belo and to have spent the night there in an uncompleted building. The following day he says woke up and went around the town to see if he could find somewhere to stay. He claims to have stayed with a person called mother Ngbuesi; he claims to have remained there for nearly a year and to have worked as a mason. He states that he had no contact with his family during this time. He did, however, see someone he knew from his home and gave this person some money to give to his wife, but told this person not to tell his family where he was. In his s. 11 interview, however, the applicant stated that he had sent a message to his family and that they knew he was in Belo. The applicant claims that eventually he began to see people he knew and felt that he was no longer safe. For this reason, he claims to have gone to stay with his father’s friend in Yaounde in April 2006. He stayed there for a year. Eventually, his father’s friend told the applicant that people were aware that the applicant was in his house, that it was not safe for him or his family, and said that he had a better plan for the applicant. His father’s friend arranged for the applicant to travel with a friend called Davie, who was a white man. The applicant says that he was not required to pay for his journey. He gave Davie his passport and he arranged the applicant’s travel. The applicant stated that he left Cameroon on 13th May, 2007, and travelled to France and then to Dublin where he arrived on 14th May, 2007. The applicant stated that Davie took his travel documents from him after the journey.
10. The applicant applied for asylum in Ireland on 15th May, 2007, and completed a detailed questionnaire on 22nd May, 2007. He claimed to have a well founded fear of persecution on grounds of race and political opinion. He stated that if he was returned to Cameroon the gang responsible for his father’s death would kill him. The applicant was interviewed by ORAC pursuant to s. 11 of the Refugee Act 1996, as amended, on 27th August 2007. By letter dated 8th October, 2007, ORAC notified the applicant of its decision to recommend that he should not be declared a refugee. The applicant appealed this decision to the RAT by letter dated 29th November, 2007. An oral hearing was held before the RAT on 5th May, 2009. The Tribunal notified the applicant of its decision to affirm ORAC’s recommendation by letter dated 12th February, 2010. The decision was received by the Refuge Legal Service on 15th February, 2010.
Extension of time
11. These judicial review proceedings were instituted on 10th March, 2010. This was outside the statutory time limit laid down by s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000. The respondents, however, are not pursuing this point, and the applicant has in any case provided a satisfactory explanation for the delay by way of affidavit. Accordingly, I extend the time for the bringing of the within judicial review proceedings up to and including 10th March, 2010.
12. I now turn to consider the arguments advanced by the applicant at the hearing of this case.
The RAT’s nine month delay in issuing its decision
13. The applicant complains that there was a delay of 9 months between the applicant’s oral hearing on 5th May, 2009, and the date on which the RAT gave its decision, on 1st February 2010. He submitted that this delay undermined the soundness and cogency of the decision. Counsel said that such a delay undermined the decision because this decision was based entirely on adverse credibility findings and the applicant’s testimony would not have been fresh in the Tribunal Member’s mind 9 months after the hearing. Counsel said that particularly where credibility is an issue, there is a duty to give a decision in a reasonable time. Counsel for the applicant referred the court to Charleton J.’s extempore decision in Balogun v. The Refugee Appeals Tribunal & Ors. (Unreported, High Court, 6th February, 2008). This was a leave application in which there was a delay of nearly four months between the oral hearing on 4th July, 2005, and the delivery of the RAT decision on 28th October, 2005. Charleton J. stated that the delay worried him and he saw fit, bearing in mind the statutory obligation on the RAT to act with expedition, to grant the applicant leave to challenge the RAT’s decision on grounds of delay.
14. In Edobor and Messaoudi v. The Refugee Appeals Tribunal [2005] IESC 15, the applicants sought orders of mandamus in the High Court compelling Mr. Joseph Barnes, the Tribunal Member who had heard their appeals, to deliver decisions in their respective cases. Mr. Barnes had heard the applicants’ cases in March and May of 2003 respectively, but had still not delivered a decision in either case by the time the Supreme Court gave judgment on 16th March, 2005. The applicants relied on the following extract from the judgement of Kearns J.:
In refugee applications where human rights are so essentially at stake, the requirement for speedy adjudication is both self-evident and indeed apparent from the relevant legislation. For example, judicial review applications challenging a decision of the Refugee Appeals Tribunal under s. 16 of the Refugee Act, 1996 must be brought within 14 days of the Tribunal’s determination. Whether or not it is specifically provided for by statute (and it is in this case), there is therefore a clear onus on a member/division of a tribunal who is dealing with business of this nature to do so expeditiously and promptly. This the second named respondent has singularly failed to do, and his failure to provide any explanation for his inactivity only adds insult to injury.
