K (I) v Min for Justice & Refugee Appeals Tribunal (Durado)

JurisdictionIreland
JudgeMr. Justice Birmingham
Judgment Date12 June 2008
Neutral Citation[2008] IEHC 173
CourtHigh Court
Date12 June 2008

[2008] IEHC 173

THE HIGH COURT

[993 JR/2006]
K (I) v Min for Justice & Refugee Appeals Tribunal (Durado)

BETWEEN

I. K.
APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND RICARDO DURADO SITTING AS THE REFUGEE APPEALS TRIBUNAL
RESPONDENTS

REFUGEE ACT 1996 S11B

IMOH & OKORO v REFUGEE APPEALS TRIBUNAL (BRENNAN) & MIN FOR JUSTICE UNREP CLARKE 24.6.2005 2005/31/6393 2005 IEHC 220

BANZUZI v REFUGEE APPEALS TRIBUNAL, MIN JUSTICE & ORS UNREP FEENEY 18.1.2007 2007 IEHC 2

G (T) v REFUGEE APPEALS TRIBUNAL, MIN JUSTICE & IRELAND UNREP BIRMINGHAM 7.10.2007 2007 IEHC 377

IMMIGRATION

Asylum

Judicial review - Application for leave - Assessment of credibility - Decision of RAT -- Nigerian national - Challenge to manner in which assessment of credibility approached - Whether decision irrational - Evaluation - Drawing of inferences - Application of common sense - Challenge to finding on authenticity of membership card - Whether necessary to refer to existence of alternative country of origin information - Whether substantial grounds for review - Imoh v Refugee Appeals Tribunal [2005] IEHC 220 (Unrep, Clarke J, 24/6/2005); Banzuzi v Minister for Justice [2007] IEHC 2 (Unrep, Feeney J, 18/1/2007) and G(T) v Refugee Appeals Tribunal [2007] IEHC 337 (Unrep, Birmingham J, 7/10/2007) considered - Leave granted on limited basis (2006/993JR - Birmingham J - 12/6/2008) [2008] IEHC 173

K(I) v Minister for Justice, Equality and Law Reform

Facts: The applicant lawyer from Nigeria sought to review a decision of the respondent Tribunal that had made particularly forthright adverse findings in respect of his credibility. Certain of the findings were alleged to constitute conjecture and speculation. An issue arose as to a finding in respect of identity cards and country of origin information. The veracity of the documents was central to credibility and various sources of information were at the disposal of the Tribunal.

Held by Birmingham J. (ex-tempore) that it was arguably appropriate that the Tribunal member should refer to the existence of two sources of information and indicate which was preferred. There were substantial grounds on the basis of this alone to warrant leave being granted on a limited basis.

Reporter: E.F.

1

Mr. Justice Birmingham on the 12th day of June 2008

2

The applicant in this case is a Nigerian national born on the 16 th June, 1965. He arrived in the State and proceeded to claim asylum. His application was unsuccessful at first instance before ORAC as result of which he appealed to the Refugee Appeals Tribunal. An oral hearing was held and a decision issued on the 25 th July, 2006, which dismissed the appeal and affirmed the recommendation of ORAC that he not be declared to be a refugee.

3

The applicant now seeks leave to commence judicial review proceedings challenging that decision.

4

It is accepted by both sides that the question of the assessment of credibility was central to that decision and the challenge focuses on the manner in which the ORAC Member approached the issue.

5

The Tribunal Member was particularly forthright in stating the views that he had come to. So at various stages in his decision he described elements of the applicant's story as "implausible and wholly lacking in credibility" as "wholly lacking in credibility", "not credible" and "disingenuous and wholly lacking in credibility." Summarising his conclusions, he observed:-

"Taking the applicant's evidence in its totality I have found him to be hesitant, evasive, disingenuous and contradictory in his evidence as to its contents and presentation and I found his story to be implausible and wholly lacking in credibility."

6

He then went on to add:-

"I find the applicant's account most unconvincing in terms of credibility and substance."

7

In order to put the criticisms made in relation to the approach taken by the Tribunal Member to credibility findings in context, it is necessary to refer in outline to the case for asylum status that was being advanced.

8

It is the applicant's case that he is a qualified lawyer having practiced as such for some seventeen or eighteen years. He is of Igbo ethnicity and has been a member of MASSOB (Movement for the Actualisation of the Sovereign State of Biafra) and acted as legal advisor and zonal co-ordinator for that organisation. His role within MASSOB included visiting police stations and attending courts on behalf of MASSOB members. On an occasion in early 2003, he attended the central police station in Owerri, where some twenty five MASSOB members were being detained. It is suggested that the police released the detainees but arrested and detained the applicant. All told he says that he was detained for some two months and that during this period he was subjected to very severe ill treatment which involved his right leg being hoisted on an iron bar and being beaten with various implements including an iron bar, belt and baton as well as being kicked.

9

In December, 2005 the movement organised what was described as a "Stay at Home Protest". Around this period, on the 9 th December, 2005 the applicant had occasion to attend a court. While returning to his home from there he was informed by his wife that the authorities were at their home. Acting on his wife's advice he abandoned his car in Owerri and went to the home of his cousin which was some twenty five kilometres away. But, soon thereafter, as his cousin became apprehensive and asked him to leave, the applicant moved to another address where he stayed for some three or four weeks before moving to Lagos, where he stayed from mid January to late February, before leaving the country via Lagos airport. He indicates that he was accompanied by an individual described as"an agent" who supplied him with a false passport which this agent carried and presented to the various immigration authorities on his journey to Ireland. This journey brought him through the Netherlands and then to Ireland. He states that on the journey he was able to pass successfully through the immigration procedures at each stage.

10

The Tribunal Member's decision was a careful and comprehensive one and involves the recitation of much of what was said by the applicant at the hearing, how the applicant responded to questions that were posed and issues that were raised with him. Having done this the Tribunal Member then comments that the evidence raised several credibility issues and he proceeded to list those in nine numbered paragraphs. In addition to these numbered paragraphs the Tribunal Member states that he had regard to s, 11(B) of the Refugee Act 1996, (as amended).

11

It is probably convenient if I set out the paragraphs and refer in the briefest outline to the issues that have been canvassed.

12

Paragraph 1. "If the Applicant was allegedly arrested in January/February 2003 and released for the reasons given by him, it is not credible the police would have released him in his alleged condition without affording him medical treatment "to avoid a scandal.""

13

Comment. This finding is criticised as surmise and conjecture and amounting to decision making by gut feeling. At this stage there are a very great number of decisions of this Court reviewing how decision makers in the asylum process have approached the assessment of credibility. So much so that there is little disagreement at this stage about the legal principles involved, though there can be intense disagreement as to how...

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