T (B) [Nigeria] v Min for Justice & Refugee Appeals Tribunal (Levey)

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 21 December 2011
• Neutral Citation: [2011] IEHC 484
• Court: High Court
• Date: 21 December 2011

[2011] IEHC 484

THE HIGH COURT

[No. 1372 J.R./2008]

T (B) [Nigeria] v Min for Justice & Refugee Appeals Tribunal (Levey)

[2011] IEHC 484

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

B. T. [Nigeria]

PLAINTIFF

AND

MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND MARGARET LEVEY SITTING AS THE REFUGEE APPEALS TRIBUNAL

DEFENDANT

R (I) v REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

REFUGEE ACT 1996 S13

N (N) v RAT UNREP MCGOVERN 28.6.2007 2007/43/9122 2007 IEHC 230

A (O) v RAT UNREP COOKE 25.6.2009 2009/2/323 2009 IEHC 296

A (TT)v REFUGEE APPLICATIONS COMMISSIONER UNREP COOKE 29.4.2009 2009/2/443 2009 IEHC 215

IMMIGRATION LAW

Asylum

Leave application - Fear of persecution - Lack of credibility - Inconsistent claim - Fair procedures - Whether tribunal member had jurisdiction to examine question of credibility - Whether breach of fair procedures - R(I) v Refugee Appeals Tribunal [2009] IEHC 353, (Unrep, Cooke J, 24/7/2009); N(N) v Refugee Appeals Tribunal [2007] IEHC 230, (Unrep, McGovern J, 28/6/2007); A(O) v Refugee Appeals Tribunal [2009] IEHC 296, (Unrep, Cooke J, 25/6/2009) and A(TT) v Refugee Applications Commissioner [2009] IEHC 215, (Unrep, Cooke J, 29/4/2009) considered - Application refused (2008/1372JR - Cooke J - 21/12/2011) [2011] IEHC 484

T(B) v Minister for Justice, Equality and Law Reform

Facts The applicant, a national of Nigeria, sought leave to challenge a decision of the respondents to refuse her application for asylum. The applicant had claimed that she had been subjected to serious harm and persecution in Nigeria. A number of findings were made by the Tribunal which rejected the applicant's claim on the grounds of the lack of credibility. The applicant contended that the Tribunal Member did not in fact have jurisdiction to examine the question of credibility at all or had, in the alternative, breached the principle of fair procedures. It was contended that the applicant's credibility had been fully accepted in the section 13 report and thus if the Tribunal was to examine this aspect, advance notice should have been given.

Held by Cooke J. in refusing the application. Tribunal decision was based squarely on the Tribunal member's appraisal of the lack of credibility of the applicant and the implausibility of the facts relied upon in her claim. Assessments of credibility were the exclusive function of the decision makers in the asylum process. It was questionable that the s. 13 report should be construed as accepting the applicant's credibility as questions regarding a lack of credibility were mentioned. The findings made in the Tribunal decision were clearly open to the Tribunal member. The attempts made to dissect and analyse the specific instances of implausibility identified by the Tribunal member did not give rise to any substantial ground for questioning the overall assessment made in the decision.

Reporter: R.F.

1 JUDGMENT of Mr. Justice Cooke delivered the 21st day of December 2011

2 1. The applicant is 31 year old Nigerian woman who applies for leave to seek a judicial review of an appeal decision of the second named respondent dated 29 October 2008 which affirmed a negative recommendation made on her application for asylum by the Office of the Refugee Applications Commissioner in a Report dated 15 ^th November 2007.

3 2. She arrived in the State in 2007, with her three year old daughter who was included in the asylum application. The mother gave a somewhat complex account of a life characterised by sexual abuse, rape, beatings and of being forcibly detained. The immediate source of her claim to fear persecution and serious harm in Nigeria was a man called "Tolu" who she said was someone who used come as a customer to her mother's shop. She claims that at the age of 23 she was raped by this man; that she got pregnant; that he tried to force her to have an abortion; but she refused and her daughter was born. Notwithstanding her account of having been raped by Tolu there was continuing contact with him, although his conduct was erratic and violent. She claimed that when her mother opposed the abortion Tolu had her (the mother) arrested upon a false charge of assisting the applicant in running away with his child. The applicant nevertheless agreed to go with him to Port Harcourt and moved in with him in November 2004. She found that he was involved in a secret cult. She claimed that in March 2007, he again tried to rape her and was attacked by him with a knife. On another occasion she said he hit her while she was cooking and hot oil burned her on the arm. He is alleged to have threatened that when the child was three years old he would have the child circumcised. She claimed that she moved with her mother to Lagos, but that Tolu followed her there. A friend of her mother's suggested the move to Minna in Niger state. A family that were friendly with there said they would help her and arranged to get documents for her including tickets and American passports, which enabled them to travel with a woman called Ruth in October 2007, arriving in Dublin on the 26 ^th October.

4 3. An oral hearing took place before the Tribunal on the 7 ^th October, 2008, at which the applicant was represented by solicitor and counsel. In section 3 of the Tribunal decision, the account given by the applicant as the basis for the asylum claim is set out in some considerable detail over three pages and includes comments on some of her replies under cross examination at the oral hearing.

5 4. The operative part of the Tribunal decision is characterised by a lengthy, detailed and forthright analysis of the credibility of the applicant's account set out in section 6 of the decision over seven pages. A large number of specific facts and events in the applicant's story are singled out and explicitly discredited. The Tribunal member introduces this analysis with the general assertion: "I do not accept that there is a genuine fear in the mind of the applicant. The entire claim is internally inconsistent and makes little or no sense". This is then substantiated by specific criticisms including the following:-

6 (a) The Tribunal member cites the account of the rape, pregnancy and the threats and beatings by Tolu over the abortion. She then comments: "Firstly it is reasonable to state that rape victims tend not to contact the perpetrators of the crime whether they become pregnant or not. Mothers of rape victims tend not to advise their daughters to contact the perpetrator either. Men who rape women are generally not interested in whether their victims become pregnant or not…nor does it make sense that this victim would the voluntarily go with this individual or that he would be in the least bit interested in taking her for a pregnancy test".

7 (b) In relation to the account of Tolu having the mother arrested and their pleas with him to get her released the Tribunal member comments: "She gave different versions of this release and how it came about. In interview she said the police saw her when she went with this Tolu to the station to have her mother released. At the hearing she said she did not go to the police, but directly to him as the police would have arrested her if she had gone to them".

8 (c) In relation to the conduct of Tolu, his erratic behaviour and violence,...