Imafu -v- Minister for Justice Equality & Law Reform & Ors, [2005] IEHC 182 (2005)

Docket Number:2004 1162 JR
Party Name:Imafu, Minister for Justice Equality & Law Reform & Ors
Judge:Clarke J. / Peart J.
 
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JUDGMENT BY: Clarke J.

THE HIGH COURTRecord No. 2004 1162 JRBETWEEN MABEL IMAFUAPPLICANT and

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND ELIZABETH O'BRIEN, REFUGEE APPEALS TRIBUNALRESPONDENTSJUDGMENT of Mr. Justice Clarke delivered on the 27th May, 2005

The applicant is a female citizen of Nigeria, born in Benin City on 20th June, 1974. In these proceedings she seeks leave to issue an application for judicial review seeking primarily to quash a decision of the second named respondent in her capacity as a member of the Refugee Appeals Tribunal ("RAT") given on 29th November, 2004, in which the RAT determined that the applicant is not entitled to a declaration of refugee status.

This application is one to which s. 5 of the Illegal Immigrants (Trafficking) Act, 2000, applies and therefore, it is necessary for the applicant to establish substantial grounds for contending that the decision is invalid or ought to be quashed.

Background facts

In her grounding affidavit the applicant deposes to the fact that she arrived in Ireland in April of 2003 with her son and applied for asylum in this State. She then would appear to have gone through the refugee process by completing a questionnaire for the purposes of the Refugee Applications Commissioner ("RAC"), attending an interview at the offices of the RAC and, subsequent to a rejection of her application by the Commissioner, was the appellant in an application heard by the RAT on both the 12th and 19th of August, 2004.

One unusual feature of that process concerns a change in the case put forward by the applicant as the basis for her seeking refugee status. When dealing with the RAC the applicant had described religious difficulties in Nigeria which she claimed to have suffered and which she deposes were in fact similar to difficulties encountered by her half-sister. However, subsequent to the decision of the RAC and prior to the hearing before the RAT the applicant had a detailed consultation with her solicitors and informed them of having been trafficked into Italy where she states that she was beaten, threatened and forced to become a prostitute in Naples for the purposes of repaying a debt incurred in the sum of 6,000 Niara connected with her travel to Europe from Nigeria.

On foot of that consultation the applicant's solicitors wrote to the RAT to explain that the claims which would be made at the hearing before the RAT would be different to those made in both the questionnaire and interview completed before the RAC. It should be noted that in the course of its determination the RAT did not reach any adverse conclusions as a result of this alteration in the applicant's account. In the course of its conclusions the RAT noted that:"In coming to this conclusion I have purposefully set aside or excluded the evidence provided by the appellant prior to the hearing."The decision

Having reviewed the history of the application, the evidence given at the hearing, the submissions made and analysed the legal issues involved, the operative part of the determination of the RAT is to be found on pp. 11 and 12 thereof. I quote it in full:-"I have had the opportunity of observing the appellant on two separate occasions. On the first occasion the appellant launched into her story without any embarrassment or any reticence, despite her claim that she was ashamed to tell her story originally to a man. If the appellant was indeed ashamed to tell her story I would have expected her to be a little more reticent, however, she launched into a very fluid account of what had happened to her in her earlier days as a child, and how she had arrived in Italy before I decided to stop the hearing owing to the fact that her child was causing a disturbance, and therefore making it difficult to concentrate fully on what the appellant was saying, and also potentially making it distracting for the appellant. I do note that the appellant did not appear to be distracted, however for the sake of procedure I decided to adjourn the hearing.

On the adjourned date the appellant continued to tell her story. Whenever the appellant was asked to provide details, or names, or answer questions which may have provided a difficulty for her, she hesitated and either avoided the question by giving alternative information in answer to a different question, or would state 'I will tell you' and pause. Whenever the appellant was asked what might have been considered a 'difficult' question which required her to give some more detail or explanations as to why she would have embarked on a particular course she would pause and repeat the words 'I will tell you' before answering the question. In every other respect the appellant appeared to have no difficulty telling her story.

