NEUTRAL CITATION 2012 [IEHC] 573
THE HIGH COURT
JUDICIAL REVIEW [2008 No. 972 J.R.]
BETWEEN
R O (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND A O)
APPLICANT AND
THE MINISTER FOR JUSTICE AND EQUALITY AND MARGARET LEVEY SITTING AS THE REFUGEE APPEALS TRIBUNAL RESPONDENT
JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 20th day of December, 2012
1. This is an application for judicial review of a decision of the Refugee Appeals Tribunal refusing refugee status to an infant applicant because of the lack of credibility of her mother. The issue for decision in this case is whether the Refugee Appeals Tribunal expressed adequate reasons for rejecting credibility. Leave to seek judicial review was granted by O'Keefe J. on 1st May 2012 on the following ground only: "that no adequate reason has been provided by the Refugee Appeals Tribunal for reaching its conclusion on the Applicant's credibility and as a result the decision is invalid".
2. The infant applicant was born on 9th October, 2006 in Ireland and her mother, who was born in 1978 in Nigeria, claimed refugee status for her daughter based on an apprehension that her husband and his family would harm the infant applicant if she returned to Nigeria.
3. The Office of Refugee Applications Commissioner (ORAC) made a report on the infant applicant's claim for refugee status and gave a negative recommendation. The applicant's mother fears persecution from her husband, his family and people in his village who, it is said, wish to kill her because of a sexual encounter with her brother in law, perceived by her husband as evidence of an affair but described by her as rape. Her claim was recommended for rejection as there were concerns about her credibility which cumulatively "served to undermine the applicant's claim that she has a well founded fear of persecution based on Convention grounds".
4. Following the refusal of the infant applicant's claim for refugee status, her mother, on her behalf, appealed to the Refugee Appeals Tribunal (the "Tribunal") and it is that decision which is sought to be impugned in these proceedings. Section 3 of the Tribunal's decision describes the applicant's claim and no issue is taken with the accuracy of the statement of the applicant's claim in these proceedings.
5. The claim is stated by the Tribunal in the following terms:-
'The Applicant herein was born in Ireland on the 9th October, 2006. The Applicant's mother gave evidence on her behalf as follows. The Applicant's mother was born in 1978 and is Nigerian. She is Yoruban and a Muslim. She was married in 2002. Her husband came back from a business trip and saw the Applicant her brother law engaging in sexual intercourse. This was in Lagos. The Applicant said he had raped her but the husband didn't believe her. He left the house and returned in 3 days and said he went to the village in Osun state to tell his parents what happened. He took her children to her parents in Lagos. He returned and said he was asked to take her and the brother in law to the village. They were taken to a palace. This was a small room where meetings took place with chiefs. They said what happened was an abomination and a judgment was to be passed on them. They said that the baby she was carrying would meet the consequences too. They were to be kept in a different room. She was kept in a room for nine days. He was kept for seven days in the room. On the seventh day he was killed. She heard him shouting and the guard at her door confirmed it. The guard said he would let her go and he would be punished for this but they would not kill him. She walked to the next village. She met a man and explained what happened and he said he would help her. He took her to his house and she remained in his house for a couple of months. Then she met a lady there. Her name was Omilade. She became her friend. She told her to take things easy. She introduced her to her sister. She didn't go to the police as they are corrupt. Her husband is rich and influential. They would get her husbands version of events and give her back to her husband. She came to take her to Lagos and she met a man there who showed her a passport and explained to her what would happen and they would bring her to a safe country. This was in September, 2006. She couldn't relocate as if she met someone and told them what happened to her they might tell people her story and she would be found. Her husband might send the police to look for her. She was asked why she put her husbands name down in her hospital details as her next of kin and she said she didn't think of anyone else. In cross examination she was asked if her brother in law came back before her husband and returned after 3 days and she said he did. He had a key and came back and went to his room. He came back as he had to go to work. It was put to her that he had allegedly raped her and yet she was unconcerned that he was back in her house and didn't contact the police and she said he wouldn't do it again as he had been caught. He admitted to raping her and said it was the devils work. He told his parents this when they went back to the village. It was some weeks before the husband took