High Court dismisses judicial review of Refugee Appeals Tribunal decision on asylum claim.

Neutral Citation Number: [2010] IEHC 511

THE HIGH COURT

JUDICIAL REVIEW

2008 754 JR

BETWEEN

E. N. K.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

JUDGMENT of Mr. Justice Ryan delivered the 15th October 2010

1. This is an application for leave to bring judicial review proceedings in respect of a decision of the Refugee Appeals Tribunal dated

the 15th April, 2008, whereby it affirmed the recommendation of the Refugee Applications Commissioner that the applicant should not

be declared a refugee. Ms. Aoife Carroll B.L. appeared for the applicant and Ms. Siobhan Stack B.L. for the respondents.

Background Circumstances

2. The applicant was born in 1975 in Cameroon. He arrived at Dublin Airport on the 7th April, 2006. He gave an account of having

travelled by air from Cameroon through Equatorial Guinea and Paris. On the journey he used someone else’s passport and he was

accompanied by a named person. His travel arrangements were made by friends who also paid for the journey, but he did not know

how much. He did not have documents.

3. The applicant applied for asylum on his date of arrival in the State. He claims to fear persecution if returned to Cameroon on

account of his membership of the Southern Cameroons National Council (SCNC), a separatist political organisation.

4. His case was considered by the Refugee Applications Commissioner who recommended negatively in respect of the asylum

application. The hearing before the Appeals Tribunal took place on the 28th February, 2008. In his application to the Commissioner,

the applicant submitted documentary materials to support his claim to refugee status and he supplemented this with additional

material that was furnished to the Tribunal prior to the hearing.

The Challenge

5. The basis of the application is that the Tribunal Member acted in an irrational and unreasonable manner in the way he approached

and understood the evidence that was before him. Obviously it is a matter for the Tribunal to assess the evidence and to decide what

weight to attach to particular items.

The challenge here is in respect of

(a) Country of origin information,

(b) Medical evidence and other documents,

(c) Previous Tribunal decisions and

(d) Findings on credibility.

(a) Country Of Origin Information.

6. The applicant submits that the Tribunal’s conclusion in respect of country of origin information was not reasonably or rationally

derived from the information. The relevant part of the decision appears at p. 16 and is as follows:-

“The Applicant is alleging that he fears persecution on the basis of his membership of the SCNC however after his alleged

address in 2002, he claimed he was no longer active as such but was still a member. Bearing in mind the large amount of

country of origin information submitted, some of which has been referred to, it is difficult to see how the Applicant would

be vulnerable. He was not a leader, he had a low profile and according to himself, he wanted to calm down his political

activities after his alleged arrest in 2002.”

7. The basis for this conclusion is set out at page 15. An Amnesty International Report of 2007, is cited to the following effect:-

• Members of the SCNC have been arrested and briefly detained.

• Numbers were arrested and released without charge after several days.

• Even the leaders, including Humphrey Prince, who tried to hold a press conference, were among 20 SCNC members

detained and released after a number of days.

• Only those convicted and sentenced for involvement in politically motivated violent activities have been sentenced to

long prison terms.

8. An Amnesty International Report of 2006 is the source for information that “approximately forty SCNC supporters were detained

along with the group’s leader and were released two days later even though they were holding clandestine meetings”.

9. The decision goes on to refer to information from a representative of the UNHCR in Cameroon to the effect that the conditions

there had improved. It then cites a US State Department report referring to the arrest of approximately 100 leaders, members and

supporters of the SCNC, but that the majority of the members arrested were released after brief detentions.

10. The distinction between ordinary members of the SCNC and its leaders is also apparent from the US State Department Report on

Cameroon for 2005, which says at p. 7 (of 24):-

“During the year security forces arrested approximately 100 leaders, members and supporters of the Southern Cameroons

National Council (SCNC), an Anglophone secessionist group ... The government considered the SCNC an illegal organization

because it advocated secession, which the law prohibits. The majority of SCNC members arrested during the year were

not charged with any crime and were released after brief detentions. However, during the year police detained seven

members of the SCNC leadership for periods of up to three months, and at year’s end all seven remained in detention

awaiting trial. For example on September 21, security forces arrested several SCNC activists in the North West Province

town of Belo while they were holding a meeting and distributing T-shirts. While most of these individuals were released

from custody after brief detentions, authorities charged three SCNC leaders with disturbing the public order and

transferred them to a prison in Bamenda. At year’s end they remained in prison and their trials were ongoing.”

