High Court of Ireland Decisions
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Cite as: [2014] IEHC 569
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Judgment
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Neutral Citation: [2014] IEHC 569 THE HIGH COURT JUDICIAL REVIEW [2009 No. 53 J.R.] BETWEEN C.C.A. APPLICANT AND
MINISTER FOR JUSTICE AND EQUALITY AND BEN GARVEY SITTING AS THE REFUGEE APPEALS TRIBUNAL RESPONDENTS JUDGMENT of Mr. Justice Barr delivered on the 25th day of November, 2014 Background 2. The applicant states that he had participated in the activities of these groups by driving other members to various sites, including to the houses of people who were going to be kidnapped by the group. The applicant stated that in 2004, he obtained employment with a company called RANC which did work for Shell. He stopped carrying out work for MEND at that time. He was employed as a business development manager by that company. 3. In or about 2005, he obtained work directly with Shell. He was employed as a telephone and fax operator with the company. It is the applicant’s case that while working for Shell he imparted certain information to the company about the activities of MEND and in relation to the location of some of their hideouts. As a result of this information, the company was able to secure the release of a number of hostages, who had been kidnapped by MEND. It is also alleged that a number of MEND operatives were killed in the rescue operation. 4. It states that as a result of imparting this information, MEND operatives came to his house one night in November 2007. They kidnapped the applicant and brought him to a forest where he was placed in a deep hole. 5. The applicant states that the MEND operatives left him in the hole because they had other operations in relation to a ship to attend to. According to the applicant a friend of his, who was also a member of MEND, came on the second day and provided a rope with which the applicant was able to make good his escape. 6. The applicant states that he fled first to Zimbabwe, where he spent approximately one month hiding out in a friend’s house in the city of Bulawayo. He then went to South Africa where he stayed for three months. He states that due to an upsurge in violence towards foreigners he decided to leave South Africa. 7. For the sum of $5,000, he was put in touch with an agent who secured his escape to Ireland via Dubai. 8. The applicant arrived in Ireland on 26th May, 2008. He sought asylum on arrival in the State. The applicant filled out the usual ASY1 form and filled out the questionnaire and had an interview. His application for refugee status was declined by the Office of Refugee Applications Commissioner (“ORAC”). He appealed to the Refugee Appeals Tribunal (“the RAT”), who upheld the ORAC decision holding that the applicant’s story was not credible. 9. In these proceedings, the applicant seeks an order of certiorari against the decision of the RAT dated 7th December, 2008. In summary, the applicant claims that the credibility findings made in the RAT decision were made irrationally and without reasons. 10. Counsel for the respondent has argued that the credibility findings under attack in this application have to be viewed against the decision as a whole. In this regard, the following portion of the RAT decision entitled “The Applicant’s Claim” is of relevance:-
The Credibility Findings The Message on a Rope
14. No reason is given by the RAT as to why it found that the account given by the applicant was unbelievable. It would lack credibility if the RAT had found that the account of his kidnapping was not credible. However, the Tribunal did not make that finding, although they did hold that the account of his being left unguarded in a hole was not credible. 15. I am satisfied that it was rational and believable that a friend would come to the applicant’s aid in such circumstances. This assertion by the applicant is dismissed by the Tribunal without any reasoning as to why it was rejecting that assertion. In the circumstances, this finding on credibility cannot stand. Leaving Nigeria and coming to Ireland
Reasons for Seeking Asylum
20. The Tribunal did not engage with the reasons put forward by the applicant. They did not provide any specific or cogent reason for its finding. The applicant did say the reason why he did not seek asylum in South Africa was because “he never thought of it”. That could be understood as meaning that he never thought of making the application simpliciter, or that because of the violence in that country he did not think of trying to seek asylum there. It is not sufficient for the RAT merely to say “his reasons for failing to seek asylum in any of them is not credible”. 21. In the course of argument before the court, the issue arose as to whether the whole finding of the RAT would have to be set aside if the three matters raised were found to be lacking in reasoning. In Bisong v. Minister for Justice, Equality and Law Reform [2005] IEHC 157, the effect of the striking down of a number of findings on credibility was considered as follows:-
‘One’s experience of life hones the instincts, and there comes a point where we can feel that the truth can, if it exists, be smelt. But reliance on what one firmly believes is a correct instinct or gut feeling that the truth is not being told is an insufficient tool for use by an administrative body such as the Refugee Appeals Tribunal. Conclusions must be based on correct findings of fact.’ On the other hand, a Tribunal Member is not expected to accept without challenge or question every account given to him or her. Rather, he or she is expected to weigh, assess, analyse and draw inferences. I have already set out in some detail the findings of the Tribunal Member in relation to credibility. From that, it will be apparent that this was a considered conclusion and went well beyond a mere gut feeling. Instead, the Tribunal Member’s findings on credibility seem to have been arrived at following the accumulation up to some ten factors that she saw as being relevant.”
‘(i) Were reasons given or discernible for the credibility findings? (ii) If so, were the reasons intelligible in the sense that the reader/addressee could understand why the finding was made? (iii) Were the reasons specific, cogent and substantial? (iv) Were they based on correct facts? (v) Were they rational?” 25. I am satisfied that the three findings on credibility at issue in these proceedings were arrived at without adequate reasons being stated. Each of them is discounted with the bald assertion that they are not credible. This was not sufficient. If the Tribunal Member was not going to accept the explanations given, it was necessary to set out in clear terms why this was so. This was not done in this case. As the three impugned findings were part of a wider set of credibility findings which had a cumulative effect in the decision, it is not possible to say whether these were major or minor credibility findings. In the circumstances, it is necessary to quash the entire decision. 26. I will grant an order of certiorari quashing the RAT decision dated 7th December, 2008. I will direct that the applicant’s appeal against the decision of ORAC should be remitted back to the RAT for determination by a different Tribunal member. |
