High Court allows time extension but dismisses judicial review on asylum credibility findings.

Neutral Citation Number: [2009] IEHC 60

THE HIGH COURT

JUDICIAL REVIEW

2006 486 JR

BETWEEN

O. A. AND R. A.

APPLICANTS

AND

THE REFUGEE APPEALS TRIBUNAL, MINISTER FOR JUSTICE, EQUALITY & LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

JUDGMENT of Ms. Justice Clark, delivered on the 4th day of February, 2009.

1. The applicants, who are mother and infant son, are failed asylum seekers and seek leave to apply for judicial review by

way of certiorari of the decision of the Refugee Appeals Tribunal (RAT), dated 28th March, 2006, and received on the 3rd

April, 2006, affirming the recommendation of the Office of the Refugee Applications Commissioner (ORAC) not to grant a

declaration of refugee status to the applicants.

2. The notice of motion seeking leave to bring judicial review proceedings is dated the 26th April, 2006 and is eleven days

out of time. The application for certiorari is based on an alleged error of law in that the decision-maker made

unsustainable findings based on errors of fact and in failing to consider all the evidence called when coming to an adverse

credibility finding. The applicant was originally represented by the Refugee Legal Service (RLS) and is now represented by

a firm of private solicitors. It was established at the commencement of the case that the applicant, O. A., was bringing

this application on her own behalf and on behalf of her infant son, R. A., who was born in Ireland on the 21st October,

2005. I am satisfied that the short delay in bringing the proceedings has been adequately explained and I allow the

extension of time necessary to bring this leave application.

Background to this application

3. The applicant says that she fled Nigeria in fear of political persecution by reason of her husband’s political beliefs and

that she would remain in fear were she to return. She was born on the 3rd March, 1979, and is now 29 years old. She

speaks English fluently and has had an extensive education. She was married in 2005 and is a native of Ogun State in

Nigeria. Her husband is a political activist and an elected representative of the ruling party. She herself has never been

involved in politics. Her husband was kidnapped from their flat one evening in April, 2005, but she was unharmed. For her

own safety she moved an hour from her home into a safe house provided by security vigilantes from her street. While

there, her husband telephoned her to say that the people who had kidnapped him were dangerous and she should keep

away from the family home lest she be harmed by these people. She nevertheless left the secure house to return to her

flat but while she was there she was forced to flee out a back window when people called to her door and refused to

identify themselves when asked. She then went to her parents’ home in a village which was two hours from her flat and

remained there for six weeks. She left her parents’ village because she had become ill as the water quality was bad and

she was pregnant.

4. When she was returning to her family home she was approached by two men in the street who told her they knew

where she lived and that she had 24 hours to produce her husband or she would be in trouble. She then went to a friend

of her husband, who is a Member of Parliament, who with other friends made arrangements for her to leave Nigeria

immediately. She arrived in Ireland on the 15th September, 2005, when she applied for refugee status. She travelled

through London and Dublin airports without a passport and applied for asylum at the Refugee Application Centre and not

at the airport. Her son was born five weeks after her arrival in the State.

5. At both stages of her asylum application she was found lacking in credibility and several discrepancies in her narrative

were highlighted. The story presented was a relatively simple one stretching over a short, five month period. It was

recounted first in her questionnaire and then in her interview with ORAC. The two accounts were found to be in conflict in

material details which were raised at the interview and outlined at length in the s. 13 (1) report. The s. 13(1) report

provides several other reasons for why the ORAC interviewer did not consider the applicant a refugee within the definition

set out in s. 2 of the Refugee Act 1996.

6. The subsequent negative findings in the section 13(1) report were rejected in lengthy submissions made on the

applicant’s behalf in her Notice of Appeal. In particular the findings that the applicant was not targeted by anyone while

living in the safe house in the village or while at her parents were criticised and the discrepancies which were identified in

the s. 13(1) report were corrected or explained. At her appeal hearing, the applicant was further questioned in respect of

the ORAC findings and the appeal submissions. Again the details of the five month period following the alleged kidnapping

varied and the applicant was found to be vague. She now invites the Court to hold that the findings made by the RAT

were factually wrong, based on conjecture and not supported by the facts.

7. As the variations in the key details of the applicant’s story became material to findings of credibility, it is important to

view the various versions of the history which precipitated the applicant from a position of the pregnant wife of a member

of the ruling party in Nigeria to a failed asylum seeker. The key issues on discrepancy appear to be (a) where she spent

the immediate period following the alleged kidnapping, (b) how long she spent there and (c) whether she had contact with

her husband following his kidnapping. There are other credibility issues which do not concern discrepancies in the detail of

the applicant’s narrative and I will return to those later.

8. The correct approach which a Court must take in reviewing a decision is to look at the decision as a whole rather than

at isolated findings unless it can be shown that materially incorrect findings were the basis of a negative credibility

assessment. I have therefore scrutinised all the material furnished including the agreed note of the RAT hearing.

The questionnaire

9. In her application form the applicant described the kidnapping and the period thereafter. She said that that she

contacted the street security the next day but

“for two months I see that they cannot still say precisely or found out where my husband has been taken to. One

day after my husband has been kidnap for about 3 months I heard a call from him and he told me what he has

passed through and how he got escape from them. He also told me how dangerous they are and if they find him

they will kill him.”

10. She then described how she was in her flat when she heard knocking at the door by people who would not identify

themselves. She escaped through a back window and went to security men again. Seeing that her life was not safe she

ran to a village in Ago-Iwoye about two hours away where she stayed for 6 weeks. She had problems with the lack of

light, good food or good water and returned to her village where she was threatened by two men. There is neither

mention of a safe house in this form nor any suggestion that she left the flat where she lived prior to her husband’s

abduction.