her to the village. The village of Oshogbo was five hours away. They all went in his car. Different guards were guarding her and her brother in law. Regarding her escape from the palace and her walk to the next village it was put to her that it was 70km to Alabameta and would take more than an hour to walk it and she said she ran. A map was handed in by the presenting officer which indicated that Alabameta was not in fact the next village and it showed the distance from the palace. She had an original passport but her husband had it. She was almost nine months pregnant when she got on the plane and she was not queried about this and she said it was a small pregnancy. She was a muslim and she was asked why a pastor in the church would help her and she said it was beside her parents house. She was in London for six months for a visit in 2004 and went to Belfast to visit her brother and his wife and had Miriam there. She travelled to London to shop and to do business and visit Belfast but went into labour and there was nothing she could do. She was asked by the Tribunal if the brother in law was in the house the whole time prior to going back to the village with the husband and she said he was. She was asked if the husband forced them to go to the village and she said he told them the parents wanted to talk to them. She was not worried as she did not know what was going to happen. Regarding the applicant herein she said that she feared she would be killed by her husband."[sic]
Section 6 of the decision entitled 'Analysis of the Applicant's Claim'
6. It is the alleged deficiencies in section 6 of the decision of the Tribunal which are at issue in these proceedings. The Tribunal stated that it did not accept that the infant applicant's mother had a genuine fear of persecution "for the following reasons":
Reason No.1
Reason No.2
7. The second reason given by the author of the Decision is as follows:-
"Similarly the whole saga regarding the trip to the village is not credible either. Some weeks after returning from the village himself, the husband asked them, the rapist brother ((or as the husband thought the brother who was having an affair with his wife) who was still living in his (the husband's) house as he had to go to work)), and the Applicant to accompany him to his village as his parents wanted to talk to them. Without question, they went with him on this five hour journey not knowing what it was the parents wanted to discuss. Given what had allegedly occurred, be it a rape or a consensual sexual act, the idea that the parties involved would all happily embark on a 5 hour journey together knowing only that the parents wanted to talk to them is just preposterous."
Reason No.3
8. The third reason for rejecting the applicant's credibility appears to be comprised in the following text:-
"On arrival a meeting was held with various interested parties and it was decided that what had occurred (the affair between the parties) was an abomination and a judgment was to be passed on them and they were locked in separate rooms in the palace. Eventually the brother in law was killed and she managed to escape with the assistance of the guard. The fact that the brother-in-law admitted to a rape to his parents and that he had engaged in the devils work casts serious doubt on the assertion that it was decided this judgment be carried out because of an affair."
Reason No.4
9. The fourth reason given is expressed as follows:-
"The fact that parents would be a party to the killing of their own son in such circumstances is also not credible."
Reason No.5
10. The fifth reason for the author's doubt as to credibility is expressed as follows:
"Her walk to the next village of Alabameta, which wasn't in fact the next village, took her an hour. It was 70klm or over 40 miles. When this was put to her she said she ran."
Reason No.6
11. The sixth reason given is as follows:-
"The fact that a complete stranger would house her for a period of two months is also not credible."
Reason No.7
12. The seventh reason given is:-
"The fact that it is her husband that she fears and yet gives his name and Nigerian phone number to the hospital here as her next-of-kin undermines her claim also. The explanation given that she didn't think to give anyone else's name makes no sense. She said the phone number she gave was her own number which makes even less sense."
A New Ground of Challenge?
13. The applicant has submitted that an error entered the decision making process because the infant applicant's mother's credibility was assessed solely by reference to her personal credibility without any analysis whatsoever of objective country of origin information.
14. This submission seems to ignore the fact that no country of origin information was submitted on behalf of the infant applicant. In addition, the persecution or harm feared was not connected to conditions in Nigeria generally but instead arose from personal and domestic circumstances. I should also say that this submission appears to go beyond the matter in respect of which O'Keeffe J. granted leave in this case. Leaving these concerns aside in case they are misplaced, I now address this submission.
