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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> J.N -v- Refugee Appeals Tribunal & Ors [2013] IEHC 20 (29 January 2013) URL: http://www.bailii.org/ie/cases/IEHC/2013/H20.html Cite as: [2013] IEHC 20 |
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Judgment Title: J.N -v- Refugee Appeals Tribunal & Ors Neutral Citation: [2013] IEHC 20 High Court Record Number: 2009 230 JR Date of Delivery: 29/01/2013 Court: High Court Composition of Court: Judgment by: Mac Eochaidh J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 20 THE HIGH COURT JUDICIAL REVIEW [2009 No. 230 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 IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED), IN THE MATTER OF THE IMMIGRATION ACT 2003 (AS AMENDED), IN THE MATTER OF THE IMMIGRATION ACT 2004 AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 SECTION 3(1) BETWEEN J. N. APPLICANT AND
THE REFUGEE APPEALS TRIBUNAL THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL, IRELAND RESPONDENTS JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 29th day of January 2013 1. This application for leave to seek judicial review was dealt with as a ‘telescoped’ hearing with the consent of the parties. This means that only one hearing is required to determine whether leave should be granted and if so, whether to grant or withhold the substantive reliefs sought. 2. The applicant in this case is seeking an order of certiorari quashing the decision of the Refugee Appeals Tribunal (the “Tribunal”) of 2nd February 2009 affirming the recommendation of the Refugee Appeals Commissioner notified to the Applicant on 16th February 2009 refusing her refugee status and an order that the matter to be remitted to the Tribunal. Background 4. The applicant claimed that while in Lagos she met a man named “Obi” who became her boyfriend. In March 2000 he told her that the police were looking for him in connection with an armed robbery and that the police had tortured his brother Titus Obi and had requested 7000 Naira from his mother to take Titus to hospital. The applicant states that Titus Obi subsequently died of his injuries in hospital. She claims that her boyfriend Obi told her to go somewhere safe as the police would torture her too if they captured her. At this point the applicant claims she went back to Benin City where she stayed with an old school friend from the year 2000 to 2007. She claims that she did not leave the compound in which she was staying for the duration of this seven year period out of fear of capture. 5. The applicant stated that she returned to Lagos in 2007 in order to get on with her life. She had not seen or heard from Obi during the seven years while she was in hiding. The applicant claims she was living with Tina during this time and that three uniformed policemen came to the house looking for her within a short time of her return to Lagos. The policemen asked her if she knew Obi and she admitted to them that he was her boyfriend. At this point the policemen told her that they were arresting her and taking her to the police station. The applicant alleges that the three policemen took her instead to an unfinished building and raped her. She claims that she managed to escape the three men by crawling away while they were having a cigarette and that she was helped by a nearby stranger, “Mr. James”. The applicant alleges that Mr. James took her in, called a doctor for her and later made arrangements and brought her first to England and then Belfast, before putting her on a bus to Dublin. She arrived in Ireland and made her application for asylum on 30th October 2007 claiming fear of persecution as a member of a particular social group. 6. The Office of Refugee Applications Commissioner (ORAC) made a negative recommendation on the applicant’s claim for refugee status in their report. The applicant essentially claims she fears persecution from the Nigerian police and that she was raped by three police officers in uniform who were looking for her boyfriend Obi. Her claim was recommended for rejection primarily as there were concerns about her credibility, ORAC stating: “…there are a number of credibility issues in the applicant’s account. She lived in Benin City without incident for seven and a half years and there is no reason to believe that the police would have any knowledge of her. She has very little knowledge of her former boyfriend and his family and after such length of time it would not be reasonable for her to know of his whereabouts. Furthermore, it is considered unlikely that the police in Lagos would still be investigating an armed robbery case for over seven and a half years. The actions of the police in relation to her allegation of rape by them may well have been opportunistic and as such must be seen as a criminal matter. Her claim does not appear to be founded on any of the grounds of race, religion, nationality, membership of a particular social group or political opinion as defined in the 1951 Geneva Convention”. 7. Following this refusal of the applicant’s claim for refugee status she appealed to the Tribunal and it is that decision which is sought to be impugned in these proceedings. Decision of the Tribunal 9. The Tribunal reached its decision following the assessment of the evidence adduced at the appeal hearing, the applicant’s submissions and all other relevant documentation, including country of origin information. The Tribunal concluded on the basis of approximately nine grounds that the applicant’s story was not credible. It is the applicant’s contention that the Tribunal erred in law and acted unreasonably in failing to have regard to certain findings made by ORAC and that the Tribunal acted unreasonably or irrationally by failing to give any or any adequate reasons for its findings in respect of the applicant’s credibility. 10. There is a clear obligation on the protection decision maker to state reasons when rejecting the credibility of the applicant, unless the reason given for a finding is patent. I am not entitled to replace the Tribunal’s findings on the applicant’s credibility, rather I must simply review the legality of the credibility findings by reference to the standard set out by Henchy J. in the often quoted State (Keegan) v. The Stardust Victims Compensation Tribunal [1986] I.R. 642:
11. In undertaking this task, I am guided by a significant body of case law and in particular by the judgment of Cooke J. in I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 353, who distilled various principles from a large number of cases on the assessment of credibility and cases in relation to giving reasons for credibility findings. He said as follows:
(6) The reasons must relate to the substantive basis of the claim made and not to minor matters or to facts which are merely incidental in the account given.”