11. This is the background to the conclusion reached by the Tribunal. The applicant does not suggest that any of the information is

misstated in the decision. In the course of argument counsel for the applicant, Ms. Carroll, referred to further country of origin

information in a report of the 26th June 2002, entitled "`Every Morning, Just Like Coffeee’ Torture in Cameroon", which was published

by the Medical Foundation for the Care of Victims of Torture. This report appears to be based on an analysis of written and published

sources and also of information provided by 60 Cameroonians who fled to the United Kingdom and sought the assistance of the

foundation in 2001. Ms. Carroll refers specifically to findings on pp. 15 and 16 of that report which are in fact based on sources

including the US State Department. I do not see anything in that report that contradicts the other country of origin information that

is cited by the Tribunal Member in his decision.

12. The applicant does not make the case that there was conflicting information contained in the country information that the

Tribunal should have weighed up to see which it would rely on. I do not believe that such a case could have been made out. Instead,

it is asserted that the Tribunal’s decision is not based on the country information. In my view, this assertion is incorrect as an

analysis of the country of origin information supplied by the applicant himself demonstrates.

13. I conclude accordingly that there was nothing irrational in the decision in respect of country of origin information. Neither was it

unreasonable or unsupported. The conclusion reached by the Tribunal was logically and rationally inferred from the country of origin

information.

(b) Medical Evidence and Other Documents.

14. A number of documents was submitted to the Tribunal in support of the applicant’s appeal. The Tribunal Member in his decision

said that an affidavit of the applicant’s Cameroonian lawyer “leaves much to be desired” and then goes on to consider some of the

other documents. The decision does not further particularise the defects in the affidavit, but there does not appear to be anything in

the analysis of the case that turns on the unspecified shortages in the affidavit in this respect. The applicant complains that the

Tribunal Member referred to one of the reports as “a medical report was allegedly written by a consultant surgeon and chief medical

officer employed by the Ministry of Public Health. Apart from the incorrect spelling, the Tribunal does not find it credible the author

would come to the conclusions contained therein”. The report appears over the name of a doctor and is dated the 30th May, 2002

and is headed Subject: Medical Report, with a reference given and is as follows:-

“TO: WHOM IT MAY CONCERN, I the undersigned Consultant Surgeon and chief Medical Officer in charge of B Hospital,

hereby certify to have taken care of A. aged about 27. Patient was brought in under escort on the 3rd March 2002. On

examination, patient was apprehensive and anxious, visibly traumatised. His vital signs were normal except a rapid pulse.

Elsewhere there were multiple ecchymosis from blunt trauma and whiplashes. There were no open wounds or bruises.

In conclusion Mr. A. E.N.K. brought in after torture probably during interruption.”

15. There are obvious problems with this report. The principal one is that there is no basis whatsoever in the medical report that

justifies the conclusion. Leaving aside entirely the errors and at least one non sequitur, this report is wholly unsatisfactory and

practically useless. What anybody could make of the conclusion is a mystery. It occurred to me during the hearing that it could be

said that the Tribunal Member should have inquired further or given the applicant an opportunity of explaining or producing an

explanation from the doctor as to what he meant and giving more details about his findings. On the other hand, this was the material

that was proffered as confirmation of the story that the applicant was telling. Now it is true that the report went back to the 30th

May, 2002 and there might be many questions about how it came to be produced and for what purpose and when and what role the

doctor had had in the treatment, if any, of the applicant and a host of other queries of that kind. But the basic point it seems to me

is that this report had to be considered by the Tribunal and he did so and rejected it and the ground on which he did so is, I think,

entirely justified.