15. By way of reply, counsel for the respondent said that the applicant had not indicated how the delay had adversely affected the decision. She submitted that the High Court had considered the issue of delay in the rendering of RAT decisions in a number of cases since Balogun. In this regard, she referred the court to the judgment of McGovern J. in AMR v. The Refugee Appeals Tribunal [2008] IEHC 108, where the learned judge held that it is important to examine whether the decision maker was impaired by the delay. McGovern J. stated as follows at paras. 7-8:
7. There was no doubt that decisions of this nature should be given as soon as possible and there is an obligation on the Chairperson of the Tribunal to ensure that its business is managed efficiently and disposed of as expeditiously as may be consistent with fairness and natural justice.
8. I do not believe that it would be desirable to set down a rigid rule which states that unless a decision is given within three months of the hearing, that it is therefore reviewable on the grounds of excessive delay. Even where credibility is in issue there may be good reasons for the delay. In addition, there may be circumstances in the particular case which would tend to suggest that the applicant has not been prejudiced by any delay on account of the nature of the evidence considered. It seems to me that each case should be considered on its own merits and be dealt with in a way which is consistent with fairness.
16. McGovern J. continued at para. 10:
10. It seems to me that this is understandable because the decision of the Tribunal member was a lengthy decision of some seventeen pages in which the facts and the legal principles were set out in considerable detail. Judicial review is a discretionary remedy and should not be fitted into rigid confines, save where this is provided for by the Rules of the Superior Courts or by legislation. In my view, the correct approach is to look at the decision in this case and see whether there is anything in it which would tend to suggest that the person making the decision was hampered in some way by the delay between the hearing and the making of that decision. While the applicant contends that the first named respondent did not properly assess the evidence in making adverse credibility findings and engaged in conjecture, it is clear from the decision itself that it contains a detailed account of the applicant’s case and in no way supports a contention that the decision maker may have been hampered due to the length of time between the hearing and the date of the report. The notes of the hearing and all relevant material was before him and there is nothing to suggest that the Tribunal member was acting on memory. In so far as he made an assessment as to the credibility of the applicant this was on the basis of information recorded in written form. For this reason, and because it was not one of the matters contained in the statement of grounds, in the exercise of my discretion I reject the submission that the delay in issuing the decision is a basis on which leave to apply for judicial review should be granted in this case.
17. Counsel for the respondent said that the applicant had failed to show that the RAT was hampered in any way by the delay in rendering its decision. She further pointed out that the adverse credibility findings in this case did not stem from the applicant’s demeanour - they flowed from issues relating to the paper based appeal.
18. In T.A. and O.J.O. v. The Refugee Appeals Tribunal [2014] IEHC 204, Mac Eochaidh J. held that it is not sufficient for an applicant simply to plead that there was a delay between a hearing and when a decision is rendered, including where the decision relates to adverse credibility findings. Mac Eochaidh J. stated as follows at paras. 20-21 of his decision:
20. The final substantive complaint raised by the applicant was that the respondent is in breach of the duty to determine appeals within a reasonable time and that the delay in determining the appeal led to errors in her assessment of credibility and resulted in a prejudice to the applicants. In my view the applicants in this case have failed to show any prejudice on their behalf, or indeed, to make out any errors in the Tribunal Member's assessment of their claim owing to what is a relatively short delay. In this regard, I follow the findings of Finlay Geoghegan J. in S.I. v. Refugee Appeals Tribunal [2007] IEHC 165, where a similar period of delay occurred and where the court took the view that, "in the absence of special or specific facts or factors capable of supporting a contention that the delay renders the decision unlawful or invalid, such delay cannot of itself amount to a substantial ground for contending that the decision is invalid."