b) If so, were the reasons intelligible in the sense that the reader/addressee could understand why the finding was made? c) Were the reasons specific, cogent and substantial? d) Were they based on correct facts? e) Were they rational? 15. In reviewing the various reasons given by the Tribunal on credibility, I have applied the principles espoused in I.R. and in the pertinent case law (summarised in O (An Infant)) to the decision in this case. I find, on a comprehensive view, that the Tribunal has not acted irrationally or unreasonably in reaching its decision and has provided adequate reasons for its findings of a lack of credibility on the part of the applicant. It is clear that the overwhelming issue in this case was the lack of credibility and implausibility of the applicant’s story and in my view the Tribunal carried out its decision making function appropriately and provided proper reasons for its decisions in this regard. Tribunal Credibility Findings
“At hearing her hearing she said he [Obi] told her to go somewhere safe as the police were going to torture her. Thus taking his advice she went to Benin to escape her potential difficulties. She went believing she would be safe, otherwise why go there, and yet she remained in hiding in Benin. It seems pointless to do this in Benin when she could have saved herself the journey and remained in hiding in Lagos for 7 years instead. It seems to me that if she believed after 7 years in hiding that “everything was all gone” then the obvious place to get on with her life was in Benin. Instead she headed straight back to Lagos where her alleged difficulties occurred and to the very place where (if any of this is true and I do not accept it is having considered it all) there was a potential risk of detection. These are not the actions of an individual in fear.”
“The applicant claims that within a month of her return to Lagos, the police came to where she was living with a friend. She is not aware that they had ever looked for her there during the time she lived in Benin city. She has no idea how they knew of her or knew where she lived. She stated at Q36, page 10 of the interview notes that they mentioned her boyfriend and asked if she knew him. It does not appear credible that after seven and a half years that the police would suddenly know of her whereabouts or indeed be interested in her whereabouts. She herself could shed no light on how they would be aware of her after all that time. That they would suddenly show up after 7 years is just not credible.”
“…what the applicant does not know is more telling than what the police allegedly do know. The woman she stayed with on both occasions in Lagos is named Tina. This woman took her in when she was allegedly living under a bridge which in itself is highly implausible. She doesn’t know her surname as it’s a very long surname notwithstanding the fact that she turned up on her doorstep and lived with her for a second time in a seven year period. Her boyfriend is Obi, his surname is very long too so she just calls him Obi. She then stated Obi was his surname and his first name is very long. However, she still doesn’t mention what that name is. She never went to his house. She didn’t know his address. At hearing she said he lived with the man who trained him in his job. She didn’t know where the armed robbery took place as he didn’t tell her as she didn’t have time to start asking questions. She doesn’t know where he went after March 2000. She hasn’t seen him since. He did not know where she was so there was no contact since.”