16. It is true as the applicant contends that another medical report submitted to the Tribunal from Dr. Tony Lee, a General

Practitioner, is not expressly dealt with in the analysis section of the decision. On the other hand, the decision does record at an

earlier location, dealing with the submissions of the parties that two medical reports were submitted, which were consistent with the

applicant’s evidence, referring in this respect to the submission of the applicant. The applicant contends that Dr. Lee’s report was

thus not taken into account by the Tribunal, even though there is that reference at the early part of the decision and it is later

stated that the Member took all the documentation into account.

17. Dr. Lee’s report is dated the 8th September, 2006, and was furnished in response to a request from the applicant’s solicitor by

letter of the 16th August, 2006. This was subsequent to the s. 13(l) report and before the Tribunal hearing. The applicant gave a

history that is described in the report as “HISTORY OF TORTURE” as follows. In 1997 he was batoned by police and kicked with boots

causing scarring of the shins. In 2002 he was again beaten and the same occurred in 2005 and 2006, but no scarring occurred on any

of these occasions. The doctor concludes that the applicant has multiple scarring on both shins and the areas are noted on

photographs and they “would be consistent with trauma from rough surfaced solid objects e.g. boots or batons”.

18. It must be noted that this report was compiled up to nine years after the events it describes. It is also noteworthy that this

scarring is not referred to by the doctor allegedly dealing with. The findings of Dr. Lee are not related to torture in any specific way,

but merely to consistency with trauma by some kind of blunt instrument.

19. It would have been preferable if this report had been specifically mentioned by the Tribunal Member. Here was a medical report

that reflected the history given to the doctor by the patient and his examinations and his conclusions, which were, of course,

necessarily guarded in the circumstances. But can one assume that because the Tribunal did not mention Dr. Lee’s report that it did

not consider it? The reference to the report at p. 4 and the general statement at the end that all documents were considered tend to

contradict this. I do not think one can assume that the report was ignored simply because there is no explicit discussion of it. It is

also the case that Dr. Lee is not in a position to carry the applicant’s case very far, in view of the limited conclusions that he is able

to reach. The matter is further complicated by the fact that the applicant did not mention the 1997 arrest in his questionnaire or his

s. 11 interview. Then the medical examination took place after the s. 13 report by ORAC and was submitted to the Tribunal on appeal.

All things considered, the report is of little probative value.

20. The applicant also complains of the way the decision deals with an arrest warrant and associated document furnished by him to

corroborate his claim of being wanted by the authorities in Cameroon and having been arrested. However, this is by no means a

straightforward document. The Tribunal Member analysed it and found that the dates on it appeared to have been changed and also

that the information stated in the warrant contradicted the applicant’s own evidence. His findings in this regard are entirely justified.

(c) Previous Tribunal Decisions.

21. Ms Carroll for the applicant submitted previous Tribunal decisions about Cameroon where the applicants were successful and

complains in this case that the Tribunal Member did not analyse them in any detail, but merely said that they were inapplicable and

used a standard form paragraph in which to do that. He did not set them out seriatim and distinguish them from the facts of the

present case.

22. For her part, Ms. Stack for the respondents argues that no specific case was actually made and that only six positive cases were

selected but nothing in particular was identified in the cases that would influence this one.

23. In my view, the Tribunal’s decision does reflect the jurisprudence of this Court to the effect that previous decisions have no

binding authority. It would be difficult to see how they could have such an effect. Many if not most asylum applications depend on

issues of credibility. It is the personal element that always must be considered. There can be no general policy, because it is the case

made by the particular applicant that must be considered. All of this is clear from the decided cases. It also follows if this submission

is correct that previous decisions where the Tribunal decided in the opposite way would be of just as much potential relevance as

those where the applicant was declared a refugee. Of course, if an applicant were to make a particular case about, for example,

conditions in the country of origin and backed it up by reference to decisions in point that were helpful and relevant, it might well be

that the Tribunal would have to deal with the specific point that was raised. But the mere fact that the applicant has been able to

collect some other decisions relating to the same country that went in one direction does not seem to me to be sufficient to dictate

that the Tribunal Member in framing the decision must deal explicitly with them.

