Bisong v The Minister for Justice Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Leary
• Judgment Date: 25 April 2005
• Neutral Citation: [2005] IEHC 157
• Date: 25 April 2005
• Court: High Court
• Docket Number: [No. 911 JR/2004]

[2005] IEHC 157

THE HIGH COURT

[No. 911 JR/2004]

BISONG v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (GARVEY)

JUDICIAL REVIEW

BETWEEN

ASU CHARLES BISONG

APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

AND

BEN GARVEY, REFUGEE APPEALS TRIBUNAL

RESPONDENTS

Refugee Act 1996 (No 17) S11(A)(3)

Asylum

Judicial review - Failure to take into account relevant considerations - Evidence of independent witness - Country of origin information - Credibility of applicant -Circumstances in which it is appropriate for court to substitute different assessment of available evidence to that arrived at by Refugee Appeals Tribunal - Whether grounds, which on there own are not substantial, can betaken together to constitute substantial ground- Leave granted (2003/911JR - O'Leary J -25/4/05) [2005] IEHC 157 B (AC) v Minister for Justice, Equality and Law Reform

Asylum

Minor - Credibility - Fair procedures -Unaccompanied minor - Standard of proof forminor - Country of origin information - Bisong v Minister for Justice [2005] IEHC 157

Mr. Justice O'Leary

1 The applicant seeks leave to apply by way of Judicial Review for the following orders:

2 1. An order ofcertiorari quashing the decision of the second named respondent to reject the applicant's refugee appeal which said decision was issued on the 20th November, 2003.

3 2. A Declaration by way of application for Judicial Review that the decision of the second named respondent wasultra vires, void and of no force or effect.

4 3. If necessary, an Interim Injunction by way of application for Judicial Review restraining the first named respondent, his servants or agents, from acting on foot of the decision of the second named respondent to reject the applicant's refugee appeal.

5 4. If necessary, a stay on the operation of any deportation order pending the determination of these proceedings.

6 5. If necessary, an order extending the time to take the within proceedings.

7 6. Such further or other order as this Honourable Court shall deem meet.

8 7. An order providing for the Costs of these proceedings.

9 The reliefs are sought on the following grounds.

10 1. The second named respondent failed to take into account relevant considerations.

11 a) The second named respondent failed to consider the oral evidence provided by an independent witness, Mr. Gabriel Nkwelle, at the hearing of the appeal. Mr. Nkwelle gave evidence that he was working for the Southern Cameroons National Council (SCNC) in England and that he had known the applicant to be a member of this group in Cameroon. He also provided evidence that known members of this group were often arrested and detained without trial for weeks or even months. He himself had been granted refugee status in then UK on this basis and produced a certified copy of a letter from UK Home Office granting him indefinite leave to remain in the UK as a refugee.

12 In his summary of the evidence provided in the Refugee Appeals Tribunal decision dated the 12th November, 2003, the second named respondent merely states that Mr. Nkwelle was called on behalf of the applicant and that "This man said that he was technical advisor to the SCNC in the UK and was a human rights activist in who last saw the applicant in 1995".

13 The second named respondent appears to lend no weight to, or even consider, the evidence provided by Mr. Nkwelle.

14 b) Mr. Nkwelle's submissions on the plight of SCNC members were very much support by the country of origin information provided by the applicant and this was pointed out to the second named respondent by the applicant's legal representative at the appeal hearing. However, the second named respondent appears to have failed to pay any consideration to the documentary record describing the political situation in Cameroon and the ill treatment of SCNC members. The second named respondent did not.

15 c) The applicant produced a membership card for the SCNC to the Refugee Applications Commissioner. At the hearing before the second named respondent Mr. Nkwelle confirmed that he knew the applicant to be a member of this group in Cameroon. The applicant also produced a medical report from an Irish doctor which confirmed that he had substantial scarring to various part of his body which the applicant alleged was caused by beatings he received while imprisoned in Cameroon. The second named respondent refers to none of the evidence in his decision.

16 In the circumstances, the second named respondent in this case failed to consider relevant considerations and/or failed to properly assess the documentary record in this case.

17 2. The second named respondent erred in law.

18 The second named respondent made no attempt to consider the applicant's credibility in the context of general human rights practices in Cameroon. The decision indicates that the second named respondent considered the applicant's credibility in complete isolation from the general picture as to human rights practices in Cameroon and thus erred in law. Had the second named respondent properly considered any of the country of origin information, it might have had an impact upon the assessment of the applicant's credibility.

19 The second named respondent made a patently unreasonable evaluation of the applicant's credibility.

20 The decision of the second named respondent in the applicant's refugee appeal, issued on 20th November, 2003, at page 6 refers to the applicant's general credibility being undermined by a number of adverse findings as to credibility.

21 The first adverse finding as to credibility is a purported inconsistency in the applicant's Section 11 interview where he stated that his brother has also been beaten by the authorities in Cameroon.

22 There was a misunderstanding in the interview as to when this occurred. The applicant was explaining why he feared return to Cameroon. He said that after his escape the authorities had searched his farm looking to recapture him and that his brother had been badly beaten up by the authorities. He was not claiming that these two events occurred at the same time and his was clarified by the applicant in his answer to Q58. The applicant stated in that answer that his brother was beaten before the applicant escaped from custody. The applicant also gave this evidence when questioned in the course of the appeal hearing. On this face of the applicant's credibility, the second named respondent's finding appears to be unreasonable. There is no inconsistency in the applicant's evidence.

23 The second adverse finding as to credibility is in relation to a letter from a member of a Traditional Council in Cameroon. This letter states that the applicant's house was raided by the authorities in June, 2002 and that the applicant was arrested in July, 2002. The letter is dated October, 2000. It was submitted at the appeal hearing that this inconsistency was merely a typographical error. The second named respondent ignores this straightforward explanation and instead makes an unreasonable finding as to the applicant's credibility.

24 The third adverse finding as to credibility relates to the number of years that the applicant claims that he was self-employed. The applicant stated in his Section 11 interview that he worked for someone else for seven years before starting his own business. In his questionnaire, he had stated that he started working in 1994 and that he was self employed from the year 2000. This is a minor inconsistency on a peripheral detail which was not put to the second named respondent in the course of the appeal hearing and it is unreasonable for the second named respondent to make an adverse finding as to credibility of the applicant on this basis.

25 The fourth adverse finding as to credibility relates to the applicant's claim that at one stage he was offered a government job on the basis that this would buy his silence. The applicant stated in his section 11 interview that this tactic of integration was sometimes used by the authorities in Cameroon but that he would not do things that way. The second named respondent finds in his decision that this is not credible. No explanation of why it is not credible is provided and the finding was not accompanied by relevant questioning of the applicant or of the...