It is significant that para. 197 of the UNHCR Handbook specifically accepts that the burden of proof lies on the person submitting a claim. While the standard of proof is that of a reasonable degree of likelihood of persecution in order for me to conclude that there is such a reasonable degree of likelihood of persecution for a Convention reason, I must first be happy with the appellant's evidence. While I appreciate that it is not always possible to substantiate all, or in some circumstances, indeed any aspect of an asylum seekers claim, the evidence provided must nonetheless be coherent and plausible. In circumstances where it is difficult to verify the appellant's claim, the Tribunal may be entitled to give the appellant the benefit of the doubt, however, this may only arise in cases where the appellant has made every effort to substantiate her story and is found to be credible. I consider that in this case, in order to conclude that the appellant suffers from a well founded fear of persecution for a Convention reason, I would first have to apply the benefit of the doubt, however, I do not feel in this case that the appellant has made every effort to substantiate her story nor do I consider the appellant to have been truthful in providing her account. In coming to this conclusion I have purposely set aside or excluded the evidence provided by the appellant prior to the hearing. Even having done this I am still unable to conclude that the appellant's account is credible and in the circumstances cannot give her the benefit of the doubt.

As noted in the UNHCR Handbook a finding of credibility is indispensable where the case is not sufficiently clear from the facts on record, in this case I am unable to conclude that the appellant is credible, I believe this conclusion is amply supported by the facts and considerations outlined above."The Challenge

In legal terms the applicant mounts her challenge to that decision under a number of headings:-

(a) an allegation of failure to take into account relevant considerations;

(b) errors in law; and

(c) unreasonableness.

However, in each case the contentions focus on a number of what are claimed to be unsatisfactory elements of the determination.

As is clear from the operative part of the determination referred to above the sole basis upon which the applicant's case fell was a finding of lack of credibility. The applicant contends that that finding is legally flawed for a number of reasons which may be briefly stated as follows:-

(a) It is stated that the basis for the finding of lack of credibility does not stand up ("pure credibility issue");

(b) It is stated that the Tribunal failed to consider the applicant's credibility in the context of relevant country of origin information ("context issue"), and

(c) It is stated that no basis is set forth in the determination for the finding by the Tribunal to the effect that it did not "feel in this case that the applicant has made every effort to substantiate her case" ("substantiation issue").

I will deal with each in turn.

Pure Credibility Issue

While there is not, as yet, a definitive ruling of this court (let alone the Supreme Court) as to the extent to which it is appropriate for this court to review the reasoning of a Tribunal such as the RAT with particular regard to its findings in relation to the credibility of an applicant, there are a number of decisions of this court at the leave stage from which it may be gleaned that the following propositions have been considered by the court to be at least arguable to a sufficient extent to justify a finding of substantial grounds.

(i) The assessment by the RAT of the credibility of an appellant and his/her story forms part of the decision making power conferred by the Refugee Act, 1996 and therefore, in accordance with the principles set out in East Donegal Cooperative Limited v. The Attorney General [1970] I.R. 317 such assessment must also be carried out in accordance with the principles of constitutional justice: Traore v. The Refugee Appeals Tribunal and Anor. (Unreported, Finlay Geoghegan J., 14th May, 2004).

(ii) Where the assessment of the credibility of an appellant places reliance upon a significant error of fact in a manner adverse to the applicant such error renders the decision invalid; Traore.

(iii) While the assessment of credibility is a difficult and unenviable task it is not permissible to place reliance "on what one firmly believes is a correct instinct or gut feeling that the truth is not being told". Such a process 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. Da Silveria v. The Refugee Appeals Tribunal and Others (Unreported, High Court, 9th July, 2004, Peart J.)(iv) A specific adverse finding as to the appellant's credibility must be based upon reasons which bear a legitimate nexus to the adverse finding. Kramarenko v. Refugee Appeals Tribunal and Anor. (Unreported, High Court, 2nd April 2004, Finlay Geoghegan J.) placing reliance on the decision of the United States Court of Appeals for the Ninth Circuit in Aguilera-Cota v. INS 914 F. 2d 1375, (9th Cir. 1990).

(v) A finding...

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