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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> S. (R.K.) v. Refugee Appeals Tribunal & Ors [2004] IEHC 436 (9 July 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/436.html Cite as: [2004] IEHC 436 |
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Neutral Citation Number: [2004] IEHC 436
Record No: 2003 No. 879JR
BETWEEN:
APPLICANT
RESPONDENTS
Judgment of Mr Justice Michael Peart delivered the 9th day of July 2004:
This is an application for leave to seek judicial review for the reliefs set forth in the Statement of Grounds dated 26th November 2003 on the Grounds therein set forth. These reliefs include a Declaration that the RAT decision to deny refugee status, and the Recommendation of the Tribunal Member, are ultra vires and without efficacy; an Order of Mandamus directing that her claim for refugee status be remitted for hearing by the RAT; an Order of Certiorari quashing the said Decision and Recommendation; and an Injunction restraining the Minister for Justice, Equality and Law Reform ("the Minister") from taking any steps to affirm the said Decision denying refugee status, and/or from making a proposal to deport and/or to deport the Applicant.
The grounds upon which relief is sought can be summarised as follows:
A. The RAT Decision does not accurately reflect the conduct and content of the hearing, and that the Tribunal Member has acted in breach of the applicant's right to fair procedures and natural and constitutional justice;
B. The Decision contains material errors of fact in relation to a matter relied upon by the Member regarding the applicant's credibility;
C. By reason of factual errors, the Member has failed to take account of directly relevant evidence and material; and has omitted to consider the rape attack the applicant in his assessment and adjudication and consideration of whether the applicant has a well-founded fear of persecution;
D. The Member has erred in law and in contravention of relevant UNHCR Guidelines for the adjudication and consideration of appeals for female asylum applicants;
E. The Member has acted in breach of the applicant's right to fair procedures in the manner in which he has assessed the applicant's credibility;
F. The Member has erred in law and acted ultra vires by engaging in and relying upon personal conjecture in reaching negative conclusions regarding her credibility;
G. That the Member erred in law and acted ultra vires s.2 and Art. 1(A)(2) of the Refugee Act, 1996 in the assessment of the applicant's credibility in omitting to consider and assess whether the applicant had a well-founded fear of persecution for a Convention reason, and whether there was a real chance or possibility of persecution if the applicant was refouled to Togo;
H. The Member erred in the manner in which he has assessed the objective element of the applicant's fear of persecution;
I. That the Member failed to properly consider and give weight to all elements of the applicant's account of events when assessing credibility and failed to consider the real possibility or chance of persecution should she be refouled;
J. The Decision and Recommendation are unreasonable, irrational and fly in the face of commonsense and the weight and preponderance of material and information and evidence;
K. The Member has failed to consider and/or properly and adequately consider and/or give any weight to relevant information and material before him;
L. The Member failed to have due regard to the subjective fear of persecution and the past persecution suffered by the applicant;
M. The Member erred in relation to the standard of proof which he applied;
N. The Member failed, when considering the appeal, to have regard to the principles and rights under the Refugee Convention of 1951, to which effect was given here by the Refugee Act, 1996, and that the appeal should have been considered in the light of relevant human rights Conventions and Instruments as set forth in the statement of Grounds.
Background Facts:
The applicant in her Grounding affidavit has stated that she is a national of Togo, and that she arrived in this State on the 14thh November 2002, whereupon she applied for refugee status on the following day by completing the usual ASY1 Form. On the same date she completed the Questionnaire in which the following facts, amongst others, are revealed:
2. She was married on 4th October 2000 according to an ethnic rite and civil ceremony, but not according to any religious rite;
3. Her husband is also Togolese, and still resides in Lome, Togo, as do her two children (born 1988 and 1990 respectively) who live there with her mother;
4. She has two sisters who both live in Lome, Togo;
5. The reason given for not having her passport is that she had "no intention of travelling and of leaving my husband and my two children behind in the country."
6. She has a fear of persecution in both Togo and in Ghana on grounds of "political opinion" only (Q.24);
7. The reason she fears persecution is explained at Q. 26 as:
"Because all of the Togolese men and women are tired of the dictatorship that reigns in our country; everybody gets arrested and tortured; the people are extremely fatigued. I am here thanks to god.
On the 28th of September, I was arrested and battered until I lost consciousness. When I came to, I found myself in the Lome Gendarmerie camp. I did a month. We ate once a day, and the food was served in the hands; if you dropped it, that was it."
8. In Q. 27 she stated that she fears persecution at the hands of the RPT who, she says, want to eliminate all other political parties in the country, and that she is a "UFC sympathiser and singer". The reference to being a singer is in the context that she sings at political rallies. She fears death because her father died when she was two years old, and £he died for Togo". She says that when she was arrested she was brought to the Lome Gendarmerie Camp, and was battered and fell unconscious; that life in prison was hell; that there were many women in the room where she was kept; that every morning the police came and took some people away and that they never heard from them again, and that some are dead; that after 4 weeks in prison she became ill, and that the police upon being called to her said that she would have to be brought to the infirmary; she was given medication there and was told to get some rest; that on the same night she took a nurse's uniform, put it on together with a pair of shoes, a pair of trousers with a badge and she left. She says that when she got home she could not see her children and her husband, and went directly to a girlfriend's house and told her what had happened. She was told to stay in the room, and apparently a few hours later this friend said "we are leaving for Ghana, I have an uncle there." They left on the same night.
10. She did not report her fears to the authorities because she regards the authorities as "all the same", and she would not put her life at risk again.
11. She was at the time a member of the UFC Party (Union des Forces du Changement)
12. As far as her activities as part of the UFC Party are concerned, she said that she is a "sympathiser and a singer in the group." And that on the occasion when she was arrested she was singing and dancing at the demonstration.
13. In answer to whether she had been mistreated by the authorities, she stated at Q.31 that she had been mistreated "on the 28th September because of the meeting of my party."
