A (A) v Refugee Appeals Tribunal

JurisdictionIreland
JudgeMS. JUSTICE M. H. CLARK,
Judgment Date08 October 2009
Neutral Citation[2009] IEHC 445
CourtHigh Court
Date08 October 2009

[2009] IEHC 445

THE HIGH COURT

[No. 1288 J.R./2007]
A (A) v Refugee Appeals Tribunal (Andrews)
JUDICIAL REVIEW

BETWEEN

A.A.
APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (DAVID ANDREWS)
RESPONDENT

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

MEMESHI v REFUGEE APPEALS TRIBUNAL UNREP PEART 25.6.2003 2003/35/8424 2003 IEHC 65

CAMARA v MIN FOR JUSTICE UNREP KELLY 26.6.2000 2000/4/ 1247

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL & ORS UNREP PEART 9.7.2004 2005/15/3102 2004 IEHC 436

UNHCR HANDBOOK PAR 91

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

ILLEGAL IMMIGRANTS TARFFICKING ACT 2000 S5(2)

OKEKE v REFUGEE APPEALS TRIBUNAL UNREP PEART 17.2.2006 2006/46/9892 2006 IEHC 46

MUANZA v REFUGEE APPEALS TRIBUNAL UNREP BIRMINGHAM 8.2.2008 (EX TEMPORE)

K(I) v MIN FOR JUSTICEUNREP BIRMINGHAM 12.6.2008 2008/31/6769

IMMIGRATION

Asylum

Judicial review - Leave - Assessment of credibility - Flawed treatment of credibility - Duty of decision maker - Whether tribunal engaged in speculation or conjecture - Whether expression of opinion or rejection of parts of evidence conjecture - Treatment of notice of appeal - Failure to refer to previous tribunal decisions - Prejudice - Substantial grounds - Memeshi v Refugee Appeals Tribunal (Unrep, Peart J, 25/6/2003), Camara v Minister for Justice (Unrep, Kelly J, 26/6/2000), Da Silveira v Refugee Appeals Tribunal [2004] IEHC 436, (Unrep, Peart J, 9/7/2004), R v Home Secretary, Ex P Robinson [1998] QB 929, Muanza v Refugee Appeals Tribunal (Ex Temp, Birmingham J, 8/2/2008) and IK v Refugee Appeals Tribunal [2008] IEHC 173, (Unrep, Birmingham J, 12/6/2008) considered; Okeke v Refugee Appeals Tribunal [2006] IEHC 46, (Unrep, Peart J, 17/2/2006) approved - Refugee Act 1996 (No 17), ss 11 and 13 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(2) - Leave refused (2007/1288JR - Clark J - 8/10/2009) [2009] IEHC 445

A (A) v Refugee Appeals Tribunal

Leave for judicial review - Credibility assessment - Notice of appeal - Applicant asserting persecution on grounds of religion - Failure to mention threats in questionnaire - Inability to identify landmarks in region - Failure to seek state protection - Failure of respondent to make reference to previous decisions - Whether substantial grounds - Okeke v Minister for Justice [2006] IEHC 46 (Unrep, Peart J, 17/2/2006) applied; Memeshi v Refugee Appeals Tribunal [2003] IEHC 65 (Unrep, Peart J), Camara v Minister for Justice, Equality and Law Reform (Unrep, Kelly J, 26/6/2000), R v Secretary of State for Home Department, Ex Parte Robinson [1998] 1 QB 929, K (I) v Refugee Appeals Tribunal [2008] IEHC 173 (Unrep, Birmingham J, 12/06/2008) and Da Silveira v Refugee Appeals Tribunal [2004] IEHC 436 (Unrep, Peart J, 9/7/2004) considered - Illegal Immigrants (Trafficking) Act 2000 (No 29) s 5 - Leave refused (2007/1288JR - Clark J - 8/10/2009) [2009] IEHC 445

A (A) v Refugee Appeals Tribunal

Facts The applicant gave conflicting reasons for leaving Nigeria in his questionnaire and at his s11 interview. The 13 report highlighted serious credibility concerns among them, the applicant's claim that he was living in Maiduguri for six years but was unable to name the river or the roundabouts in the area. The Tribunal Member had credibility issues with the applicant's account of harassment by his father and his account of the death of his first wife. The applicant submitted that credibility findings made by the Tribunal Member were based largely on gut feeling, surmise, speculation and conjecture and were therefore invalid in the main. The applicant argued that the Tribunal Member made no actual findings but merely expressed opinions and that it is not clear what elements of the applicant's story were believed and which were disbelieved.

