High Court refuses leave for judicial review of Refugee Appeals Tribunal decision on credibility and country of origin information.

Neutral Citation Number: [2011] IEHC 181

THE HIGH COURT

JUDICIAL REVIEW

2008 995 JR

BETWEEN

A.N.L.

APPLICANT

AND

BEN GARVEY ACTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

AND

IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTIES

JUDGMENT of Mr. Justice Herbert delivered the 8th day of April 2011

The applicant, A.N.L. seeks leave of this Court pursuant of the provisions of s. 5(2)(b) of the Illegal Immigrants (Trafficking) Act

2000, to apply for an order of certiorari by way of judicial review that the decision of the respondent made on the 27th June, 2008,

affirming the recommendation of the Refugee Applications Commissioner made on the 19th September, 2007, that the applicant should

not be declared to be a refugee, be delivered up and quashed and, the matter remitted for re-consideration by the respondent. This

subsection provides that such leave shall not be granted by this Court unless it is satisfied that there are substantial grounds for

contending that the decision of the respondent is invalid or ought to be quashed. In Re. Ref. S.S. 5 and 10 Illegal Immigrants

(Trafficking) Bill 1999 [2000] 2 I.R. 360 at 394/5, Keane C.J. adopting the earlier definition by Carroll J. ([1995] 2 I.L.R.M. 125) held

that the Court must be satisfied that reasonable, arguable and weighty grounds and, not just trivial or tenuous grounds have been

shown.

It was submitted on behalf of the applicant that the decision of the respondent, that the applicant lacked personal credibility which

brought into question the legitimacy of her claim to a well-founded fear of persecution in her country of nationality for reasons of

political opinion, (actual and inferred) and membership of a particular social group, to wit, ex-partners of leading political persons who

can abuse power, was made in excess of jurisdiction as based upon speculation, errors of fact, failure to properly consider and weigh

the evidence and selective use of country of origin information. It was submitted on behalf of the respondent and the notice parties

that the decision of to the respondent was intra vires, reasonable, rational and, in accordance with common sense and, that the

applicant had failed to demonstrate reasonable, arguable and weighty grounds to the contrary.

The member of the respondent set out extensively in his decision the reasons why he had concluded that the applicant was not

personally believable. The member of the respondent correctly noted that available country of origin information established that A.M.

is a leading member of the political party now in power in the applicant’s country of nationality and origin. That A.M. is a member of

the Presidential Guard and was a former aide-de-camp to the President. The member of the respondent further correctly found that

the available country of origin information established that S.B. was a leading member of a different political party which had a share

of power prior to July 2006 and was a very senior ranking officer in the armed forces of that country. The member of the respondent

also correctly noted that the available country of origin information recorded that S.B. had died on the 4th July, 2006, and had been

buried without an autopsy being carried out. The court is quite satisfied that each of these findings was made intra vires.

The applicant claims to have had an intimate relationship with A.M. from September 2002 to a date in 2005. She asserts that in

December 2003, she became friendly with S.B. who paid court to her. They became lovers in May 2004 and this had continued up to

the date of his death on the 4th July, 2006. They did not live together, but the applicant states that S.B. enabled her to set up in a

business importing products from Dubai for sale in the city in which they both resided. She had travelled to Dubai on business

between November 2004 and January 2005 and had returned home in February 2005. She had a passport and had obtained a visa for

the purpose of travel to Dubai. The applicant claimed that when she ended her relationship with A.M. he had threatened her.

In his decision the member of the respondent noted that the applicant when asked by the Refugee Appeals Tribunal about the nature

of these threats was unable to elaborate and had simply stated that A.M. was jealous. The member of the respondent further noted

that the applicant had told the Refugee Appeals Tribunal that her relationship with A.M. had ended early in 2005. The member of the

respondent noted that it had been put to her by the Presenting Officer during the course of the oral hearing before the Refugee

Appeals Tribunal, that in the course of her interview conducted in accordance with the provisions of s. 11 of the Refugee Act 1996

(as amended) she had told the interviewing officer that this relationship with A.M. had ended at the end of 2005. The member of the

respondent noted that the applicant had responded that this was an error on the part of the interpreter. The member of the

respondent noted that the applicant was unable to explain why she had not corrected this alleged error when this answer had been

read back to her at the time as she had certified by her signature at the foot of the relevant page of the Record.