14. At Q.32 in answer to whether she had ever been arrested, detained, interrogated or imprisoned in her own country, she stated that she had been, namely on 28th September in Lome, and she says "I was arrested along with all the UFC sympathisers and the General Secretary; that is where things became serious, with slaps and the use of batons."
15. at Q.39 she explained what she feared would happen if she returned to her country, in the following way:
"If you return me to my country I will die. I am a retailer on the Greta Market. The people want the RPT people and the president of the Republic to leave, because we are all tired of dictatorship. On the 28th September, we held a demonstration in Freau Jardin in Lome; the sympathisers were there; everybody was there; we started our usual songs; we were dancing; there was a large number of people, even children; the police and gendarmes were also there; at about 3pm Mr Jean Pierre Fabre, the General Secretary, arrived at the location; the police approached Mr Jean Pierre Fabre straightaway, and asked him to follow them; everybody wanted to react, but the General Secretary asked us to remain calm; they left with the General Secretary. We could not stay without doing anything; we sang and danced; we screamed; the police threw some tear-gas and started battering us. Many were arrested; there were many of us in Lome Gendarmerie, and we were led to a small, dark, bare room. I was beaten up that evening; I could not breathe well. We ate once a day, and we were given food in our bare hands – if you dropped it, that was it for you. I spent one month in prison, and thanks to god, I am now here."
16. Regarding travel arrangements she states at Q.43 that she came here with the uncle of her girl friend, and at Q.44 that because she was not safe in Ghana her girl friend brought her to her uncle, and he went to fetch somebody who accompanied her on her trip. She states that she left Ghana on 13th November, and that they had a stop-over but cannot remember where. She says that they spent a few minutes in each country and left for Dublin.
17. In answer to Q.50 where she is asked whether there is any other information not already covered in the questionnaire which she considers relevant to her claim, she states:
"I do not know whether my children and my husband are still in Lome. I have had no news from them. Every night my children wanted their mother, and since 28th September, I have not had any news from them. I pray to God to protect them, wherever it is that they are now. I am telling nothing but the truth, you can ask other people about the 28th September. The name of somebody who is missing, Pierre Anoumou stays in my mind."
Following the completion of this Questionnaire, an interview was held on 30th April 2003. During the interview she was asked a large number of questions as is normal, and while it is not necessary for me to detail everything that was said, I will summarise the relevant information which was given during this interview.
She was asked about her membership of the political party, the UFC and whether she was a member or a sympathiser. She said that she was "a sympathiser and singer". She said that she had a membership card for the party but that it was taken from her. In relation to being a singer, she stated that when a meeting was organised they sing and dance in front of those attending the rally. In relation to travel arrangements she said that her friend's uncle organised the trip, and that she did not have a passport but that the man she travelled with supplied a passport which he showed to the authorities. She never had the passport personally. She had an identity card at one time but it had expired and she did not bring it with her. In relation to the meeting on the 28th September already referred to she explained that there were about 500-700 people at the meeting which took place at about 3pm, and it was solely for members of the UFC Party. She was asked who addressed the meeting. In answer she stated "Before the meeting people were singing and dancing. Jean Pierre Fabre Secretary General of the UFC was arrested by the police before he addressed the meeting. She was asked whether there were any speeches later, and she said "No – the gendarmerie began to beat us". She stated that when this happened she was in the front line facing the public, and that when the leader came he did not have a chance to speak to them, and that he was taken away by the police. She was asked who else was standing in the front line with her and she said that a party member, Madame Lawson was. Those in the front line were singers whose function was to encourage the crowd.
She said that when the leader was arrested they all started singing calling God, and that when the gendarmerie saw them, they used gas, and that she fell and became unconscious. She was asked about her reply to Q. 26 when she said she was beaten. She responded that she was beaten when they used their baton, and the next thing she was aware of was that she was in prison along with many others – about 60 in number. The room in which they were kept was very small and that only women were in that room.
She was asked what happened to her in prison. Her reply is noted as follows:
"It was the first time I was arrested and tortured. The room I was in was dark and you had to use a bucket to go to the toilet. The food was very poor. It was given to us in our hands. At that time I didn't know that I was pregnant. [Given that her child was born on 19 April 2003, and assuming it was a full-term birth, the applicant would have been about 10 weeks pregnant at the time of her arrest on 28th September, and 14 weeks pregnant when she left the prison on 30th October]. Every morning the gendarme came to the rook and took about 5 people. No one knew what happened to them. On the 4th week I was in prison. I got ill and the gendarme came and asked what was happening. I was lying on the floor and they asked me to stand up. I could not. They asked me to hurry up. I felt very weak. I said I could not. One of the police decided they could not keep me there and they brought me to the hospital. This hospital was in the prison and she says that she was given an injection and some medicine and was told to sleep, and then they left. She then states that at about 7pm that night there was no one there, and she thought that if she stayed she would be killed as she was a member of the UFC. She says that she wore a nurse's uniform with a badge, and "took a plate", she got outside the building and managed to escape. She also stated that when she was in the hospital she was in a room with only one bed in it, and that there was no one else being treated in the room at the time. She was asked if there were any hospital staff there and she said "It is not like a hospital, just rooms and if you become ill they bring you there to treat you."
She was asked how she managed to get the nurse's uniform, and she said that it was hanging on the door. She also said that as far as security was concerned, when she opened the door there were no soldiers and she said to herself that she would take the opportunity and get out. She was asked whether she encountered any soldiers when she was escaping, and she said that there was a soldier beside the door but because she was wearing a nurse's uniform he did not say anything. She said that she left the prison on the 30th October 2002.
She said that she did not report to the police about her arrest because they were responsible for her arrest.
She explained that her position in the UFC was that she distributed leaflets if there was a march or demonstration to take place. She said the aims of the UFC were to change the regime, and that was all.
She said that after she escaped she went to her house to check if her husband and children were still there but she could not find anyone and then she went to her friend. This reference to her "husband" was to her second husband. She was asked then how it could be that her children came to be with her first husband (which is what she stated earlier in the interview as noted at page 6 thereof), and she replied:
"When I leave my children generally go to my mother. When I returned to the house and there was no one there I went to my friend. I told her everything and she said "you cannot stay here". She said "let's go to Ghana" and we left that day. When we arrived there she explained the situation to her uncle and he said "don't be afraid". He said "you cannot stay here" and he said he would find someone to help me. On 13th November I left Ghana with the man who brought me here."