21. Further, it is clear from the decision of Cooke J. in V.C.B.L. v. Refugee Appeals Tribunal [2010] IEHC 362 that "…in the absence of a material mistake of fact producing an error of law, the mere lapse of an excessive period of time between the hearing and the decision does not, in the judgment of the Court, give rise to a ground which, by itself, entitles an applicant to an order of certiorari. An administrative decision does not become unlawful by reason of delay alone. Delay may explain or be the cause of a defect in a decision but is not by itself a ground to annul it in the absence of some consequential error or wrong." I am not of the view that the period of delay in this case could, in any respect, be called "excessive" and nor was there a material mistake of fact in this case. Even if the delay were so excessive, it would not be sufficient, by itself, to entitle the applicant to an order of certiorari . I reject the applicants' challenge to the decision on this ground also.
19. While a delay of nine months between the oral hearing and the delivery of a decision by the RAT was significant, the applicant has, it seems to me, failed to showthat the decision was undermined or rendered defective by reason of the delay. The above extracts from judgments of McGovern J. in AMR v. The Refugee Appeals Tribunal [2008] IEHC 108 and Mac Eochaidh J. in T.A. and O.J.O. v. The Refugee Appeals Tribunal [2014] IEHC 204 clearly establish that in order for delay to render a decision unsafe, the applicant has to show that the delay adversely affected the decision. Because the applicant has not done so in this case, this ground must fail.
The credibility findings
20. The RAT’s adverse credibility findings in respect of the applicant are at the heart of its decision. The primary grounds upon which the RAT rejected the applicant’s credibility are, briefly, as follows:
(i) The applicant’s account to the SPIRASI doctor of his torture and mistreatment during the two weeks that he claims to have been detained in New Bell prison changed substantially when recounted to the RAT at hearing. In particular, he told the doctor he had been horsewhipped on one occasion as a result of which he sustained one 2-inch scar on his arm. In contrast, he told the RAT that he had been horsewhipped every day for two weeks.
(ii) He gave no evidence of seeking medical attention after his two weeks in prison during which he claimed to have been mistreated and tortured.
(iii) That it does not seem credible that the applicant and his brother would be released so easily from prison if their captors were so intent on keeping them quiet.
(iv) The applicant’s lack of awareness of the subscription fees for SDF membership; the fact that he claims not to have joined until he was 34; and his lack of awareness of Study Group 89 which was the original think tank on the issue of the marginalisation of the Anglophone community in Cameroon, undermined his assertion to have been a party member.
(v) The core of his claim was that he had to leave Ndum because he was in fear of being killed by the same gang that he claims murdered his father, and that he subsequently had to leave Belo, and later Yaoundé, because people began to recognise him and he feared discovery. It was this fear of discovery that drove the applicant to leave Yaoundé in May 2007 and to seek asylum in Ireland. Despite this, the applicant submitted to the RAT a membership card for the Ndum Christian Youth Organisation - which dated from December 2006, when he claimed to have been in hiding in Yaoundé - which he and the president of that group had signed on the same day. The RAT concluded that this card seriously undermined his claim because it indicated either (i) that he was in Ndum in December 2006 signing the card with the president of the organisation and did not, therefore, have any fear about being in Ndum; or (ii) that the card was delivered to him, in which case he was not afraid of letting people know where he was, which contradicted his core claim.
21. The applicant took issue with each of these findings. He also made a general complaint, at para. 8 of his affidavit, that he was given no indication by the RAT at hearing that his credibility was in doubt. In light of the fact that the applicant’s case had been rejected by ORAC on credibility grounds, he was, consequently, on notice of the fact that his credibility was in doubt. As Birmingham J. observed in Chukwuemeka v. The Refugee Applications Commissioner (extempore, High Court, 7th October, 2007):-
I have no doubt that at the appeal stage the applicant and his legal advisers in this present case will be considerably advantaged by having had the ORAC report, highlighting as it does perceived weaknesses and inconsistencies, and thereby providing an opportunity for these issues to be addressed. In effect, the applicant has had his proofs advised.