(d) Credibility Findings.

24. The criticism under this heading is that the Tribunal Member (i) failed to take account of the applicant’s evidence; (ii) engaged in

speculation and conjecture; and (iii) failed to consider the applicant’s credibility in the context of objective country of origin

information.

25. Two features of the decision are complained of. These relate to the applicant’s account of escaping from prison and his evidence

of being targeted because he had fallen foul of a local politician. The applicant’s story is recorded by the Tribunal Member and his

summary is not criticised or challenged in this application. He described how he joined an opposition party in 1996 and was in

subsequent years in trouble with the authorities because of his political activities and this included arrests in 1997, 2002 and 2005.

There was a warrant dated the 4th March, 2002, for his arrest and this warrant is a matter of comment by the Tribunal Member in a

manner that is challenged under another heading. The applicant’s arrest in February, 2005 arose out of a favour that he was doing for

a friend of his to bring SCNC material, including T-shirts and emblems from one location to another in his car. The decision records:

“The police found the material. The Applicant claims the police said `you are the people we are looking for. He was

arrested, brought to a police station and his father heard about it and followed him there. The Applicant told the

authorities that he was only helping a friend and they released him on condition that he produce his friend. The Applicant

states he tried to find his friend but he had disappeared. He went to the Prosecutor’s Office to explain but he was

informed that they could not help him.”

26. He subsequently learned from his lawyer that an arrest warrant for him was issued and he went into hiding. Nearly a year later the

authorities encountered the applicant and detained him for a week when he failed to produce his identity card. One of his captors was

a policeman - the decision continues - whom the applicant knew and he helped him to escape and the following day he released the

applicant to a waiting friend, who brought him to a nearby town from which he travelled to Ireland via Equatorial Guinea and France.

The Tribunal’s conclusion on this matter and on the allegation that a local politician had targeted him for discriminatory treatment and

persecution was as follows:-

“The Applicant alleges that he was arrested in 2006 because he had no ID card on him and was detained for a week but

was released when he recognised a policeman who allowed him to escape from the jail. In the early part of the Applicant’s

application, he claims that he faced two charges, that of subversion of the State authority and treason and faces

punishment which will be nothing short of death or imprisonment for life. This is not reflected in country information. The

Tribunal does not find it credible that a police friend of his would simply open the cell door for him to escape if such

charges were preferred against the Applicant. He told the Tribunal there is a lady called [NAME REDACTED], who has

taken a particular dislike to the Applicant and she has been instrumental in his persecution in full corroboration

[collaboration] with the government. The Tribunal does not find this credible.”

27. Ms Carroll’s challenge to this conclusion about the applicant’s alleged arrest and escape in 2006 and his fear of a local politician is

that the Tribunal Member failed to consider the evidence and the applicant’s credibility in the context of objective country of origin

information.

28. Ms. Stack, for the respondents, submitted that the application for leave was based on selective analysis of the Tribunal’s

decision. The applicant did not refer to some parts of the decision in which the Tribunal Member made findings that impacted on his

ultimate conclusion that the applicant was not a refugee. Ms. Stack argued that the country of origin information actually undermined

the applicant’s credibility. It is true, as the Tribunal Member noted in the decision, that the situation in Cameroon was reported in

reputable country of origin information as supplied by the applicant to have improved significantly over the situation in 2002. The

“‘Every Morning, Just Like Coffeee’ Torture in Cameroon” Report was of course not based on a visit to the country or direct

information from people in Cameroon, but rather a survey and analysis of other previous documentary material together with a survey

of 60 persons who had fled from Cameroon and consulted the organisation and who alleged different forms of persecution and torture.

Ms. Stack argued that the duty to give reasons does not require that every piece of evidence be recited or analysed or referred to by

the Tribunal Member.