The member of the respondent noted that even though the applicant claimed to have been involved in intimate relationships with

these two very powerful men between September 2002 and July 2006, she had offered nothing at all to substantiate this claim, for

example some keepsake or note or photograph. The member of the respondent further noted that when asked at the oral hearing

before the Refugee Appeals Tribunal about the passport on which she claimed to have travelled to Dubai on business the applicant

had stated that it was at her home, but could not be found by the persons who had forwarded her citizenship-nationality documents

to her in Ireland in advance of the oral hearing before the Refugee Appeals Tribunal.

The applicant claims that the acquaintance of her aunt in the city where the applicant had been hiding following her assisted escape

from a Military Detention Centre had, for the sum of US$5,000, provided travel documents which had enabled her to pass through

three different countries and to enter this State. She claims that she returned all these documents together with the travel tickets to

this man. The member of the respondent noted that the applicant had not, as required by s. 11B of the Refugee Act 1996 (as

amended), provided any satisfactory explanation as to why she had not sought asylum in any of the three countries through which

she had travelled before arriving at the borders of this State.

The member of the respondent noted that in the A.S.Y.1 Form for Seeking Asylum, completed by the applicant on the 30th March,

2007, after her arrival in this State on the 23rd March, 2007, the applicant had stated that she was a sympathiser but not a member

of a political party. However, in the course of the s. 11 Interview she claimed that she was a member of a named political party which

she claimed to have joined in 2005. She knew when this political party had been founded and she knew the name of the then current

party leader. The applicant said that she was a “simple member” who supported them and went to party meetings when she was free.

She did not have any party duties and did not have a membership card. This was the political party of which S.B. had been a leading

member.

The applicant claimed that when she told A.M. that S.B. was showing an interest in her, he had urged her to spy on S.B. She had

refused. The applicant stated that she had stopped seeing A.M. because he was already married and she decided that her

relationship with him had no future. She claimed that she had been with S.B. on the night of the 30th June, 2006. She said that he

had been in good health on that night. She claimed that S.B. had told her that things were worsening and they might have to leave

the country after the Presidential Elections which were then pending. The applicant claimed that S.B. had told her not to telephone

him because of serious security concerns. The applicant claimed that on the 4th July, 2006, a bodyguard of S.B. had telephoned her

and told her that he had died. The applicant stated that there was a general belief in her country of nationality that S.B. had been

poisoned prior to the elections. In the course of her s. 11 Interview the applicant stated that she believed that an autopsy was

carried out on S.B. but the results had not been published. The member of the respondent noted that it had been put to the applicant

that country of origin information subsequently obtained stated that S.B. had been buried without an autopsy having been carried

out. The Court notes that at para. 28 of her affidavit grounding this Application, the applicant avers that she gave evidence that she

had been informed that an autopsy was certainly carried out but that the report remained unpublished because of its contents. The

source of this alleged information is neither named nor identified and, the circumstances in which this information was imparted to her

are not revealed.

The applicant claims that the member of the respondent unfairly makes an adverse credibility finding against her because of this one

entry in a country of origin document and had failed to consider the matter in the context of other country of origin information which

indicated that politically motivated assassinations occurred in her county of nationality. This of course is to miss the point at issue

which is whether or not her credibility as a narrator is called into question by this conflict as regards the carrying out of an autopsy

on S.B.

The member of the respondent noted that the applicant had given three different reasons why she believed that A.M. had caused her

to be arrested, as she claims, on the 15th February, 2007, taken to a Military Intelligence Centre and detained there in prison without

access to a lawyer, without her family being notified, without being charged with any offence and, without being brought before a

court. The applicant claimed that an adherent of A.M. with whom she had a good relationship had told her that A.M. was going to

have her arrested. She stated that she believed that A.M. wanted her out of the way in case she talked about his having asked her

to spy on S.B. She felt that he would have her arrested and killed on a charge of spying on the State and leaking information to

rebels. She also said that she felt that A.M. was going to have her killed for refusing his demand that she spy on S.B.