This is not, therefore, a submission I am prepared to accept.
22. I now turn to consider the grounds for the RAT’s negative credibility findings which were challenged by the applicant at hearing.
The SPIRASI report
23. The applicant took issue with the RAT’s finding that there was a discrepancy between the account he gave to the SPIRASI doctor about his imprisonment and torture and that which he gave to the Tribunal. The applicant told the SPIRASI doctor that:
“...while in prison he was made to stand on one leg for hours and was beaten if he put his other leg on the ground. He says he was beaten with a horsewhip and sustained a cut from it. Mr. A. states that he was detained in a small room with 50 other people and that they had to stand in the room... He says he was beaten by the other inmates and that he was not able to sleep... Mr. A. claims that other people who were in the cell with him died. He alleges that he was beaten all over, including on the soles of his feet. He says that he was released later in November 2004 and that he was told not to mention his father’s death again.”
24. The SPIRASI report notes: “Mr. A. had a broad, two-inch scar on his upper left forearm on the anterior surface, as a result of being hit with a horse whip while he was detained.” The SPIRASI report concluded that this scar “would be consistent with the injury he reports causing it in prison.”
25. Recounting the same incident to the RAT, the applicant claimed that his captors:
“...handcuffed him and made him stand on one leg and used a horse whip on him. He was flogged every day for two weeks and about 50 of them were in a room. He showed the tribunal a scar on his arm. He has no other scars from the horsewhipping. He was released and said the warder told him he was surprised about their release and he felt it was because how their father was killed and told them not to talk about their father’s death any longer.”
26. The RAT reached the following conclusion:
It seems to the tribunal that if this man was flogged every day for two weeks with a horsewhip he would have more than one two inch scar on his forearm. His version to his doctors does not mention this repeated flogging on a daily basis, it just refers to his being hit with a horsewhip. He failed to mention in evidence being beaten on the soles of his feet or the beatings he allegedly sustained from other inmates. Furthermore after being released he went home and gave no evidence of seeking medical attention which one would imagine would be required if one was flogged daily and beaten frequently over a two week period. Thus his version of what occurred changes substantially in the telling at hearing and with the doctor. This undermines his credibility.
27. Counsel for the applicant submitted that this credibility finding, based on the Tribunal’s view that the applicant’s account to the SPIRASI doctor had changed substantially by the time he gave evidence to the RAT, is irrational. I cannot accept that submission. It is clear from reading the two accounts that the applicant told the SPIRASI doctor that he was hit with a horsewhip - he did not claim to have been horsewhipped daily, as he did at the RAT hearing. At the RAT hearing he also failed to mention being beaten by other inmates and on the soles of his feet. These changes in the applicant’s account are significant. The Tribunal was therefore entitled to reach the conclusion that it did on the basis of the evidence before it. There is no irrationality in this aspect of the RAT decision.
28. The applicant further complained that the RAT’s conclusion that he would have had more than one scar had he being horsewhipped every day for two weeks was based on conjecture and speculation. Again, I do not accept this submission. The applicant told the SPIRASI doctor that he had been hit with a horsewhip and the doctor concluded that the two-inch scar on the applicant’s forearm was consistent with this account; in other words, the applicant had one scar and that this was consistent with being hit with the horsewhip on one occasion. I think it was reasonably open to the RAT to conclude that if he had been horsewhipped every day for two weeks the applicant would have sustained more than the one scar identified by the doctor. As Birmingham J. observed in I.K. v. The Refugee Appeals Tribunal [2008] IEHC 173:
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.
29. It seems to me that the RAT’s conclusion in this regard was one that was reasonably open to it and flowed from a rational analysis of the evidence. This is not, therefore, a finding which this court should disturb.
RAT discounted the SPIRASI report
30. The applicant claims that the RAT discounted the SPIRASI report in breach of the principles laid down by Cooke J. in I.R. v. Minister for Justice & Ors. [2009] IEHC 353.In that case, the learned judge held that “where an adverse finding involves discounting or rejecting documentary evidence or information relied upon in support of a claim and which is prima facie relevant to a fact or event pertinent to a material aspect of the credibility issue, the reasons for that rejection should be stated.”