She was asked how she found out that her children were with her first husband, and she replied that her friend visits her mother from time to time. When asked how her friend told her, she said that she rang her friend and she told her.
She was asked towards the end of the interview to explain why she feared returning to Togo, and she replied that if she returned she would be killed, and when asked why she thought that, she explained as follows:
"My father was killed when I was 2 and my mother told me he was killed because of his involvement in politics."
She did not know what party he was involved with – but she said he was in the military and that was all she knew. She was asked why she sought asylum, and she said that she did so in order to protect her, and that she would rather die here than be killed in Togo.
Finally, she was asked whether there was anything else she wanted to add. She replied: "I was raped by a soldier." When asked if she wanted to say anything else about that, she said she did not. She was then asked if she was satisfied with all the details given, and she confirmed that she was.
At paragraph 4 of her grounding affidavit she avers that her fear of persecution arises because of her political opinion and by reason of her status "as a member of the particular social group comprising women subjected to rape and torture."
The applicant was notified by letter dated 29th July 2003 of the decision to refuse her application for refugee status, and she was furnished with a copy of the reports in respect of the investigation, as well as the recommendation in respect of her application. In the Report pursuant to s.13(1) of the Refugee Act, 1996 (as amended), and which is dated 13th June 2003, the facts as outlined by the applicant in her application and interview are outlined. It is clear from this report and recommendation that the reason that she was considered not to have established a well-founded fear of persecution was that the Commissioner was of the view that she lacked credibility. Under the heading "Credibility", he states as follows:
The meeting of the UFC Party in which the applicant participated is referred to in the Country of Origin information documented above. The Country of Origin states that on the day in question that (sic) the leader of the UFC Party was arrested but released after a few hours. (tab 2) This brings into question the applicant's account of what happened to her. It is thought to be unlikely that if the leader of the UFC Party was let go after the meeting that the applicant an ordinary supporter of the Party would find herself in Prison. The ease with which the applicant escaped from Prison without being detected and the fact that she stated that there was no one in the sick bay area of the hospital further undermines her credibility. In summary it is considered that the applicant has given a very sketchy account of what has happened to her and therefore has not established a well-founded fear of persecution. It is reasonable to conclude that the applicant could return to Togo without her life being endangered.
In her affidavit she refers to a country of origin report from US State Department on Human Rights practices in Togo in 2002, extracts from which are referred to in the report and recommendation of the authorised officer of the Office of the Refugee Appeals Tribunal. This information, she says, confirms that the government in Togo engages in oppression and denial of political freedom to opposition parties, and that the government's human rights record is poor, and that it engages in human rights abuses and that there is a denial of democracy. She also refers to the fact that these reports confirm that political rallies have been dispersed forcibly and that protesters are jailed, and that civilians are beaten, arrested and detained and that lengthy pre-trial Department confirm detention is common. She also avers that these reports from the US State that detainees have been tortured, denied food and medical attention and that prison conditions are very harsh, with poor sanitation, overcrowding and unhealthy food. She also refers to the fact that this country information confirms her account about the forcible break-up of the rally on the 28th September 2002 with the use of tear gas and batons.
She lodged an appeal against the decision of the Refugee Appeals Commissioner to refuse her application for refugee status on the 24th July 2003. Firstly, she submitted in her appeal that the Commissioner was wrong when she concluded that "in relation to the applicant's claim that she was arrested and imprisoned on September 28, the fact that the General secretary of UFC was detained for just a few hours makes the applicant's claim of imprisonment for one month less likely". The applicant submitted that this was a matter of pure speculation on the part of the Commissioner, and that no evidence had been produced to contradict the applicant's own clear testimony. It was also submitted that if the Commissioner had doubts about the applicant's credibility, the applicant was entitled to have those doubts put to her so that she could address them, and that in the absence of so doing, the Commissioner was not entitled to draw negative credibility inferences on the basis of those doubts. It was also submitted that the Commissioner was not entitled to refuse to accept the applicant's account simply because she did not believe that the events could have happened in the way described. The applicant referred the RAT to the Court of Appeal decision in Karanakaran v. The Secretary of State for the Home Department [2000] 3 All ER 449, wherein it is stated by Brooke LJ at pp 469-470:
"…when considering whether there is a serious possibility of persecution…it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur."
It was submitted that in view of what is stated by Brooke LJ the Commissioner was not entitled to regard this particular part of the applicant's evidence as implausible.
Secondly, it was submitted that the Commissioner erred in he report when she stated:
"The ease with which the applicant escaped from Prison without being detected and the fact that she stated that there was no-one in the sick-bay area of the hospital when she escaped further undermines her credibility."
It is submitted that this finding again offends what was said, as set out above, by Brooke LJ in Karanakaran, and it was also submitted that if the Commissioner had the doubts she describes about the applicant's credibility, she ought to have made those doubts known to the applicant in order to enable the applicant to comment in relation to them, and that constitutional justice requires that these doubts be expressed to the applicant
Thirdly, it was submitted that since what was stated in the report in the two above quotations are the only two bases upon which a finding was made that the applicant did not have a well-founded fear of persecution, it follows that there was neither the legal or factual basis for so concluding, and that the recommendation of the Commissioner ought not to be affirmed.
By way of general submissions, the Notice of Appeal contained a number of points:
2. That in order to succeed the applicant had to show that she holds a clearly defined political opinion; that she was persecuted by virtue of this political opinion at the hands of the government of Togo, and that if she were to return to Togo she would continue to be persecuted.
3. That the applicant was a member and prominent activist in the UFC Party, which is dedicated to the restoration of democracy in Togo, and to the removal from office of the existing government; and that her function was to attend rallies and sing and dance in order to create enthusiasm and a sense of energy amongst those attending.