The member of the respondent noted her evidence that she had informed A.M. sometime in 2004 or 2005 that she would not spy on

S.B. yet, by her own account, A.M. had taken no action against her until the 15th February, 2007. The applicant in the seven pages

of handwritten notes which she appended to the Application for Refugee Status Questionnaire, stated that after the death of S.B. on

the 4th July, and the victory of the political party in which A.M. was an important figure in the Presidential Elections, she felt that

A.M. would have her arrested and killed but that as nothing happened she had relaxed. The member of the respondent took into

consideration in assessing the applicant’s story, what he considered was the ample opportunity which A.M. had between 2005 and

February 2007 to have the applicant arrested or killed. The member of the respondent considered that it was improbable that A.M.

would reasonably regard her as a risk: she had refused his demand that she spy on S.B. and she told the Refugee Appeals Tribunal

that if she had complained to the police, they would have gone immediately to A.M. and sought his advice as to how to act. The

member of the respondent considered that if the applicant was arrested and accused of spying for rebels, the very thing which she

claimed A.M. was anxious to conceal would probably emerge.

The applicant claimed that she was assisted to escape from the military prison by a high ranking prison officer in return for sexual

favours and a payment of US$3,000. By means of a letter written by her and smuggled by this officer to her aunt she had arranged

for this sum of US$3,000 to be paid to this officer by or through her aunt who for some undisclosed reason was holding all the

applicant’s money for her. The applicant claimed that this officer had arranged for her to be smuggled out of the prison and brought

into the bush in a car. She was allowed to go free and had eventually reached another city. In assessing this account of her alleged

escape from the prison the member of the respondent considered whether, having regard to the fact that as the applicant claimed

she had been arrested on the orders of A.M. a person of great power and status and, if as she alleged she was being held, accused

of spying and of assisting rebels, it was likely that any prison official regardless of his rank would risk his career and even possibly his

life by assisting the applicant to escape in return for this payment and sexual favours.

The member of the respondent noted that that the applicant told the Refugee Appeals Tribunal that the agent who had arranged her

travel had told her that she was being brought to Europe. In her handwritten notes annexed to the Questionnaire, the applicant wrote

that two days before departure, this agent had told her that her destination was Ireland and Dublin in particular. At para. 27 of her

affidavit grounding this application the applicant accepts what she had stated in these handwritten notes, but alleges that she:-

“Gave specific evidence that [she] did not know that it was in Ireland that [she] would claim asylum . . . [she] gave

evidence that [she] expected that [she] would claim asylum in France or Belgium.”

It was submitted on behalf of the applicant that the member of the respondent made a number of errors of fact in the course of his

decision which taken together undermined the accuracy and credibility of that decision. Four such errors were identified. The member

of the respondent employed a single incorrect letter in the acronym for the full title of the political party of which A.M. was a leading

member. The member of the respondent incorrectly stated the date of death of S.B. as 24th July, 2006 when the correct date was

4th July, 2006. The member of the respondent did not correctly record the positions held by A.M. and S.B. in their respective political

party organisations. The member of the respondent did not acknowledge the applicant’s extensive knowledge of political parties,

political events and the identity of influential politicians in her country of nationality.

I am satisfied that no substantial grounds have been shown for contending that these errors of fact either individually or collectively

undermine the decision of the member of the respondent. Two appeared to me to be mere typographical errors. It is clear beyond

question that the member of the respondent in his decision, when it is read as a whole fully accepts the immense prestige coupled

with either influence or authority enjoyed by both A.M. and S.B. in that country. In such circumstances I am satisfied that no

detriment was suffered by the applicant by reason of any alleged failure on the part of the member of the respondent to exactly

identify and record the actual positions held by A.M. and S.B. within their respective party political organisations. The applicant

claimed, - despite an earlier denial, - that she had joined the political party of which S.B. was an important member in June 2005,

even though she did not have a membership card. She claimed that she was an “ordinary member” who attended meetings of the

party when she could, but had no actual party duties. Knowledge of any of the matters referred to in the submission on her behalf

would not in my view confirm the applicant as a member of that or of any other political party or cause her to be considered a party

member or a party political activist so as to support her claim that she had a well-founded fear of persecution by reason of political

opinion. In any event the conclusion of the member of the respondent was based upon the applicant’s conflicting statements

regarding her membership of a political party and not on anything else.

