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Cite as: [2015] IEHC 9
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Judgment
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Neutral Citation: [2015] IEHC 9 THE HIGH COURT JUDICIAL REVIEW [2011/ No. 293 J.R.] IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED) IN THE MATTER OF THE IMMIGRATION ACT 1999 (AS AMENDED) IN THE MATTER OF THE ILLEGAL (TRAFICKING) ACT 2000 (AS AMENDED) AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 SECTION 3(1) BETWEEN B. (Nigeria) APPLICANT AND
REFUGEE APPEALS TRIBUNAL MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM ATTORNEY GENERAL IRELAND RESPONDENTS JUDGMENT of Ms. Justice Stewart delivered on the 15th day of January, 2015 1. This is a telescoped application for leave to seek judicial review, seeking an order of certiorari to quash a decision of the Refugee Appeals Tribunal dated the 15th March, 2011, and remitting the appeal of the applicants for a de novo consideration by a separate tribunal member. Background 3. The applicant arrived in Dublin on the 6th November, 2009, and states that she was taken, by the agent, to Belfast where she was arrested attempting to board a ferry to Scotland on the 29th November, 2009. She was detained by the United Kingdom authorities until being returned to the Irish authorities on the 14th July, 2010. She claimed asylum on that date based upon persecution in Nigeria for reasons of race and social grounds. The applicant was interviewed by the Refugee Applications Commissioner on the 29th September, 2010, and her claim was rejected by the Commissioner in a letter of the 9th November, 2010, which stated that adverse credibility findings, as well as findings in respect of internal relocation, had been made against the applicant. A notice of appeal was submitted to the Refugee Appeals Tribunal on the 22nd November, 2010, and a hearing was held on the 10th March, 2011. By letter dated the 15th March, 2011, the applicant was notified that the appeal was unsuccessful. Impugned Decision
Submissions 7. The applicant contends that the section entitled “Analysis of the Applicant’s Claim”, in the decision of the RAT, can be divided into two parts, the first part dealing with the substantive claim and the second part dealing with credibility. In relation to the substantive claim in the first paragraph, counsel for the applicant referred the Court to p.112 of the booklet of pleadings and p.15 of the RAT decision. Under the heading “Analysis of the Applicant’s Claim”, the first paragraph, the applicant contends, is evidence that she is a member of a social group and this is backed up by country of origin information. At p.114 the tribunal states as follows:
9. The applicant stated that K.D. is an authority for the proposition that where adverse credibility findings are made there is no requirement for the Court to carry out a full assessment of internal relocation in accordance with reg. 7 of EC (Eligibility for Protection) Regulations 2006 (S.I. 518 of 2006). On the other hand, the decision of Mr. Justice MacEochaidh in E.I. is submitted as authority for the proposition that it is dependent upon whether the internal relocation finding was equivocal or unequivocal. If a decision by a tribunal member is to stand or fall on an internal relocation finding then it must be properly analysed in accordance with the regulations. This latter view was urged upon the Court. 10. In relation to the credibility findings made by the tribunal member that are set out in p.112, the applicant submitted that, firstly, they relate to peripheral matters and are not concerned with refugee issues which are at the heart of s.2 of the Convention; secondly, it is obvious that the applicant gave a considerable amount of information to the tribunal member, which is set out in pp.98-101 in the summary of her evidence; and thirdly, that in relation to some questions the answer was “I don’t know”. The applicant argues that the tribunal member does not seem to have allowed for the fact that that this answer may be true. The applicant’s evidence was that she was doing what an agent had directed her to do. The applicant cannot be expected to know the agent’s mind of her own knowledge. The tribunal member spoke a lot about demeanour and the applicant submitted that this is a dangerous road for a tribunal member to go down as there could be cultural factors between the applicant and the tribunal member. The applicant stated that the use of the word ‘brazen’ by the tribunal member was an inappropriate comment and that it was tantamount to showing that the tribunal member did not have an open mind when making the decision. The applicant contended that although country of origin information confirms that certain women are suspected of being witches in Nigeria, the tribunal member does not give any reasons as to why she does not accept that story advanced by the applicant. The Court was referred to Hathaway (second edition, 2004) where the dangers of relying on demeanour are addressed and, the applicant submitted that in this case there seemed to be an over-concentration on demeanour. The Court was referred to the decision of Mr. Justice Hogan in F.O.O. (Nigeria) v. Refugee Appeals Tribunal & anor. [2012] IEHC 46, a decision delivered on the 2nd December, 2012, where at para. 8 thereof he stated as follows:
“The lynx-eyed judge who can discern the truth teller from the liar by looking at him is more often found in fiction or in appellate judgments than on the bench.”