29. The Tribunal Member had to assess the credibility of the applicant, which was at the heart of the application for asylum, by

reference not to gut feeling but to rationality and logic. The assessment had to take place by reference to the circumstances of the

case and conditions in Cameroon. If there was solid and reliable information in the country of origin material that contradicted the

case made by the applicant, that would be a very serious blow to his credibility. Does it work in the opposite direction? Does

considering the case in the context of country information mean that there is corroboration or confirmation of the applicant’s case if

something in that material establishes objectively that what he is saying has happened on some previous occasion or happens

regularly? This arises in relation to the particular evidence that the applicant was targeted by a local politician, and that he suffered

and will suffer as a result if returned. In a US State Department Report released on the 6th March, 2007, and relating to conditions in

Cameroon in 2006, there is reference to the general problem that the applicant complained about. It says the police demanded bribes

at checkpoints “and influential citizens reportedly paid police to make arrests or abuse individuals involved in personal disputes”. It

also says that police often arrested people on spurious charges on Friday at midday or in the afternoon, knowing that no courts would

be sitting at the weekends, so the person would be in custody until Monday at the earliest when he had to be brought before a court.

“Police and gendarmes made such ‘Friday arrests’ after accepting bribes from persons who had private grievances. There were no

known cases of policemen or gendarmes being sanctioned or punished for this practice.”

30. What does that information prove? If the report is regarded as credible and authoritative, as I think it is reasonable to do for this

purpose, it shows that the type of thing that the applicant ascribes to a particular local politician can and does happen in Cameroon.

An influential person by bribing the police can cause a lot of trouble for someone considered an enemy. But of course it does not

prove that that is what happened in this case with this applicant. In the sense that it establishes the possibility, it is of assistance to

him and he is right to point to it. The same information is contained in a 2005 Report by the US State Department. This leads me to

two observations. First, anyone with access to these reports would know about the allegations against the police and gendarmes.

Second, anybody coming from Cameroon would be well aware of this possibility. But the fact that these descriptions appear in widely

available sources and reflect what can happen in the country does not of course mean that it did actually happen on the occasion

alleged by the applicant. In that respect, it leaves the Tribunal to make up its mind as to whether the applicant is credible and

accurate in what he is saying. It is a misunderstanding to think that reference to these matters in country of origin information

confirms what the applicant is saying. What it does is demonstrate that what the applicant is saying could have happened, not that it

did happen. It is of assistance in that it out rules contradiction of what he is saying, but does not really go further than that. This is

the context in which the information relied on by the applicant has to be considered.

31. Another matter relied on by the applicant is of even less value in corroborating his account. This appears at p. 36 of the “‘Every

Morning, Just Like Coffeee’ Torture in Cameroon” Report which gives the information that 25% of 57 respondents surveyed gave

information that they were released or escaped from detention by being "smuggled out by a sympathetic guard or a friend or party

colleague in disguise or by arrangement through some intervention of their party, a human rights organisation or religious leader". That

really is wholly inadequate as any form of confirmation of what the applicant was saying.

32. In A.M.T. v. The Minister for Justice, Equality and Law Reform (Unreported, High Court, 14th May, 2004) Finlay Geoghegan J. said

that the obligation to assess the applicant’s story in the context of relevant country of origin information:-

“. . . appears to follow from the first issue identified by Professor Goodwin-Gill and approved by Kelly J. in Camara v The

Minister for Justice, Equality and Law Reform (Unreported, High Court, Kelly J., 26th July, 2000).

‘First, could the applicant’s story have happened ... given what we know from available country of origin

information?’”

33. In this case, the Tribunal focused on the applicant’s story that he was released from jail by a friend who was a policeman. One of

the points in the applicant’s written submissions is that the Tribunal misstated the situation by referring to a policeman that he

recognised, as opposed to a friend who was a policeman but I think that this is quibbling and is not a justified criticism when one

considers the decision as a whole. It is clear what point the Tribunal Member is making in the decision. That point is that he found it

impossible to believe the applicant’s story that he faced charges of subversion and treason with punishment of death or life

imprisonment. That he said was not reflected in country information; in fact, it is substantially contradicted by that material.

Secondly, he found it incredible that a police friend would let him walk free if he had been facing such serious charges. He also found

incredible the applicant’s allegation that a local politician was instrumental in persecuting him in collaboration with the government.