Held Clark J. in refusing leave to seek judicial review: that the Tribunal Member spelled out the parts of the applicant's evidence with which he had credibility problems, he took them chronologically and thus provided the context for his later findings. The Court held that no error has been established even at an arguable level which would meet the requirement of establishing a substantial ground for the purposes of obtaining leave on the challenge to this decision. The arguments related to the style of the decision and not to its substance.

Reporter: C. O'C

1

This is an application for leave to apply for judicial review of the decision of the Refugee Appeals Tribunal (RAT), dated the 11 th September, 2007, to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicant should not be granted a declaration of refugee status. The hearing took place at the King's Inns, Court No. 1, on the 14 th May, 2009. Mr. Paul O'Shea B.L. appeared for the applicant and Mr. Patrick O'Reilly B.L. appeared for the respondent. As the challenge is based on an asserted defective assessment of credibility, the detail of the applicant's evidence is relevant.

The Asylum Application
2

The applicant applied for asylum in the State on the 20 th March, 2006, at the office of the Refugee Applications Commissioner, claiming to fear persecution by reason of his religion. It is recorded on his ASY-1 form that he was born in 1966 in Oyo State, Nigeria; that he last lived in Maiduguri in Borno State; that he was a Christian pastor and a member of the Yoruba tribe; that he was married and had six children (four daughters and two sons) and that his wife and children remained in Nigeria; that "someone" helped him to travel to Ireland but no money was paid; and that he left Nigeria on the 19 th March, 2006 and flew to Ireland via Amsterdam. It was further recorded that at his preliminary s. 8 interview he said Muslims in his area attacked and burned his church. He had no passport and submitted two documents - a church poster and a church ID card.

The questionnaire
3

The applicant completed a questionnaire on the 24 th March, 2006. He said that from 2000 until he left Nigeria he had lived in Maiduguri at two different addresses. He was trained as a teacher and held a professional diploma in public administration. He worked as a teacher from 1987 to 1996 and then became a pastor first in Ibadan in Oyo State and eventually ending up as the pastor of the "Marvellous Light Church" in Maiduguri. He was a member of the Christian Association of Nigeria and the Pentecostal Fellowship of Nigeria.

4

His previous wife died in 1987 and the mother of his five younger children is named as the woman he married in February, 2002. He named his six children as a daughter born in 1987, two sons born in 1990 and 1992, and three more daughters born in 1995, 1998 and September, 2001. All of the children were said to be in Nigeria and his parents were living at a compound in Ogun State.

5

The applicant said he left Nigeria because of threats, intimidation and hostility at the hands of Muslims who wished to prevent Christians from having their services on Sundays. He described in detail the increasing tensions between Muslims and Christians which resulted in his church being attacked and set alight on the 18 th February 2006. He also detailed his very narrow escape and the loss of "thousands of souls". One of his deacons realised the threat from the approaching Muslims and ordered the applicant's wife to get into his car and took her and the children away to safety. The applicant said the authorities were already aware of the crisis and they tried to control the situation "as usual" but it was too late for the victims.

6

The day after the attack on his church the deacon told the applicant that the Muslims were still seeking him out and that some members of the families of the Christians who had died the previous day were looking for him. The deacon advised the applicant to go to Lagos with his friend for safety. At first the applicant believed that his family had become victims but was assured that nothing had happened to them and that they had just been driven away to safety. He then agreed to go with the deacon's friend to Lagos. He was admitted to hospital the following day as a result of the stress and shock and because of his pre existing anaemia. He was discharged on the 15 th March. The same friend then took him to a hotel where he met a white man called "Mr. Ian" who had been told about the applicant's plight and the danger he faced from the Muslims and the families of the church member who were victims. Mr Ian promised to take the applicant to a safe place and made the travel arrangements. The applicant had no passport and no visa to enter any country and says he never applied for an Irish visa. He said the documents that he used to enter Ireland were provided by Mr. Ian who showed everything to the authorities by himself. They travelled by air with a stopover in Amsterdam. When they got to Dublin Mr. Ian brought the applicant to ORAC and told him to go in and explain his plight.

The s. 11 interview
7

The applicant provided significantly different information at his interview. He said that he originally moved from Ibadan to Maiduguri because of problems with his father who, as a Muslim, disapproved of the applicant being a pastor. The applicant had himself changed religion when he was in secondary school. When asked why he did not mention the threats from his father in his questionnaire he said " The question is not in the questionnaire because he cannot come to that place when I moved."

8

The applicant confirmed the address of his church in Maiduguri in Borno State as 22, Bulumkutu. When asked why different addresses for the church were given on a poster and ID card that he had submitted to ORAC, he said the poster had the correct address but there was a mistake in the printing of the ID card. The applicant...

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