O O (F) v Refugee Appeals Tribunal & Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 02 February 2012
• Neutral Citation: [2012] IEHC 46
• Court: High Court
• Date: 02 February 2012

[2012] IEHC 46

THE HIGH COURT

[No. 386 J.R./2008]

O (FO) [Nigeria] v Refugee Appeals Tribunal & Min for Justice

BETWEEN

F.O.O. (NIGERIA)

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

LEK v MATTHEWS 1926 25 LL LR 525

R v REFUGEE APPEAL TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

E (S B) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 25.2.2010 2010/17/4323 2010 IEHC 133

R v SECRETARY OF STATE FOR HOME DEPT EXPARTE ROBINSON 1998 QB 929 1997 4 AER 210 1997 1 WLR 1162

IMMIGRATION LAW

Asylum

Fear of persecution - Lack of state protection - Internal flight option - Credibility - Assessment of demeanour - Failure to give reasons - Whether substantial grounds - Whether tribunal member erred - Whether decision based on subjective reasons - Whether reasonably possible to travel to another part of Nigeria in safety - R(I) v Minister for Justice, Equality and Law Reform [2009] IEHC 353, (Unrep, HC, Cooke J, 24/7/2009) followed - Lek v Matthews (1926) 25 Lloyd's Rep 525; E(SB) v Refugee Appeals Tribunal [2010] IEHC 133, (Unrep, HC, Cooke J, 25/2/2010) and R v Home Secretary , ex p Robinson [1997] EWCA Civ 2089 considered - Refugee Act 1996 (No 17) - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 7 - Leave granted (2008/386JR - Hogan J - 2/2/2012) [2012] IEHC 46

O(FO) v Refugee Appeals Tribunal

Facts: The applicant was a Nigerian pastor, who had built his own church in Lagos and had claimed asylum in Ireland in 2007. He applied for leave to challenge the refusal of his asylum claim. He claimed to have suffered religious persecution. The respondent Tribunal had found the applicant to have lacked credibility, that he could have easily relocated and that he had frequently travelled between Nigeria and the UK, inconsistent with the existence of a well-founded fear. The applicant alleged that he still would have been the target of attacks.

Held by Hogan J. that the applicant had demonstrated substantial grounds for challenging the decision of the Tribunal and the Court would propose to grant leave to challenge the decision.

Reporter: E.F.

1 1. The applicant is a Nigerian pastor who has built his own church in Lagos. He arrived in the State in August, 2007 whereupon he claimed asylum. The Refugee Appeals Tribunal ultimately ruled against his application by decision dated the 21 ^st February, 2008. The applicant now applies for leave to apply for judicial review to quash that particular decision.

2 2. The essence of the applicant's case is that in his role as a Christian pastor he has spoken out openly against the operation of Sh'aria law in Nigeria. As a consequence he contended that he became the target of a militant Islamic group called "Ahaddinjay". He contended this group accused him of being responsible for the death of one of their members and that, as a resulted, he was targeted by members of that group.

3 3. Matters are said to have come to a head in February, 2007. The applicant's church was burnt down and the following day his sister was murdered. He contends that he then advised the police of these developments and he in turn was advised to leave Lagos. He then went to a neighbouring state Oyo, where he stayed with his sister-in-law. He then left Nigeria to travel to Benin. He then subsequently returned to Nigeria but finally left Nigeria in August, 2007. He says that he took a ship from Port Harcourt to Morocco and from Morocco to Cork in September, 2007.

4 4. The applicant contends that he fears for his life if he returns to Nigeria, and that he will once again become a target for Islamic groups. He further contends that there is no effective state protection in Nigeria and it is on that basis that he claims that he has a well founded fear of persecution.

5 5. The Tribunal member did not think that the matters which the applicant complained amounted to persecution within the meaning of the Convention. It is also clear that the Tribunal member considered that the applicant's claim was wholly lacking in credibility:-

"The applicant in his demeanour presented as lacking in credibility and his evidence was simply, certainly as far as the Tribunal is concerned, quite unbelievable."

6 6. The Tribunal member also went on to say in the same vein that the applicant's:

"demeanour and credibility was unfocused and whilst he may be suffering from illnesses brought on by stress, the Tribunal will be of the view that he would be the author of his own misfortune."

7 7. The Tribunal member also found against the applicant on two other grounds. First, he stated the applicant "could easily have relocated". Second, the Tribunal member doubted whether the applicant could really be said to have well founded fear of persecution given that he had visited the United Kingdom almost ten times in two years before returning to Nigeria in each case. It was only subsequent to those trips that the applicant decided to come to Ireland and claim asylum.

The Tribunal's Credibility Assessment

8 8. The first thing to note about the Tribunal member's decision is that one cannot readily discern the reasons given for the conclusion reached. As we have seen, the Tribunal member expressed the view that the applicant's demeanour was "lacking in credibility" and that his evidence was "quite unbelievable." Passing over the fact that the description of a witnesses' demeanour as being "lacking in credibility" is itself an uncertain expression, the truth of the matter is that an assessment of demeanour in itself can rarely be a sure ground for dismissing the cogency of a witnesses' evidence by reason of that fact alone.

9 9. As Atkin L.J. so memorably observed in Lek v. Matthews (1926) 25 Lloyds Reports 525:-

"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."

10 10. This is perhaps especially true in the context of asylum claims, not least that allowance will often have to be made for translation difficulties and different cultural norms in terms of the assessment of the demeanour of any witness. As Cooke J. observed in IR v. Minister for Justice, Equality and Law Reform [2009] IEHC 353:-

"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...