15. Reference was made on behalf of the applicant to the judgment of Keene L.J. in Y v. Secretary of State for the Home Department [2006] EWCA Civ 1223 and H.K. v. Secretary of State for the Home Department [2006] EWCA Civ 1037, and in particular to the judgment given by Neuberger L.J. who, at paras. 28 and 29 said:-
"28. Further, in many asylum cases, some, even most, of the appellant's story may seem inherently unlikely but that does not mean it is untrue. The ingredients of a story, and the story as a whole, have to be considered against available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).
29. Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugees Status (1991) (at p. 81):-
‘In assessing the general human rights information, decision makers must constantly be on their guard to avoid implicitly recharacterising the nature of the risk based on their own perceptions of reasonability.'"
16. Keene L.J. made reference to principles which caution against an adjudicator failing to culturally contextualise an account of events when testing credibility. He summarised the position at paragraph 27 of his judgment saying:-
"A decision maker is entitled to regard an account as incredible by such standards [i.e. standards of common sense and rationality and consistency], but he must take care not to do so merely because it would not seem unreasonable if it had happened in this country. Is essence, he must look through the spectacles provided by the information he has about conditions in the country in question."
I agree with the principles expressed in this series of decisions advising assessors to adjust their cultural perspectives. However, I find that the principles have no useful application in this case as counsel for the applicant did not describe, whether by reference to country of origin information or any other source, what elements of life in Nigeria were not understood by the Tribunal. It was not sought to be established for example, that Nigerians readily provide lengthy hospitality to strangers, that Nigerian parents resort to killing their philandering sons, that Nigerian women would not object to living with men who raped them, or that Nigerians could run vast distances in extraordinary times. I therefore reject the complaint that the Tribunal unlawfully assessed credibility without reference to relevant country of origin information. For an applicant to succeed in such a claim, the material (not referred to by the Tribunal) would need to be described and in addition an applicant would have to persuade the court that such material was capable of having an effect on credibility. In any event, the complaint was not comprised in the order granting leave to seek judicial review.
Assessing Adequacy of Reasons for Credibility Findings
17. The complaint in this case is not about the absence of reasons. The focus of these proceedings was on the adequacy of the reasons for rejecting credibility. Seven aspects of the infant applicant's mother's story were found wanting in credibility and, in my opinion, a reason was stated or was patent in respect of each finding. (I need hardly add that the duty to give reasons on credibility findings is not automatically breached where the reason for the incredulity is patent and is therefore not expressly stated. In this case for example, the fifth reason given for disbelieving the applicant related to her claim that she walked to the next village in an hour. When it was put to her that the next village was some 70 kilometres distant, she said that she ran. That the Tribunal does make the obvious comment that no human being could run much less walk 70 kilometres in an hour and that for this reason she is disbelieved, does not offend the rules on giving reasons for credibility findings).
18. While many 'reasons' cases deal with the absence of reasons, a subcategory of cases in this area deals with the cogency of reasons. I adopt as a reliable shortcut the pithy summary of this law in "Administrative Law in Ireland" (Hogan & Morgan) (4th Ed.) at para. 14-141, p. 684 where the learned authors say:-
".. .in terms of the actual results, there have been very few cases in which a reason, however peremptory, has been held not to suffice."
The authors, at para. 14-148 say:-
"While, as can be seen, the general judicial consensus has been to set a rather low standard for the cogency of reasons, this approach has been challenged by some judges and commentators."