‘In most forms of adversarial dispute the assessment of the credibility of oral testimony is one of the most difficult challenges faced by the decision-maker. The difficulty is particularly acute in asylum cases because, almost by definition, a genuine refugee will be someone who has fled home in circumstances of stress, urgency and even terror and will have arrived in a place which is wholly strange to them; whose language they do not speak and whose cultures may be incomprehensible. Inevitably, many will have fled without belongings or documentation from areas in a state of anarchy or from the regimes responsible for their persecution so that obtaining any administrative evidence of their status and even identity may be impractical, if not impossible’.” 14. The respondents submitted that the substantive finding in this case is one of credibility. Mr. Tim O’Connor B.L. points out that at p.112 of the booklet it is made absolutely clear by the tribunal member that it is a question of credibility and it is to do with her candour. At p.112 the tribunal member stated:
The Applicant was queried on the information made available from the UK Authorities regarding her Application for a Visitor’s Visa, a copy of which is on the file and indicated that she was a married woman and that she had family in Ireland. The Tribunal asked is she was a married woman (sic) and she said ‘no’. She was asked if she had family in Ireland, as stated in the Visa Application and she said ‘no’. She was asked if she had friends in Ireland and the same reply ‘no’, also there was the same response to the query if she had family or friends in the UK. When the applicant was asked why she was heading onto the ferry en route to the UK if she knew nobody there, she said ‘I don’t know’. The Tribunal told the applicant that she could not believe the answers she provided to any of the questions being put to her and reminded her that it was incumbent on an Applicant to tell the whole truth, and request her to start telling the truth. She was asked why would her Application Form for a Visitor’s Visa to Ireland state she had a named husband and when she had admitted she had made the application for a Visitor’s Visa, if that was not the case and she said ‘I don’t know, I didn’t make the Application’ and she refused to give any form of explanation to the questions put to her, when she had already said she travelled to Bauchi State with the Agent to get the documents. It was very clear to the Tribunal for the duration of the hearing that this applicant was only given the barest of responses or a series of ‘I don’t know’s’ to the very reasonable questions put to her by the Tribunal or the PO in their efforts to try to establish what brought this Applicant to this country, in the circumstances she claimed in the story she gave, when it would appear she had applied for and got a Visitor’s Visa to visit relatives or family and at Interview and at the Hearing to deny the details she provided to the Irish Authorities in Abuja. The Applicant was not a co-operative witness. There was nothing in her story that could allow the Tribunal to give the Applicant the benefit of the doubt.”
16. The respondents submit that in this case the decision-maker states unequivocally and makes a clear finding in relation to the lack of credibility on the part of the applicant. It is submitted by the respondents that the applicant in this case is asking the Court to substitute its views on credibility findings for those of the tribunal member. The respondents argue that the findings of the tribunal member were not based on the demeanour of the applicant but based on the manner in which she gave her evidence and the words she used and words not used, in relation to the visa application, in relation to whether she was married or not and in relation to contact with her family or not. 17. The respondents contended that the findings made in respect of the applicant arose out of the responses which she gave to the questions posed to her. It is further submitted that credibility findings are required by the legislation and are at the heart of asylum applications. Counsel pointed out that there is no mention of economic migration at all in the decision of the tribunal member and what you have is an unequivocal finding that the applicant is not a refugee within the meaning of the Convention. 18. This is a judicial review proceedings and it is not for this Court to substitute its own view for that of the decision-maker. What is at issue here is the process and procedure adopted by the tribunal member, whether or not the applicant’s claim was analysed by the tribunal and whether or not I am satisfied that the decision was adequately reasoned. 19. It seems to be that the tribunal member has set out very clearly the basis on which she arrived at her decision. The findings on credibility are not generalised. Specific findings are made by the tribunal member, and I do not accept that the decision was made on the basis of demeanour but rather on the basis of the answers, or lack thereof, supplied by the applicant, and the monosyllabic nature of those answers on the numerous occasions outlined in the tribunal member’s decision. It was open to the tribunal member to reach a determination in respect of the credibility of the applicant based on the evidence given to the tribunal. There were inconsistencies apparent between the evidence the applicant gave to the tribunal and the documentary evidence available to the tribunal, such as her reasons for coming to Ireland, the information submitted in the Visitor Visa application, whether or not she was married, and whether or not she had family in Ireland or in the UK. I do not accept that the findings on credibility are peripheral. They are central to the claim made by the applicant, which she failed to address and /or substantiate before the tribunal. 20. The tribunal member having made an unequivocal finding that the applicant’s story lacked credibility and having done so, referred in passing to the prospect of internal relocation, was entitled in my view not to consider that matter further in accordance with the principles set out in K.D. and E.I. (supra). 21. In my opinion, these are sufficient to ground the findings made by the tribunal member. Accordingly, I refuse the applicant’s request for leave to seek judicial review for the reasons set out above and am not therefore required to make any orders in respect of the substantive reliefs (this being a telescoped hearing). |