4. That the oral evidence would show that she had been beaten by the police at the meeting on the 28th September, and inhaled gas, causing her to lose consciousness; that she was held with 60 other women in a jail and was kept for one month during which time she was subjected to physical and psychological harm; that each day four or five prisoners were taken away and were never seen again; that if she had not escaped she would eventually have suffered the same fate.
5. That this evidence shows that she has been persecuted for a Convention reason, 'persecution' being defined as "the systematic violation of basic human rights".
6. That the current government of Togo continues its attempts to eliminate the UFC and its members, and therefore if the applicant were to be returned to Togo she would be arrested because of her escape and would in all likelihood be forced to undergo the physical and mental hardship to which she had been previously subjected.
The Decision of the Refugee Appeals Tribunal member is contained in a document of 10 pages approximately in which he outlines the applicant's background and refers to the evidence of her involvement with the UFC Party. He summarizes the facts already outlined above and which is all contained in the Questionnaire and Interview. He refers to the fact that the Country of Origin information referred to is silent regarding any arrests having been made at the rally of the 28th September 2002, and states that "the significant part of the Applicant's account, where it departs from reported country information, is that she says that she was one of at least sixty people arrested or detained by the police and incarcerated for at least four weeks."
He says also that the applicant's account of the break up of the meeting is plausible and not inconsistent with the country information. He describes some of her evidence before the Tribunal as "equivocal" when she stated in her evidence that she lost consciousness either because she was beaten or because of the effects of tear gas, and that she had said that she was struck but "thinks the tear gas may have sent her into unconsciousness."
He refers to the meeting and says that it was clearly a political meeting whose purpose was to "drum up support for the party at the legislative elections", and was broken up for political reasons. He says that while the applicant stated that the soldiers were at the meeting to provide security for the meeting, it was clear from her evidence that it was intended by the authorities that the soldiers would act in a manner such as to contain the meeting either for purposes of public order or from a political perspective. He refers to the arrest of the Party General Secretary and to the fact that the applicant has stated that thereafter a number of people continued singing. He states that this evidence "is as plausible as it is implausible. It is necessarily not susceptible to proof." He says that there is no evidence from country of origin information that the police moved against the crowd at the meeting, and he goes on to state that "if party members were arrested en masse on this occasion as the applicant states it would likely have been reported."
He states that the US State Department Report of March 2003 makes no mention of the mass arrest of members of the UFC, and refers also to some information supplied by the Commissioner (from the Canadian Research Directorate Immigration and Refugee Board Ottawa) which quotes the executive vice president of the UFC as saying that he is not aware of a single incident in which a UFC party member has been subjected to ill treatment by the authorities, but that in the lead up to the October 2002 elections the police arrested a few members of his party and took them into custody for a few days before releasing them. It is worth quoting a relevant paragraph from this country of origin information, while at the same time acknowledging that Counsel for the applicant before this Court indicated that this statement conflicts with most of the other country of origin information relied upon:
"The UFC executive vice president indicated that he is not aware of a single incident in which a UFC party member has been subjected to ill-treatment by government authorities. However he did say that during the period leading up to the 27 October 2002 elections, the police arrested a few members of his party and took them into custody for a few days before finally releasing them. According to the UFC party leader, these militants were accused of being in possession of and distributing handouts that urged people not to take part in the 27 October 2002 elections."
I should perhaps refer to the fact that the same document explains why the UFC Party, which is opposed to the incumbent government, would want to urge people to boycott the election, since otherwise it may appear somewhat illogical, given the opportunity for change afforded by elections. It is stated:
"The Union of the Forces for Change (UFC) is the largest opposition party in Togo. It is legally incorporated and recognised by government authorities. However, given that there were no UFC candidates in the 27 October 2002 legislative elections - as a result of a unilateral change in the electoral code by the party in power - the UFC is not represented in the Togolese National Assembly."
Counsel for the applicant referred to the report of Amnesty International which issued after the June 2003 Presidential elections and to the reports contained therein of clashes between opposition supporters and security forces, arrests and the use of force to suppress demonstrations, as well as of the shooting of two prominent opposition activists during that election, and of other violent clashes in various areas of the country where crowds were dispersed by the use of tear gas and guns. But that report is confined almost entirely to what happened on the day of the election itself in June 2003, and it is only fair to mention that since Counsel has submitted that the report is relevant to the continuing fear of persecution of the applicant should she be returned to Togo. He also referred to the US State Department report of March 2003 in which reference is made to the fact that the Government's human rights record remained poor and that the citizens' right to change their government remained restricted, and that the government continued to violently disperse political rallies, seize independent newspapers and jail political opponents. It refers also to arbitrary arrest and lengthy pre-trial detention being common.
There is certainly a difference between what is stated in the Canadian report to which I have referred and what is contained in the US State Department report and the Amnesty report, even allowing for the latter dealing with the June 2003 Presidential election, rather than the October 2002 legislative elections. Mr Woolfson has submitted that the Tribunal Member could not simply choose which country of origin information he wished to prefer, if both were from reliable sources. He had rather to weigh up both and decide whether there was even a 10% chance that the applicant would be persecuted if returned to her country. He did not have to choose between the two. Counsel referred the Court to a judgment of Laws J. in R v. I.A.T. ex parte Demisa, unreported, 17th July 1996 in this regard.
However, the RAT member in his decision states the following in relation to what is stated in the Canadian report to which I have referred:
"The applicant's account contradicts this in every respect. The applicant's account of constant ill-treatment, torture and multiple rape by the soldiers in prison is regarded by the Tribunal as lacking in credibility. The applicant has produced no medical reports or other documentation to corroborate her account of abuse or violations of her human rights."