The authors refer to the decision of Kelly J. in Deerland Construction v. Aquatic Licensing Appeals Board [2009] 1 IR 673, in which reasons were held to be inadequate. The learned judge referred to a passage from South Bucks County Council v. Porter [2004] 1 WLR 1953 at para. 36 in which Brown L.J. stated:-
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on 'the principal important controversial issues', disclosing how any issue of law or fact was resolved...The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example, by misunderstanding some relevant policy or some other important matter, or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in dispute, not to every material consideration. They should enable disappointed developers to assess their proposals of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
19. This passage is very useful guidance for a court examining the adequacy of reasons for a substantive administrative decision. Subject to some obvious adjustment, it is also useful guidance to test adequacy of reasons for a subordinate decision that an applicant for refugee status lacks credibility. (The credibility decision is subordinate to the substantive decision to grant or refuse international protection.)
20. In Memishi v. The Refugee Appeals Tribunal (Unreported, Peart J. 25th June 2003), Peart J. quotes with approval from a decision of the Court of Appeals in the 9th Circuit entitled Diaz-Marroquin v. Immigration and Naturalisation Service (2001) U.S. App. Lexis 2352, as follows:
"...adverse credibility determinations must be (1) supported by specific, cogent reasons and (2) the reasons set forth must be substantial and must bear a legitimate nexus to the finding...The inconsistencies in Diaz's testimony do not provide adequate support for finding that Diaz lacked credibility. The inconsistencies were minor...they did not enhance Diaz's asylum application... Also they were communicated through an interpreter...The second reason that the IJ used to justify her adverse credibility finding was that she found parts of Diaz's testimony implausible. Without more, personal conjecture is an insufficient basis for an adverse credibility determination."
21. Peart J. says:
"The principles which emerge from these decisions are that a Tribunal is not entitled to make adverse credibility findings against an applicant without cogent reasons bearing a nexus to the decision, that the reasons for any such adverse finding on credibility must be substantial and not relating only to minor matters, that the fact that some important detail is not included in the application form completed by the applicant when he/she first arrives is not of itself sufficient to form the basis of an adverse credibility finding, and finally, that the fact that the authority finds the applicant's story inherently implausible or unbelievable is not sufficient. Mere conjecture on the part of the authority is insufficient, and that corroboration is not essential to establish an applicant's credibility. As general principles, I agree."
20. In I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 353, Cooke J. distilled principles from a large number of cases on the assessment of credibility and in relation to giving reasons for credibility findings he said as follows:.
21. In Kikumbi v. The Office of the Refugee Applications Commissioner et al [2007] IEHC 11 (7th February, 2007), Herbert J. provides a very useful account of the duty to give reasons in the context of credibility findings in asylum cases. Herbert J. identifies case law which establishes that reasons must be "proper, intelligible and adequate" (see Ni Eili v. The Environmental Protection Agency, Unreported, Supreme Court, 30th July 1999) and MJT Securities Ltd. v. Secretary of State for Environment [1998] J.P.L. 138.
Herbert J. notes as follows:
"Moreover, it seems clear that the question of the degree to which a decision must be supported by reasons stated in detail will vary with the nature of the decision itself. In a case such as International Fishing Vessels Ltd. v. Minister for the Marine [1989] I.R. 149, or Dunnes Stores Ireland Company v. Maloney [1999] 3 IR 542, there was a multiplicity of possible reasons, some capable of being unknown even in their general nature to the person affected. This situation may require a more ample statement of reasons than in a simpler case where the issues are more defined.
A survey of this case law reveals principles which may be used to assess the adequacy of reasons for credibility findings in asylum cases:
(i) Reasons must be intelligible in the sense that the reasons should enable the reader to understand why the applicant for protection is disbelieved on a certain point and/or generally (see South Bucks County Council v. Porter (supra) and Deerland Construction v. Aquatic Licensing Appeals Board (supra).
(ii) Reasons must be specific, cogent and substantial (see Memishi v. The Refugee Appeals Tribunal (supra) and Diaz-Marroquin v. Immigration and Naturalisation Service (supra).
(iii) Reasons must be drawn from correct facts and must bear a legitimate connection to the adverse credibility findings (see I.R. v. The Minister for Justice, Equality and Law Reform (supra)).