“Thus, notwithstanding a less then five month relationship with a man whose name she does not know, whose address she does not know, who she has had no contact with for 7 years, about whose possible involvement in a robbery she is unsure and has no knowledge of where it occurred; when asked by police about this elusive pimpernel and if she knew him, she maintained he was (is) her boyfriend. When asked why she would think of him as her boyfriend when she hadn’t seen him in such a long time she said he went hiding and she was not aware of where he is and she still thinks of him as her boyfriend. (p11) This is just not credible. Not only that, it is illogical and internally inconsistent.” [sic]
“Having allegedly lived in hiding for 7 years to avoid potential difficulties arising from an incident about which she knows little or nothing she returns to Lagos and maintains to the police that this Obi individual is her boyfriend even though she hasn’t seen him since the alleged incident 7 years previously and when he clearly isn’t her boyfriend. These appear to me to be the actions of a person inviting rather than avoiding trouble. I do not accept this is credible and in my view she is tailoring her story to fit in with a reported event. (Amnesty International document: Nigeria Security Forces submitted on behalf of Applicant)” [sic]
“The only real specifics she furnishes are those contained in the report about a Titus Obi. She was unable or unwilling to furnish additional details which one would reasonably expect to be within her knowledge. This deliberate vagueness on the issue which was continued at her hearing is in my view an attempt by her to avoid answering questions on the incident (in which she was not involved or connected to) in the mistaken belief that such vague and frankly unbelievable responses cannot undermine her claim because she’s saying nothing much about it. However that it not correct and it does in fact lead one to the conclusion that this didn’t occur at all (to her).” [sic]
“A report was submitted on her behalf which is of no probative value in that it merely recounts what she says happened. Given that I do not accept any of this as credible it follows that I do not accept the events that allegedly flowed from this including the rape incident. Furthermore, she maintained that three men raped her in her questionnaire whereas in her report she apparently told her counsellor two men did. Even leaving aside this discrepancy in her report the entire claim is internally inconsistent, contradictory and in my view not capable of being believed.” 24. In my view, the Tribunal expresses a clear reason for its lack of credibility finding in this instance. The reason given is intelligible, specific and cogent. It is also logical and clear and it relates to a key part of the applicant’s story. It is clear that this finding is based on the correct facts and the reason given is a rational one. 25. Counsel for the applicant made submissions at hearing in respect of this matter by advancing what was described as an ‘island of fact’ argument. I take this argument to mean that the applicant’s account of the rape incident might stand alone as a so-called ‘island of fact’ and that a favourable finding by the Tribunal in this regard (in line with the ORAC finding on this point) might have given credence to other aspects of the applicant’s claim. While not being devoid of merit, such an approach is not applicable in this case. In my view the account of the rape incident should not be considered by the Tribunal in isolation from its interaction and correlation with her substantive story and should not be artificially dissected from the story as a whole. 26. In this connection, the applicant has argued that she was entitled to notice that the Tribunal might depart from the ORAC findings on the issue of rape. Reference is made to the decision of McGovern J. in N.N. v. Refugee Appeals Tribunal [2007] IEHC 230, as authority for the proposition that departure from ORAC findings by the Tribunal should not happen without notice. In addition, counsel referred to a decision of the Court of Appeal in England and Wales entitled Meredith & Another v. W.M.A. Merrick & Co. (A Firm) (Times Law Reports, 31st January, 1996) where the Court of Appeal was critical of an inferior court’s failure to make a positive finding one way or another on a central issue of fact. 27. It seems to me that these arguments are misconceived. In B.T. [Nigeria] v. Minister for Justice, Equality and Law Reform, et al [2011] IEHC 454, Cooke J. distinguished the decision of the learned McGovern J. in N.N. v. The Refugee Appeals Tribunal. In B.T. it was argued that the Tribunal had no jurisdiction to re-examine the question of credibility or, in the alternative, advance notice should have been given to the applicant if such was proposed. Cooke J. said as follows:
20. The full scope of that appeal and the latitude for the substitution of an appraisal which is the full opposite to that reached by the Commissioner in the report, is not in any sense restricted or impaired by the fact that the appeal’s starting point and the procedural framework for the appeal is the Commissioner’s report to which the Appeal Tribunal is required to have regard. Nor is it diminished or circumscribed by the change from an investigative forum to quasi-adversarial procedure in which the Commissioner is represented before the Tribunal in order, as it were, to stand over the report. The Commissioner acts as a type of legitimus contradictor who provides the adversarial element which permits the Tribunal to test and tease out the issues, but this in no way inhibits the Tribunal in reaching a conclusion that the Commissioner had made mistakes; that he had relied on wrong or inadequate evidence; that he has misunderstood the applicant, or in deciding in the light of entirely new evidence submitted by the applicant that conclusions which might have been tenable before the Commissioner should, on balance, no longer be allowed, and that a new view of the case should be taken.”
“Equally not credible is her assertion that a Mr James took her to his house and let her stay there and then brought her to Ireland. When asked at interview why he would do this she said she told him her story. At hearing she said he called a doctor and she was checked out and given some cream to use. Mr James brought her to England and then to Belfast and put her on a bus to Dublin. In that regard the following is relevant. As the Court indicated in MK V MJELR Mc Govern J 23rd January 2008. “one has to ask why would a person…travel all the way from Africa through at least two other countries to bring her to Ireland and provide the necessary documentation for her to come here and not accept any payment for this service. No explanation is given as to why he would have gone to all this trouble for nothing. In fact the evidence would suggest that it cost him money because he provided the tickets. On any objective basis, this account is simply not credible.” While the facts of this case and the circumstances under which she travelled are somewhat different the same principles apply.”[sic]
“Even if I am wrong and the claim is credible she had the option to internally relocate. She was in Benin before and nothing happened to her. I do not accept she was inside for 7 years but even if she was she decided herself to free herself from that isolation and went to Lagos when she could have remained in Benin where she had no difficulties.” 32. In my view, the reason for the credibility finding is intelligible, logical and clear. It is a substantial reason in as much as it relates to a key part of the applicant’s story. Finally, it is also clear that this finding is based on the correct facts and is rational. Conclusion |