31. In the present case it seems that the RAT carefully considered the SPIRASI report but, in light of the inconsistencies between the account the applicant gave to the SPRIASI doctor, and that which he gave to the RAT, the corroborative value of the SPIRASI report was significantly undermined. Moreover, the SPIRASI report merely finds that the applicant’s 2-inch scar is “consistent” with the account he has given, which is the second lowest level on the Istanbul Protocol consistency scale. This rendered the SPIRASI report of little corroborative significance. I therefore accept the respondent’s contention that the RAT’s treatment of the SPIRASI report was in accordance with Cooke J’s decision in K. v. The Refugee Appeals Tribunal [2011] IEHC 125, where the learned judge stated, at para. 19:
The report of Dr. O'Sullivan dated 22nd November 2005, having listed the various scars and marks presented by the applicant, expresses its only opinion in the following sentence: "The scars and the marks have the random appearance of repeated physical abuse which could be consistent with the story that he gives". Clearly, this is an opinion at the lowest end of the consistency scale. In the absence of any expression of view to the effect that the scars and marks could only have been inflicted by another person as an act of violence, the corroborative value of the medical report in these circumstances was negligible in so far as the claim was based upon the mistreatment described in the military camp. The Tribunal member did not reject the medical evidence as being unreliable as such, but because, having disbelieved the applicant's claim to have been detained and mistreated as he described, the medical evidence as it stood did not weigh in the balance to make the account credible.
The Tribunal misunderstood core of applicant’s claim
32. The applicant complains that the Tribunal misunderstood the core of his claim: that it placed too much emphasis on whether the applicant himself was a member of the SDF when, in the applicant’s view, the focus of the Tribunal’s analysis should have been on the events surrounding his father, namely his father’s political activity with the SDF and subsequent murder by the gang in Ndum, and the applicant’s mistreatment, torture, and persecution when he pushed for an investigation into his father’s death. The applicant says that his own SDF membership was a peripheral issue and that the Tribunal’s adverse credibility finding in respect of the applicant’s lack of knowledge of the fees payable for party membership or Study Group 89 was irrelevant and peripheral to the core of his claim. The RAT finding in this regard is expressed in the following terms:
He said at interview that he didn’t pay any subscription fees and at hearing he then said he believes his father might have done so. The information at Tab C relating to membership of the SDF indicates that fees are paid annually and/or a monthly contribution. When asked why he waited until 34 to join the party he said he didn’t like the way his area was being marginalised. However, the Study Group 89 about which the applicant was also unaware was the original think tank on the issues of marginalisation of the Anglophone minority from which the party originated. Thus his lack of knowledge about this group coupled with the fact he didn’t pay fees; his then saying he thinks his father might have paid for him all serve to undermine his assertion that he ever belonged to the party. That his father would be paying fees for his 34 year old son is dubious to say the least and his sudden late vocation to politics in circumstances when marginalisation was an issue since 1989 undermines his credibility.
33. The court cannot accept the applicant’s submissions on this issue. The applicant claimed to be a member of the SDF. This claim was part of his narrative. The country of origin information indicated, inter alia, that a fee was payable for party membership. The applicant, when asked about this, said that he felt his father paid the fees. It was reasonably open to the Tribunal to find that this account was dubious. I cannot see any irrationality or unreasonableness in this conclusion or in the reasoning leading up to it. While the question of the applicant’s membership of the SDF may not have been at the very heart of his story, it was a relevant part of it, and it was open to the Tribunal on the basis of its rational analysis of the applicant’s testimony, and in light of the applicable country of origin information, to make the adverse credibility finding that it did. Accordingly, there is no unreasonableness or irrationality in this aspect of the RAT’s decision that would entitle this court to disturb it.