(iv) Reasons must relate to the substantive basis of the claim and not to minor matters. (see I.R. v. The Minister for Justice, Equality and Law Reform (supra)).
27. In identifying these principles I am not saying they are to be applied mechanically or sequentially or in any particular way. Neither am I suggesting that it is necessary to deconstruct credibility findings, to borrow the phraseology of Cooke J. in JR. (supra). It was appropriate to engage in fairly minute examination of reasons for credibility findings in this case because of the single, pointed ground upon which leave was granted.
28. In addition to the principles on adequacy of reasons which emerge from case law, I observe that when a court is reviewing the adequacy of reasons for credibility findings, it is not conducting the same level of scrutiny of the adequacy of reasons as it might undertake if it were reviewing a substantive decision, such as a decision to grant a planning permission or grant a mobile phone licence. As I have observed earlier, credibility findings in an asylum application are subordinate decisions on the pathway to the substantive decision - to grant or withhold international protection.
29. I should also say that reasons, self-evidently, must be rational in the traditional public law sense. That case law does not include rationality as a requirement for adequacy of reasons on credibility findings is probably because such a defect would attract a challenge to the rationality of the resulting substantive decision rather than an attack on the subordinate decision as to credibility. Thus, if the RAT were to say "I don't believe the applicant because she has blue eyes", the challenger would be more than likely to say that the resulting decision refusing international protection was irrational rather than limit the challenge to a plea that an inadequate reason had been given for rejecting credibility.
30. In view of the foregoing, I approach the review of the adequacy of reasons in this case by asking the following questions:
(i) Were reasons given or discernible for the credibility findings?
(ii) If so, were the reasons intelligible in the sense that the reader/addressee could understand why the finding was made?
(iii) Were the reasons specific, cogent and substantial?
(iv) Were they based on correct facts?
(v) Were they rational?
Returning now to each of the credibility findings, I assess them as follows.
The First Credibility Finding
31. The first credibility finding related to the Tribunal's view as to the implausibility of the cohabitation for a number of weeks of the applicant and the man who raped her, and the implausibility of the applicant not even considering going to the police. The Tribunal found the applicant's explanation (that the rapist brother-in-law had a key to the house and the applicant's claim that she did not see him) implausible.
32. Clear reasons are expressed for this disbelief. The Tribunal opined that it was unlikely that the applicant would share accommodation for a number of weeks with the man who raped her. This reason was intelligible in the sense that a reader may readily understand the reason for the disbelief. The reason is specific and cogent, in that it is logical and clear. It is substantial in as much as it relates to a central part of the applicant's narrative. There is no suggestion that the finding is based on anything other than correct facts, and on any analysis, the reason is entirely rational. As to the last point, it needs hardly be repeated that I might not have come to the same conclusion as to the Implausibility of a person living with her rapist, but that is not, of course, the test for rationality.
The Second Credibility Finding
33. The second reason given for disbelieving the applicant was the implausibility of the journey undertaken to the applicant's husband's parents and home village.
34. In my opinion, clear reasons were stated for the incredulity of the Tribunal. The Tribunal thought that it was highly unlikely (in their words, "preposterous") that the parties involved in the saga (the applicant claiming to have been raped, the brother-in-law alleged to be having an affair with her, and the enraged husband) would undertake a journey for an unstated reason to visit the enraged husband's parents.
35. The reasons given are intelligible in that a reader or addressee can readily understand why the Tribunal is incredulous. The reasons are specific and cogent, being clear and logical. They are substantial in the sense that they relate to a central part of the applicant's narrative. It seems to me that the reasons are based on correct facts, though I had some concern at the Tribunal's characterisation of the attitude of those undertaking the journey as "happily" embarking on a five-hour journey. I could not find evidence that this adverb accurately describes their attitude, though it would appear that the journey was undertaken voluntarily by all the participants and perhaps the adverb was used to convey this meaning. In any event, if this is a mistake, it is of a trivial nature. Finally, I find that the reason for the disbelief is entirely rational.