In relation to the applicant's evidence that she was raped while in prison, her time generally in prison, and her attempt to find her husband and children following her escape, the Tribunal member states as follows:
"The applicant states alternatively in her Interview and in her evidence to the Tribunal that she was held in custody in a fetid cell with sixty other inmates for a month and that she was taken out of her cell and raped after a week. The applicant refers to her experiences of rape in her Interview at page 18. If the applicant was raped as she described it is salient that she told nobody about this other than an anonymous cell mate. She did not go to her husband or attempt to seek him on her release or attempt to get help from him or through him. She states that he was present in the house when she returned after escaping from prison. Her apparent lack of concern for him or her family tends to undermine the integrity and credibility of her story and tends to negate a well-founded fear of persecution."
Counsel for the applicant has stated that this summation is factually incorrect. For example she in fact stated that she went to seek out her husband and children but that when she got to the house they were not there, and that the Member has therefore come to an adverse crediblity finding, regarding the rape allegation and her lack of concern for her family, as a result of inferences drawn from incorrect facts, and that the lack of credibility finding in relation to the rape is relevant to the finding that the applicant did not have a subjective fear based on past experiences. I should add that Counsel for the Respondent, Ms. Stack has accepted that in this respect the Member is factually incorrect in what he has stated in his Decision, but submits that the wrong facts are insufficient to disturb the Decision in any fundamental way.
In relation to the applicant's account of her escape from the prison hospital, the Member states in his Decision:
"The details of the Applicant's escape from the prison hospital defy credibility. Having been through a month's incarceration, beatings and rape, the Applicant asks the Tribunal to believe that she was simply able to don a nurse's uniform and walk out of the main gates of the prison unopposed. Such a story may be believable in respect of casual departures from custody in Dublin, as urged by Mr Fitzpatrick, but the Tribunal is not persuaded of its veracity in the circumstances of Togo where according to country of origin information prison conditions are very harsh and prolonged pre-trial detention is common."
In relation to the applicant's role in the UFC Party he states:
"The applicant was at best a fringe supporter of the UFC and not a significant player or somebody of especial interest to the authorities. In circumstances where the leading figure in her party was released after a few days detention it is not credible or plausible that the applicant would be held and beaten by the authorities for as long as she stated she was."
In this regard Counsel has submitted that there is no legal basis for a conclusion that only leading members of a party can be the victims of persecution on the basis of a political opinion, and that in fact it is the lesser members who may at an even greater risk than those in a position of public prominence. Again Counsel submits that the member has erred when he bases his credibility findings on this incorrect assumption. Counsel has referred the Court to Prof. Hathaway's Refugee law at p.152 where he refers to this issue. Ms. Stack on behalf of the Respondent accepts what is stated as a matter of law, but says that in this case, the fact is that the member simply does not believe her.
In his Decision the Member refers to some of the documentation produced by the applicant in order to authenticate her membership evidence. He refers to the fact that her Certificate of Nationality is simply a copy document and not an original, and that the UFC Statement as to her membership of the party is signed by the vice president only, and not the Secretary General, and to the fact that it was procured in Lome in August 2003 and that the applicant got a friend to procure it.
In his Decision the Member outlined his understanding of the law as regards matters such as the definition of persecution for Convention reasons, the standard of proof required of an applicant, the shared burden of proof between the applicant and the Respondent, and credibility. Under the heading of "Finding" the member states only as follows:
"The Applicant did not give a credible account of having suffered persecution or any systemic violation of human rights demonstrative of a failure of State protection.
I find I cannot extend the benefit of the doubt in the manner particularised in paragraph 186 of the Handbook on Procedures and Criteria for Determining Refugee Status to the inconsistencies in the Applicant's story and must regard them as lacking in credibility."
Under the heading of "Decision", he concludes thus:
"Having considered the evidence of the Applicant and having considered the submissions of the Applicant's legal representative and having considered the material submitted on behalf of the Applicant and on behalf of the Refugee Appeals Commissioner I am of the view that the Applicant does not hold a well-founded fear of persecution for a reason set out in Section 2 of the Refugee Act, 1996. I find the Applicant's unsatisfactory in terms of credibility and substance. Accordingly, I would affirm the findings of the Refugee Applications Commissioner at first instance and reject the Applicant's appeal."
Legal Submissions:
Saul Woolfson BL on behalf of the applicant has made a number of substantial legal submissions against the factual background which I have outlined above. Firstly he has of course correctly drawn the Court's attention to the fact this is an application for leave and not the substantive application for judicial review, and has reminded the Court of the threshold which the applicant must overcome in order to be granted leave, and that has been described as the raising of an issue which is equivalent of "reasonable", "arguable", "weighty", and not something frivolous or trivial.
As I have already mentioned, Mr Woolfson has submitted that in relation to credibility the Tribunal ought to and was obliged to make the applicant aware of the concerns in the mind of the Tribunal as to her credibility so that the applicant could have an opportunity of dealing with or addressing those concerns. He has referred to the UNHCR Handbook, para 199 in this regard. This paragraph states that at the initial interview it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. The paragraph goes on to state that untrue facts of themselves are not a reason for refusal of refugee status, and that it is the examiner's responsibility to evaluate such statements in the light of all the circumstances of the case.
Mr Woolfson also referred to para 201 of the same work wherein it states:
"Very frequently the fact-finding process will not be complete until a wide range of circumstances has been ascertained. Taking isolated incidents out of context may be misleading. The cumulative effect of the applicant's experience must be taken into account. Where no single incident stands out above the others, sometimes a small incident may be "the last straw"; and although no single incident may be sufficient, all the incidents related by the applicant taken together, could make his fear "well-founded".
Mr Woolfson also referred to para 202 which states that the examiner's judgment should not be influenced by the personal consideration that the applicant may be an "undeserving case".
He has also referred the Court to a number of interesting authorities related to the difficult question as to the process by which an examiner or adjudicator must assess an applicant's credibility. For example, he referred the Court to the judgment of Ms. Justice Finlay Geoghegan in Bujari v. Minister for Justice, Equality and Law Reform and the Refugee Appeals Tribunal (unreported, High Court, 2nd May 2003) in which the learned judge stated:
"The assessment of the credibility of the applicant is a matter for the examiner at first instance or on appeal by the member of the Tribunal. It is not for this court on judicial review. However, the process by which such credibility is assessed does appear to be a matter which is within the remit of this court upon a judicial review. Guidance is given as to the manner in which such assessment should be carried out by examiners in the UNHCR Handbook at paras 195 - 202."