34. It seems to me that all of these findings are rationally based, logical inferences from the evidence heard by the Tribunal Member.

He had to make decisions on these questions and he did so. He considered the evidence, but he did not misstate or misunderstand it.

The criticism of the wording of this part of the decision in that the Tribunal says that the applicant recognised a policeman is

invalidated within a few lines when the decision refers to a police friend. It seems to me that this consideration by the Tribunal was

carried out in the context of country of origin information and the very paragraph in which the impugned conclusion is stated actually

refers to country of origin information in regard to one part of the applicant’s story. The Tribunal Member does not reject the

applicant’s case on the ground that it could not have happened in Cameroon or that there is country of origin information to establish

the impossibility of his alleged events having happened. Neither does he say that the country of origin information establishes the

possibility that an influential person could have set up an enemy for arrest and detention by the police, for some period at least. If he

had expressly said so, that would immunise the decision from the criticism that is made. But does it follow that because he did not

actually say that that the decision is necessarily defective? I cannot find in the authorities any rule to that effect that that is of

general application or that could have application in this case. It would simply not make sense. I understand the case law does make

the important point that the evidence in an asylum case is not considered in the abstract but has a context in the country of origin

and therefore that the material relating to the country is of real importance in setting the applicant’s case in context. Finlay

Geoghegan J. and Kelly J. endorsed the approach that began with the question whether the event or events described by the

applicant or his story as a whole could have occurred in the country of origin given the information that is available. But it must of

course be borne in mind that this is excluding the impossibility of the event as a basis of rejecting the claim.

35. There will no doubt be occasions when an applicant acquires corroboration or confirmation of his story by country of origin

information. There cannot be a general rule either way. The country of origin information is usually unable to prove a case but it is

possible for it to disprove a case to the extent that it is reliable and not explained by an applicant. And one ought not to rule out

exceptional circumstances.

36. In this applicant’s case, it seems to me that there can be no reasonable attack on the Tribunal’s decision. The weight of evidence

was a matter for the Tribunal Member. It is not for this court to decide the matter. It would I think be doing just that to invoke the

country of origin information for the purpose of invalidating findings within jurisdiction made by the Tribunal Member and in

circumstances where as a matter of logic the documentary material simply cannot achieve the purpose that is claimed for it.

37. It seems to me that this case is based on parsing and deconstructing the decision of the Tribunal. The conclusion that the

Tribunal reached was that the applicant was not a refugee and affirmed the recommendation of the Commissioner, who had also

rejected the asylum claim, concluding that the applicant’s evidence as a whole lacked credibility and was not supported by country of

origin information. Citing paragraph 204 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status -

“the benefit of the doubt should, however only be given when all the evidence has been obtained and checked and when

the examiner is satisfied as to the applicant’s general credibility. The applicant’s statement must be coherent and

plausible and must not run counter to general known facts”

38. - the Commissioner said that "in this case, it has been established there are too many discrepancies in the applicant’s account

which could seriously undermine the credibility of the claim”.

39. There was ample material before the Tribunal to justify its conclusion. The decision is clear and is detailed although it does not

expressly address every single piece of evidence. The applicant fails to point in any specific way to how this decision is flawed and

therefore judicially reviewable.

40. The applicant’s case is that the Tribunal Member misconstrued the evidence. It is clear that it is for him to assess the evidence

and to weight it up in reaching his conclusion. In this case, a critical finding was to reject the applicant’s credibility and the decision

sets out why the Tribunal reached that conclusion. It does so clearly and refers to the relevant material.

41. The only evidence of any possible significance that is not expressly dealt with by the Tribunal is the report of Dr. Tony Lee. It

would have been preferable if that had been referred to. But I do not think that the failure to do so undermines or invalidates the

conclusions reached in this decision.

42. I think that the objection made by counsel on behalf of the respondents that this is a selective analysis of the decision is correct.

I also think that the criticisms are entirely general and not specific and that there is little to suggest that another analysis would lead

to a different outcome.

43. In the result, I think that this application was fairly considered by the Tribunal and that there is no substantial ground for

challenging it by way of judicial review.