Ndum Christian Youth Association membership card
34. The applicant argued that the RAT’s finding that the Ndum Christian Youth Association membership card seriously undermined the applicant’s claim because it placed the applicant in Ndum at a time he stated he was in Belo, or, alternatively, that it showed he was disclosing his location when he said he feared discovery, is irrational and unreasonable for a number of reasons. First, the applicant pointed out that the document of itself gives no indication as to where it was signed. Secondly, it ignored the applicant’s evidence that “Ndum is in Belo”, and that when he fled Ndum for Belo it was “a 10 hour walk”. Thirdly, the relevance of the document was that it was originally submitted as an ID document. The Tribunal’s finding in respect of the membership card is in the following terms:
He submitted a membership card of a Christian group. It was issued on 26/12/06 and signed by the applicant. It is a membership card of Ndum Christian Youth Association and is co-signed on the same date by the president of the group. Thus it appears that the applicant was in Ndum signing his signature along with the president of this group in December 2006 when he was allegedly avoiding his home area or any contact with people from it. Even if this was done at a distance, which is unlikely, given both signatures were signed the same day, it indicates that even if this was the case, the applicant had no qualms about letting this group in Ndum know of his whereabouts which are not the actions of a man who wants his whereabouts kept secret and contradicts his assertions that he didn’t want people to know where he was. Thus either he was in Ndum which in my view unseats his entire claim or at the very least, he clearly has no fear of being located at all. Either way, this document undermines his claim.
35. It seems to me that the Tribunal’s conclusions in respect of the Christian Youth Organisation membership card were reasonably open to it in light of the evidence. The applicant stated in his evidence that having fled from Ndum in March 2005, he walked for 10 hours to Belo. He stated that he stayed there for about a year from March 2005 to April 2006. He then moved to Yaoundé, which is some distance away, where he lived with his father’s friend for a year before travelling to Ireland in May 2007. On 26th December, 2006, which is the date the membership card was signed by both the applicant and the president of the Ndum Christian Youth Association, the applicant claims to have been in Yaoundé. Yaoundé is quite some distance from Belo which, according to the applicant, is where Ndum is located. In this regard, it is important to recall that the applicant claimed that he had to leave Belo because some people from his village realised he was there, so he went to Yaoundé instead. He similarly claimed that his eventual decision to leave Yaoundé and come to Ireland was because people became aware that he was staying there with his father’s friend and that he feared discovery.
36. For these reasons I can see no flaw in the RAT’s conclusion that (i) the applicant was either in Ndum to sign the card on the same day as the president of the organisation - which, as the Tribunal correctly finds, would unseat his entire claim; or, (ii) in the alternative, that if the card was delivered to the applicant, this would indicate that he had no fear of letting people know where he was and of being located. Either way, there is no defect in the reasoning that led the Tribunal to conclude that the membership card seriously undermines the credibility of the applicant’s narrative, centred as it is on his fear of people from Ndum becoming aware of where he was living, and the gang which murdered his father thereby learning of his location and coming to kill him.
37. Unfortunately, however, the applicant was not given an opportunity at the RAT hearing to comment on or to respond to the matters arising on foot of the Tribunal’s consideration of the membership card. This brings me to the applicant’s next complaint.
Issues arising from the membership card not put to the applicant
38. The applicant argues that because the RAT based its negative credibility finding in respect of the core of the applicant’s claim on the membership card, the issues surrounding the card ought to have been put to the applicant at hearing. The applicant says that this is an audi alteram partem issue and that the failure of the Tribunal to put these issues to the applicant constitutes a breach of fair procedures.
39. In reply, the respondent cited a number of authorities in support of the proposition that it is unnecessary for the Tribunal to put to the applicant every point upon which the applicant’s credibility is doubted. In T.A. and Ors. v. The Refugee Appeals Tribunal [2014] IEHC 204, Mac Eochaidh J. stated as follows at paras. 18-19 of his decision:
18. ...There is a line of jurisprudence, as highlighted by counsel for the respondent, which makes clear that while the Tribunal Member is conducting an inquisitorial function and is required to give a reasonable opportunity to the applicant to know the matters likely to affect the judgment, it is not required to enter into a debate with an applicant. As McMahon J. stated in P.S. v. Refugee Applications Commissioner [2008] IEHC 235:
"Clearly, not every matter must be put to the applicant or to her advisors. It is not incumbent on the Commissioner after every question is answered to say to the applicant:- 'I am not sure I believe your answer. It may be when I assess the matter fully and examine the evidence in its totality that I will reject your answer to this question. What have you to say to that?' It is quite clear to all who participate in this exercise especially where the applicant is assisted by legal advisors, that the application will be at risk if the applicant is not believed, and that the principal onus of proof lies on the applicant who is in appropriate cases to be given the benefit of the doubt."