The Court has also been referred to the judgment of the same learned judge in Carciu v. Minister for Justice, Equality and Law Reform (unreported, High Court, 4th July 2003) where she states on an application for leave that:
"In this case the examiner has approached the matter in accordance with the conclusion which I reached in Bujari; namely that there is an obligation on the examiner to consider the explanations which are offered as to the reasons for which the applicant may have given an untrue account at an earlier stage. But the grounds sought to be relied on in this application raise the question as to whether or not the examiner has evaluated the credibility of the applicant's story in the light of all the circumstances of the case."
In this regard Counsel has referred to the fact that some of the matters taken into account by the Tribunal in its assessment of credibility are factually incorrect and that therefore matters have been taken into account which ought not to have been so taken into account, and that if only correct facts and circumstances were taken into account, the finding may have been different. Errors of fact were considered in Carciu by Ms. Justice Finlay Geoghegan and the Court was again referred to that judgment by Counsel, and particularly to the following passage;
"……….if a decision maker is assessing the credibility of an applicant and that decision is based on an incorrect, undisputed fact, that unless it can be established that that incorrect fact is clearly so insignificant that it was not material to the decision maker, that there is a potential breach of an obligation to observe fair procedures, or it may be asserted that the decision is unreasonable or irrational as based upon erroneous fact."
Counsel has also relied upon the judgment of Mr Justice Smyth in T.A. v. Minister for Justice, Equality and Law Reform (unreported, High Court, 15th January 2002) wherein the learned judge referred to the judgment of Kirby J. in Minister for Immigration and Ethnic Affairs v. Wu Shan Liang [1996] 185 CLR 259. In that judgment, Kirby J. in the High Court of Australia stated as follows at page 293, as quoted by Smyth J.:
"First it is not erroneous for a decision maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An overnice approach to the standard of proof to be applied here is undesirable. ………It is not an error of law for such a decision maker to test material provided by the criteria of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the "real chance" of persecution required by Chan. Secondly, the decision maker must not, by a process of factual findings on particular elements of the material provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision maker in the end to return to the question "what if I am wrong"?……… Otherwise by eliminating facts on the way to the final conclusion, based upon what seems "likely" or "entitled to greater weight" the decision maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a "real chance" of persecution."
Another important judgment relating to how credibility ought to be assessed is that of Brooke LJ in Karanakaran v. Secretary of State for the Home Department (supra), although much of the judgment is relevant also to the issue of internal relocation and the basis upon which that ought to be considered in the context of a well founded fear of persecution. Mr Woolfson also referred the Court to the judgment of the US 9th Circuit Court of Appeals, August 2000 in Shah v. INS where, he submits, that Court highlighted the fact that personal conjecture and speculation by the Tribunal Member is not a sound basis on which to make negative findings of credibility such as to deny refugee status. Mr Woolfson submits that in the present case there has been pure speculation on the part of the Tribunal, and indeed that some of the speculation has been based on incorrect facts, as I have already outlined, and therefore the decision cannot stand since credibility has not been correctly assessed.
Ms. Stack on behalf of the Respondent has submitted that it is quite clear that the Tribunal member simply did not believe the applicant's story. She referred to the fact that the member had cast some doubt on the authenticity of the applicant's copy documentation purporting to show that she was a member of the UFC, and Ms. Stack went further even than the Tribunal in suggesting that there may even be doubt as to whether the applicant was from Togo at all. But Mr Woolfson said that this could not be alleged since it is not to be found anywhere in the Decision of the Tribunal. Ms. Brett said that the Tribunal Member didn't believe her in the matter of her arrest, and that he based his scepticism on the fact that if the number of arrests was as great as that alleged by the applicant, surely the country of origin reports would have mentioned the fact, whereas there is mention only that some few members were arrested and released some hours later. She makes the point also that if the applicant is not believed in relation to the arrest, and there is a basis for that disbelief, the entire remainder of the applicant's account must fall inevitably since everything relied upon by the applicant in support of her claim for refugee status follows upon the arrest - her time in prison, the treatment meted out to her, her escape, her failure to find her husband and children at home and so on. This failure to find her credible in relation to her arrest at the meeting is therefore a fatal flaw in the remainder of the story leading to her flight to this country. Ms. Brett submits that the Member was perfectly entitled to make this credibility finding, and that he went about the process of assessing her credibility in a proper and correct way.
Ms. Brett submitted that while the Member was clearly mistaken when he stated that the applicant had not even attempted to locate her husband when she escaped from prison, this was the only error and it was not of sufficient seriousness to undermine the finding on credibility. She also submitted that it was only when credibility had been established that the applicant was entitled to the benefit of the doubt.
In relation to credibility, Ms. Brett referred to the judgment of Kelly J. in Gamara v. The Minister for Justice, Equality and Law Reform, unreported, High Court, 26th July 2000. That was a case in which the applicant was found to lack credibility, inspite of what was described as "quite appalling scars to his upper body which is consistent with the evidence he gave in relation to the alleged torture." Kelly J. states at page 15 of the unreported judgment:
"The issue of the Applicant's credibility was undoubtedly a relevant matter to be considered by the Authority. There was material before him which could support and justify a decision that the Applicant's claim lacked credibility. For example, his description of the conditions in which he was in prison suggested a comparatively mild regime. A diet of rice and fish, in-cell toilets and showers outside was hardly consistent with the actual prison conditions described by the Authority as being 'amongst the worst in any country that I have seen described'.
There were many other such inconsistencies such as the discrepancies between the amounts paid to effect the escape, the two versions of how the passport was acquire and numerous other items of information which could justify a finding such as was made."
The learned judge concluded in this regard:
"In my view the question of the credibility of the Applicant was a matter which was relevant for consideration by the Authority who was of course uniquely placed to make an adjudication upon it by virtue of the oral hearing which he conducted and where he had an opportunity to assess the demeanour of the Applicant."