The Third Credibility Finding
36. The third credibility finding related to the claim that the rapist brother-in-law confessed rape to his parents but the elder's court punished him (by death) because he had an affair. The reason for the credibility finding here is the clearly stated inconsistency between the rape confession and the punishment for what was deemed to be an affair. This reason is intelligible and it is specific, cogent, being clear and logical. It is substantial in that it relates to a central part of the applicant's narrative. There is no suggestion that the finding is based on incorrect facts, and in my opinion, this reason for questioning the credibility of the applicant is entirely rational.
The Fourth Credibility Finding
37. The fourth credibility finding was stated in a short sentence as follows: "The fact that the parents would be a party to the killing of their own son in such circumstances is also not credible". This is an example of the reason for the credibility finding not being expressly stated but being patent. Parents do not usually kill their children. Though patent, the reason, in my opinion, is intelligible and the reader is left in no doubt as to the reason for the finding.
38. The reason is specific and cogent in that it is clear and logical. It is substantial in that it relates to a central part of the applicant's narrative and there is no question but that it is based upon the correct facts. In addition, this reason is rational.
The Fifth Credibility Finding
39. As with the fourth credibility finding, the reason for the fifth finding relating to the implausibility of running 70km to the next village in one hour is patent. It is intelligible in the sense in which I have been using that adjective and it is specific and cogent. It is substantial as it relates to a central part of the applicant's narrative, dealing with the manner in which she allegedly escaped her persecutors. There is no question but that is based upon correct facts and it is self-evidently rational.
The Sixth Credibility Finding
40. The sixth finding on credibility was stated by the Tribunal as follows: "The fact that a complete stranger would house her for a period of two months is also not credible". As with other credibility findings, the reason here is patent. It is intelligible in that one can understand the reason being expressed: the Tribunal is saying that strangers do not normally extend extensive hospitality to others. The enquiry here, it is worth recalling, is not whether one agrees with the reason but rather whether one can understand what it is. The reason, though patent, is specific, cogent and substantial, as again, it relates to a major part of the applicant's story - how and where she survived in the months after her escape. The reason is based upon correct facts, and in my opinion, it is rational. Naturally, one could conclude that in certain circumstances, complete strangers might provide extensive hospitality to a person in need; the Good Samaritan is not an unknown figure, no matter what the cultural context. The test for rationality (in this case of the reason) is not whether one agrees with the reason, but rather whether the reason is fundamentally at variance with or in the teeth of common sense (see State (Keegan) v. Stardust Victims Compensation Tribunal [1986)] I.R. 642) and no-one could so allege in respect of this reason.
The Seventh Credibility Finding
41. The seventh finding on credibility dealt with the implausibility of the applicant noting her husband, allegedly her persecutor, as her next of kin and giving his phone number as her phone number, as a patient in hospital. When challenged on why she gave her husband's number, she said that it was her own number and the Tribunal found that this "made even less sense". The reason for the incredulity here is patent rather than expressly stated. It is intelligible because an objective reader or the addressee of the decision could have no difficulty understanding why the Tribunal found it incredible that she would note her husband as her next of kin and use his phone number, saying it was her own. Her husband, according to the applicant, was enraged at what he perceived as her infidelity and he had participated in the killing of his own brother for the same reason. The reason here is specific and cogent, being clear and logical. It is substantial, because it relates to a very significant part of the applicant's account of events. It has never been said that this finding is based upon an incorrect fact and the reason given is self-evidently rational.
42. I conclude that adequate reasons were given for each of the credibility findings and I therefore refuse the applicant the reliefs she seeks. Given the minute scrutiny of the reasons for credibility, I should add that though in this case each of the findings was upheld, this approach should not be understood as requiring each such finding to be upheld by the High Court in order to sustain the legality of a decision. A decision maker could err in one or more findings as to credibility and the High Court might, notwithstanding such error, conclude that overall, the decision on credibility is lawful. It is, in that most used, hopefully not overused, phrase, a question of fact and degree in each case.
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