19. Further, I concur with the dicta of Hedigan J. in B.N.N v. Refugee Applications Commissioner [2008] IEHC 308, who stated that:
"[33] It would be completely impossible to reach an expeditious conclusion if a decision-maker was required to debate with the person who is to receive the decision each and every one of the conclusions on credibility that he was going to reach. Moreover, if a decision-maker was to say to a person, in respect of each dubious comment, "I don't believe that is true", the person telling the story would lose the nerve to tell their story, true or false. It is important to bear in mind that the Office of the Refugee Applications Commissioner officer is not conducting a criminal trial. Rather, he or she is conducting an investigative procedure, on an inquisitorial basis."
40. These authorities clearly establish that there is no obligation on the Tribunal to put to an applicant each and every matter, no matter how small, which may affect the Tribunal’s ultimate decision in respect of the applicant’s credibility. Such a requirement would in any case be unhelpful insofar as it would inhibit an applicant in telling their story and it would, moreover, make the RAT’s job of determining the applicant’s case expeditiously very difficult.
41. Nevertheless, in circumstances where an adverse credibility finding is to be made on the basis of documentary evidence in respect of a core aspect of an applicant’s case there is, it seems to me, an obligation on the decision maker to put this matter to the applicant so that he is afforded an opportunity to respond and to put forward his side of the story. This is a basic requirement of fair procedures and constitutional justice by which all administrative decision makers are bound. In Idiakheua v. The Refugee Appeals Tribunal [2005] IEHC 150, for example, Clarke J. held that as a matter of fair procedures, inquisitorial bodies have a continuing obligation to bring to the attention of any person whose rights may be affected by their decisions “any matter of substance or importance which that inquisitorial body may regard as having the potential to affect its judgment.” The learned judge held as follows:
“...it seems to me that whatever process or procedures may be engaged in by an inquisitorial body, they must be such as afford any person who may be affected by the decision of such body a reasonable opportunity to know the matters which may be likely to affect the judgment of that body against their interest. [...]
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. Even if, subsequent to a hearing, while the Tribunal member is considering his or her determination an issue which was not raised, or raised to any significant extent, or sufficient at the hearing appears to the Tribunal member to be of significant importance to the determination of the Tribunal then there remains an obligation on the part of the Tribunal to bring that matter to the attention of the applicant so as to afford the applicant an opportunity to deal with it. 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 applicants 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.
42. In this case, the RAT made adverse credibility findings in respect of the core of the applicant’s asylum claim on the basis of the Ndum Christian Youth Organisation membership card. The card was referred to by the applicant at the time of completing his initial questionnaire. It was produced at that stage. It was not the subject of any questions in the s. 11 interview. It was not mentioned in the s. 13 report, nor was it mentioned in the RAT hearing. The membership card, in the RAT’s view, “unseats his entire claim” because it indicates he was in Ndum or, alternatively, shows that he had no fear of being located at all; either way, the RAT concluded, this card “seriously undermines” the applicant’s case. This is the central credibility finding made by the RAT in respect of this applicant. It was, therefore, clearly a matter of substance, and it seems to me that this is exactly the kind of situation about which Clarke J. was concerned in Idiakheua. I am therefore of the view that the RAT’s failure to put matters arising from the membership card to the applicant constitutes a breach of fair procedures and renders the RAT’s assessment of this core aspect of the applicant’s claim flawed.
Conclusion
43. I am satisfied that because this flawed determination went to the very heart of the applicant’s claim - and there can be no doubting the importance the RAT attached to this finding - the RAT decision in respect of the applicant’s credibility is unsafe and must, accordingly, be quashed. I therefore make an order quashing the decision of the RAT and remit the matter for consideration by a different Tribunal member.
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