Mr Woolfson in response has stated that the Tribunal in its Decision has said exactly why the applicant lacked credibility in relation to the rape, namely that "if the applicant was raped as she described it is salient that she told nobody about this other than an anonymous cell mate. She did not go to her husband or attempt to seek him on her release or attempt to get help from him or through him." Mr Woolfson says that it is not stated anywhere that she is not believed in relation to the rape because she is not believed about the arrest, and in any event he re-iterates that the basis of the negative credibility finding with regard to the rape is factually incorrect since she clearly stated that she attempted to find her husband on her escape.
Mr Woolfson has also pointed out to the Court, which is the fact, that the Gamara case to which Ms. Brett referred was a decision made after leave had first been granted by McGuinness J, and that since the present case is an application for leave only, different considerations apply than in the Gamara decision.
Conclusions:
As I have just stated, this is an application for leave, and therefore I must be satisfied that the applicant has succeeded in passing the threshold required to be overcome before the Court will grant such leave, and that is that the issue raised must be "reasonable", "arguable", "weighty", and not something frivolous or trivial.
The issue raised in this application boils down to whether the Tribunal Member went about the task of assessing the applicant's credibility in the manner required, and whether the basis upon which he came to his conclusions was soundly based in fact.
As has already been stated the factual bases for the negative credibility finding were:
1. The applicant's account contradicts the report of the Canadian Research Directorate Immigration and Refugee Board Ottawa to which I have referred.
3. The applicant did not go to her husband or attempt to seek him on her release or attempt to get help from him or through him.
4. The account of her escape from the prison hospital is defies credibility.
5. Many of her documents were open to challenge.
It seems clear on the authorities and according to the UNHCR Handbook that a negative credibility finding in relation to one fact, cannot be used as a basis for denying credibility generally. It is the cumulative effect of all facts which must be considered, even though some facts may be stronger than others and perhaps more credible than others. In the present case it is accepted by Counsel for the Respondent that the Member's finding of fact that she did not seek out her husband after her escape is not correct. It is submitted by the Respondent's Counsel that the error does not relate to a central or important matter. But in my view if one looks at the matters which were taken into account in the matter of credibility, this particular item is perhaps one which was more central to the Tribunal's finding than some others, such as a document being only a copy document, or the membership certificate not being signed by the General Secretary. It can be argued that if the Tribunal member had found that she had in fact gone to her husband and sought his help that this might have tilted the scales on which the basket of credibility ingredients was perched in the direction of credibility rather than incredibility. In my view it is arguable that the process by which her credibility was assessed contains possibly a significant flaw.
It is also arguable in my view that in choosing to accept the version of facts contained in the Canadian Report concerning treatment of UFC members as the correct one, and thereby implicitly excluding the US State Department Report and the Amnesty International Report from his consideration of the applicant's credibility, the Tribunal Member erred in the manner in which he assessed credibility, and that maybe he ought to have kept all the reports under consideration, and conducted a weighing exercise. If he had done so, he might still have come to a conclusion that there was the 10% chance, or a real chance that the applicant had a well-founded fear. That is another possible error which is in my view arguable.
I accept completely that the Tribunal member is uniquely placed to assess credibility, and that this Court in Judicial Review proceedings cannot second guess a negative credibility finding, simply because the Court might on the same correct facts come to a different conclusion. But in the present case, there is a significant factual error upon which reliance has been placed in the assessment of credibility, and credibility is at the heart of the Tribunal Member's finding that the applicant does not have a well-founded fear of persecution. That is the most crucial factor in this case.
The assessment of credibility is one of the most difficult tasks facing the Commissioner and the Tribunal member. It is an unenviable task, and one that is fraught with possible danger. It is very easy I suspect to come to a conclusion in the light of the questionnaire answers and the Interview, and possibly the oral hearing on the appeal, that the story as told is simply not believable. In everyday life, one is so used to simply having a feeling that all we are told is not exactly as someone would have us believe. One's experience of life hones the instincts, and there comes a point where we can feel that the truth can, if it exists, be smelt. But reliance on what one firmly believes is a correct instinct or gut feeling that the truth is not being told 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. A factual error of sufficient importance will often have the capacity to at least cast some doubt upon the integrity of the decision making process, and in those circumstances, this Court's function is to intervene, and if necessary on a substantive hearing, to provide redress.
A question related to the assessment of the credibility is the standard by which evidence of past persecution and possible future persecution must be judged by the Tribunal. The task of the Tribunal is not simply to be satisfied that there is a well-founded fear of persecution arising from the past, but also that, owing to such well-founded fear for a Convention reason is outside the country of nationality, and is unable or owing to such fear is unwilling to avail himself of the protection of that country. In other words, that if returned to that country he would be likely to suffer persecution in the future. It is therefore not sufficient for the adjudicator to be satisfied or not as the case may be about particular facts and details relating to past persecution. A lack of credibility on the part of the applicant in relation to some, but not all, past events, cannot foreclose or obviate the necessity to consider whether, if returned, it is likely that the applicant would suffer Convention persecution.
In the context of the present case, this could mean that simply because the Tribunal, on an inference drawn from incorrect facts in relation to the rape has concluded that the applicant cannot be believed, or that her account of her escape seems somewhat far-fetched, it cannot thereby lightly or automatically discount completely her evidence of membership of the UFC and he involvement at political rallies, since that evidence is relevant on its own in relation to whether if she were returned to Togo she would suffer persecution in the future on account of her political opinion. It must in the present case be borne in mind that her credibility as to her membership of the UFC is not seriously in doubt, in spite of some misgivings on the part of the Tribunal about the integrity of her membership document. So, even if the rape did not take place, and even if the account of her escape is not believed, these factors alone do not remove the possibility of persecution in the future on account of her political opinion and membership of the UFC. The question for the purpose of this judgment is simply the standard by which these matters must be judged. There has been some debate judicially in relation to the appropriate standard, and the way in which the adjudicators need to go about this difficult task. It seems now to be accepted that a standard of proof less than even the civil balance of probabilities is appropriate, as to the chances of future persecution taking place. In considering this aspect I am bearing in mind that in the present case, I am dealing with an application for leave, and it is simply whether it is arguable that credibility has been negatively assessed by a process which was faulty.