I do not find that the applicant has shown substantial grounds for contending that the decision of the member of the respondent was

based on speculation and selective use of country of origin information. The only example of the latter identified by the applicant

relates to the apparent contradiction by country of origin information of the applicant’s assertion that an autopsy had been carried

out on S.B. but that the autopsy report was being withheld because of what it contained. This country of origin document is one of

at least two documents which referred to the mysterious death of S.B. The document is dated the 13th March, 2007 and appears to

be an extract from, the first edition of a large book or report dealing with barriers to a lasting piece in the applicant’s country of

nationality. The passage (redacted) is in the following terms:-

“Things took a major turn in early July. On the night of July 4th . . . S.B. was admitted to [a] Clinic with acute symptoms

of illness. S.B. was 35 – years-old with no known chronic illnesses. Doctors who monitored him said that there were no

problems with his blood pressure or his cardiac status. He died mysteriously later that night and was quietly buried

without an autopsy. The public was not notified until two days after his death. . . . Less than two months earlier [another

senior military officer] was rushed to a hospital in Europe with similar symptoms to S.B. Almost immediately, rumours

spread that they were both poisoned . . . .”

Other reliable country of origin information before the member of the respondent with dates in 2005, 2006 and 2007 deal with arbitrary

arrests, detentions, serious abuse and torture of individuals suspected of holding certain political affiliations by the police, security

services and the military and of arbitrary and unlawful deprivation of life regardless of rank or status. In a UNHCR country of origin

report dated the 28th - 29th June, 2002, it is stated that one can bribe one’s way out of detention centres and prisons but that the

possibility of so doing in many cases depended on the question of security risks. “For a high category prisoner it may be lot more

difficult to buy his way out of prison”. The report concludes that generally speaking it is possible to bribe one’s way out of custody

including in some cases, military custody. The report noted that it was possible to escape from a military detention centre after a riot

or a fight with the guards or by having friends who were highly placed within the ministry and who might help a prisoner to escape.

All of this country of origin information was before the member of the respondent and I find that the applicant has not advanced

substantial grounds for claiming that despite the assertion to the contrary in his decision, the member of the respondent failed to

have regard to this information or had only selective or insufficient regard to it. As part of her story the applicant had claimed that an

autopsy had been carried out on S.B. The author of this book or report dated the 13th February, 2007, and therefore published before

the applicant had arrived in this State, states the contrary. The member of the respondent did no more than take this into

consideration as part of the process of determining whether the applicant was to be considered personally credible: an essential task

where her story is not supported by any form of supporting material either physical or documentary. In my judgment the member of

the respondent was entitled to have regard to this matter in the proper discharge of the function vested in him by the Legislature of

analysing the material, finding facts, drawing inferences and determining what weight, if any, to give to the various strands of the

applicant’s narrative. It is expressly provided by s. 11A(3) of the Refugee Act 1996 (as amended), that on an appeal from a

recommendation of the Refugee Applications Commissioner to the Refugee Appeals Tribunal it is for the applicant to show that he or

she is a refugee.

I am satisfied that the applicant has not shown substantial grounds for contending that all or any of the several reasons advanced by

the member of the respondent for concluding that the applicant was not personally believable amounted to no more than mere

speculation on his part.

It has been judicially noticed that “speculation” is a word of very indefinite meaning. However, it seems clear that what the applicant

means by it in the present case is that the member of the respondent formed a theory or arrived at a conclusion on mere conjecture.