Mr Woolfson in his submissions referred to the judgment of Ms. Justice Finlay Geoghegan in Bujari (supra) wherein she referred to the fact that in that case there were two misstatements of fact taken into account by the Tribunal Member. She stated as follows in relation to the Grounds relied upon by that applicant in his Statement of Grounds:
"Firstly, that the member of the tribunal took into account irrelevant material in reaching his decision; and in particular, I think it is fair to say that at the end of the hearing, that was confined to what are accepted as two misstatements of fact in his assessment of the credibility of the applicant in relation to the material and significant inconsistencies which he perceived in the application and which he took the view had not been explained in a satisfactory manner.
Secondly, it was asserted that he did not take into account all the relevant matters, and in particular, he didn't take into account the fact that he had found that part of the applicant's story upon which the alleged persecution for religious reasons was based to be credible in respect to that."
That if I may say so is resonant of the submissions in this case.
I have already referred to the submission of Mr Woolfson that the member's findings on credibility are based more on personal conjecture that anything tangible in the applicant's evidence and account of what happened to her. I want to turn to the Karanakaran judgment of Brooke LJ because he very comprehensively examines the development of judicial thinking in relation to how and by what standards evidence relevant to the question of whether persecution in the future is likely if a person is returned to his/her country of origin. Of the authorities to which this Court has been referred on this application, I have found this one to be of greatest general assistance.
It was held in that case that the decision maker was not constrained by the rules of evidence that had been adopted in civil litigation, and was instead required to take account of all material considerations when making an assessment about the future, and that accordingly, the decision maker could not exclude from consideration any matters when assessing the future unless it felt that they could be safely discarded because it had no real doubt that they had not in fact occurred. Thus, it was held, when considering whether there was a serious possibility of persecution for a convention reason if an asylum seeker was returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believed, on what might sometimes be somewhat fragile evidence, that they probably had not occurred.
Lord Justice Brooke during the course of his judgment refers to a judgment of Sackville J. in Minister for Immigration and Multicultural Affairs v. Rajalingam [1999] FCA 719, from which he states the following principles emerge from the decided cases to which he has referred:
"(1) There may be circumstances in which a decision maker must take into account the possibility that alleged past events occurred even though it finds that these events probably did not occur. The reason for this is that the ultimate question is whether the applicant has a real substantial basis for his fear of future persecution. The decision maker must not foreclose reasonable speculation about the chances of the future hypothetical event happening.
(2) Although the civil standard of proof is not irrelevant to the fact-finding process, the decision maker cannot simply apply that standard to all fact finding. It frequently has to make its assessment on the basis of fragmented, incomplete and confused information. It has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate, and who often do not understand either the process or the language spoken by the decision maker/investigator. Even applicants with a genuine fear of persecution may not present as models of consistency or transparent veracity.
(3) In this context, when the decision maker is uncertain as to whether an alleged event occurred, or finds that although the probabilities are against it, the event may have occurred, it may be necessary to take into account the possibility that the event took place in deciding the ultimate question (for which see (1) above). Similarly if the non-occurrence of an event is important to the applicant's case, the possibility that that event did not occur may need to be considered by the decision maker even though it considers that the disputed event probably did occur.
(4) Although the 'what if I am wrong?' terminology has gained currency, it is more accurate to see this requirement as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a 'well-founded fear of being persecuted' for a convention reason.
(5) There is no reason in principle to support a general rule that a decision maker must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that its findings were correct. (in Guo's case, for instance, the High Court considered that it was enough that the tribunal appeared to have no doubt that the probability of error was significant).
(6) If a fair reading of the decision maker's reasons as a whole shows that 'it had no real doubt' that claimed events did not occur, then there is no warrant for holding that it should have considered the possibility that its findings were wrong."
This passage demonstrates the care which must be taken when the assessing the reliability of facts put forward by applicants for asylum in relation to past events, since those facts are relevant also to the consideration of the possibility that, if returned, an applicant may suffer persecution in the future. It puts forward a suggested means of dealing with this very difficult task. Brooke LJ goes on at page 469 to comment:
"This approach does not entail the decision maker………purporting to find 'proved' facts whether past or present, about which it is not satisfied on the balance of probabilities. What it does mean, on the other hand, is that it must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur (or, indeed, that they are not occurring at present).
Commenting further on the methodology to be adopted by decision makers in the exercise of assessing facts, he states at page 471:
"What is relevant in the present context is the methodology they adopted. Unless something is so trivial that even on a cumulative assessment it would be bound to carry no weight, or the decision maker has no real doubt that it is entitled to discard some point from its consideration altogether, it would be wrong to eliminate that point completely.
There has been in other jurisdictions such as the United Kingdom and Australia an evolving jurisprudence in this area. It is useful when developing a jurisprudence in this jurisdiction to have regard to those developments. I see no reason in principle why different considerations ought to apply in this jurisdiction, and I respectfully would suggest that the judgment of Brooke LJ, while of course not being binding in any way whatsoever, nevertheless is of great assistance in providing some guidance and assistance both to the administrative bodies whose task it is to assess applications for declarations of refugee status, and for our Courts when asked to consider whether those bodies have completed their task in the correct manner.
For the purposes of the present case, I am satisfied that arguable grounds have been put forward by the applicant, and I will therefore grant leave to seek by way of judicial review the reliefs set forth in paragraph 4, sub-paragraphs A,B,C,D,E and F, on the Grounds set forth at paragraph 5, sub-paragraphs, A,B,C,E,F,G,H,I,J,K,L,M. There is some overlapping and duplication of grounds in relation to some of these paragraphs, but it seems needless to require that the Statement of Grounds be amended or redrafted in that respect. I am not allowing the Grounds at sub-paragraphs D and N of the Statement of Grounds.
Approved: Peart J.