The only material before the member of the respondent in the instant case was the applicant’s own account of events and certain

country of origin information. In deciding whether it is possible that a particular event might have occurred, or an alleged person might

have held a particular belief, or an alleged situation might have existed, or an alleged person might have acted in a particular way, the

member of the respondent as the trier of fact, guided by the provisions of s. 11 of the Refugee Act 1996 (as amended), Regulation 5

of the European Communities (Eligibility for Protection) Regulations 2006 and, Part II of the U.N.H.C.R. Handbook on Procedures and

Criteria for Determining Refugee Status, had to rely on his own knowledge and life experience and the application of ordinary common

sense to guide him in deciding what conclusions were or were not justified on the material before him. This is an essential part of the

task allocated by the Legislature to the member of the respondent (See M.E. v. Refugee Appeals Tribunal and Others [2008] I.E.H.C.

192, per. Birmingham J. citing Da Silveria v. Refugee Appeals Tribunal [2004] I.E.H.C. 436 per. Peart J.). The member of respondent, in

the instant case also averted to a number of aspects of the applicant’s account, which I have already set out in this judgment, which

he considered relevant to assessing her credibility and, which he considered to be extraordinary and inherently improbable. I am quite

satisfied that this was not speculation on the part of the member of the respondent. I adopt, as relevant in the instant case also the

following statement by Birmingham J. in M.E. v Refugee Appeals Tribunal and Others (above cited):-

“I am forced to conclude that in complaining that the decision was based on conjecture, what the applicant is really

saying is that the Tribunal Member should not have reached the view that she did. While the Tribunal Member may have

arrived at conclusions that are unwelcome to the applicant, this is not a court of appeal. In the light of the foregoing, I

am satisfied that the conclusions reached by the Tribunal Member were ones which were open to her, and in the

circumstances I am bound to refuse leave.”

I am not satisfied that the applicant has shown substantial grounds for contending that the member of the respondent failed properly

to consider or to weigh the evidence by failing to address the applicant’s evidence in the context of the country of origin information

available to him. It is claimed that the applicant’s story is entirely consistent with this country of origin information. I am satisfied that

there is compelling evidence on the face of the decision of the member of the respondent that he did have proper regard to the

country of origin information in reaching his conclusion with regard to the personal credibility of the applicant. In his decision the

member of the respondent expressly refers to the provisions of s. 16(16)(d) and (e) of the Refugee Act 1996 (as amended) and the

provisions of Regulation 5(1) of the European Communities (Eligibility for Protection) Regulations 2006. In the course of his decision

the member of the respondent accepts the necessity to examine the credibility of the applicant’s account both subjectively and, if

necessary, objectively having regard to country of origin information. The member of the respondent expressly notes that some

statements made by the applicant with respect to A.M. and S.B. “are reflected in the country of origin [information] and are therefore

in the common domain”. The member of the respondent in his decision expressly states that, “the Tribunal has taken into account the

individual facts in the instant Appeal and in addition the most up to date country of origin information relevant thereto, as it is

required to”. In stating his conclusions the member of the respondent expressly states that, “the Tribunal has considered all relevant

documents in connection with this appeal including, . . . country of origin information . . .”. In addition, most of the “problematic

inconsistencies” identified by the member of the respondent in his decision as undermining the credibility of the applicant and thus,

the “legitimacy of her claim”, are matters entirely independent of, or very little influenced by country of origin issues.

The member of the respondent correctly found that it was the cumulative effect of the inconsistencies identified by him in his

decision which rendered the applicant unreliable as a narrator. I am satisfied that it was reasonably and rationally open to the member

of the respondent to reach the conclusion which he did as to the applicant’s lack of credibility and that he did so in the correct

manner (See Imafu v. Minister for Justice, Equality and Law Reform [2005] I.E.H.C. 182, Kikumbi v. Refugee Applications

Commissioner [2007] I.E.H.C. 11 and, I.R. v. Minister for Justice, Equality and Law Reform [2009] I.E.H.C. 353). In these

circumstances it would be a pointless and totally meaningless exercise for the member of the respondent to have gone on to consider

whether the applicant’s story generally could possibly be true having regard to the available country of origin information.

The court will therefore refuse leave to seek judicial review.