The ORAC interview

11. At her interview with ORAC she said that after the abduction she stayed with the vigilantes for three weeks but as

they did not do anything she went back to her flat where she heard knocking at the door and when they did not identify

who they were she escaped through the window and went to Mamu where she stayed for six weeks. She left and was

returning to her own home where on the way she was threatened by the two men so she went to her husband’s friends

who arranged her travel to Ireland. She said that she had no contact with her husband after he was kidnapped.

12. She was asked to explain the discrepancy between the period of her husband’s kidnap and her flight from Lagos if she

spent three weeks with the vigilantes and 6 weeks in the village which would bring her only to June. She then said that

she spent 3 months with the vigilantes and not 3 weeks. When asked if she sought the assistance of the police at any

point she answered no and the reason was that she did not think they could do anything and some of them are corrupt in

Nigeria. Neither she nor her husband had any problems with politics or the police previously.

13. She confirmed that her only problem at her parents’ village was with the water which was bad and that made her ill.

When asked about her travel arrangements, she said that she had stayed one hour in London before coming to Ireland.

She did not have a passport and merely followed the man who she did not know. Her husband’s friend had shown him to

her. She didn’t know how much the journey cost as her husband’s friend had paid for it.

14. There were variations between her answers in the questionnaire relating to contact with her husband and her

responses at interview. In her questionnaire she said that she had been contacted by her husband three months after he

was kidnapped when he told her he had escaped, but at interview said that she had had no contact with him. When

questioned specifically about this discrepancy she explained that she meant since she was in Ireland. She then said that

the last contact she had had with her husband was early August in Nigeria. When asked why he did not travel with her to

Ireland, she answered that “perhaps he had been kidnapped again.” Thus there were discrepancies in the two

descriptions of where she spent the period following her husband’s abduction and when and if she had contact with him.

The section 13 (1) report

15. The applicant failed in her claim for asylum. The negative recommendation covered her dependent, R.A., who was

born in the State on the 21st October, 2005. The Commissioner furnished a detailed report as to why the applicant was

not considered to be a refugee and identified certain credibility issues surrounding her testimony. The factual findings

were:-

• The applicant is not a member of any political party in Nigeria;

• She was never harmed in Nigeria because of her husband’s political activities and was not harmed when he was

kidnapped.

• She remained in her village for three months after her husband was allegedly kidnapped and was not targeted

during that period;

• When she went back to her home after three months, she heard a knock, asked who was there and they didn’t

answer. As a result she escaped out the back window. While there was no objective evidence to suggest that the

people who knocked at the door were her husband’s political opponents and if they were, it is reasonable to expect

them to have had someone guarding the back of the house to prevent the applicant escaping in the manner she

described;

• There was a discrepancy in her testimony in relation to whether she had contact with her husband after he was

kidnapped. At the interview she said she had no contact with her husband after he had been kidnapped, whereas in

her questionnaire she said that he had contacted her three months afterwards. This discrepancy was put to the

applicant and she explained that she meant he had not contacted her since she was in Ireland.

• The discrepancy between her interview and her application form relating to the length of time she stayed with the

vigilantes was fully described

• If the applicant was being targeted by her husband’s political opponents in Nigeria, internal re-location was an

option and the U.K. Home Office Report was quoted.

• She stayed for six weeks in Mamu village without any contact from her husband’s opponents. She left because

the water was bad.

• She said she did not stay in Lagos because she didn’t know anyone there. This was considered an unreasonable

explanation considering her level of education.

• She did not contact the local police at all. She should have tried to contact the police before she could validly

assert they could not help her particularly as her husband was allegedly a member of the ruling party.

• Her travel arrangements without a passport were deemed unlikely given the security procedures currently in place

in international airports.

13. The basic finding was that a well founded fear was not established due to lack of credibility and also because she

could return to Nigeria without a fear of persecution for any of the Convention reasons.

The appeal

14. The applicant was legally represented when she appealed the ORAC decision to the RAT. The facts relied on were

essentially those presented to ORAC. The appeal submissions specifically pointed out a number of alleged factual mistakes

in the s. 13(1) Report. The Notice of Appeal states that the applicant did not live in the village but that on the night that

her husband was kidnapped she stayed in a neighbour’s house and the following day she reported the incident to a

vigilante group and was taken to a safe house in another area of Ogun State. She travelled for approximately one hour to

the house and remained there for three months. It was asserted that the findings that she was not targeted were based

on incorrect findings of fact. It was submitted that the finding in relation to contact with her husband had been explained

at interview and that this was a reasonable explanation. Similarly, in respect of the time that she spent with the vigilante

group, she explained that it was not three weeks but three months. The other points of appeal considered the law on

internal re-location and pointed out that country of origin information confirms the applicant’s assertions that many

members of the ruling PDP or individuals with ties to the Party were victims of recent killings and targeting.

15. It was argued that country of origin information confirms that Nigerian police forces are frequently corrupt and

confirms torture and extrajudicial killings by the police and that the police were either unable or unwilling to provide

meaningful protection. In relation to the s. 11B findings, the applicant asserted that there was nothing inherently

implausible about the story that she had been brought here on false documents provided by and carried by the trafficker

and that her account of travel was a true and accurate account. Most of the other grounds related to submissions made

on credibility issues. A document was filed with the Notice of Appeal dealing with errors of recall and credibility to the

effect that while omissions and discrepancies in successive statements can reasonably be said to undermine credibility of

testimony, current research on memory shows that stories can change for many reasons and the changes do not

necessarily indicate that the narrator is lying.

16. The applicant was represented by counsel at the appeal hearing and there is an agreed note of the hearing which

formed part of the bundle of documents furnished to this Court. At the hearing, the applicant described the incident which

occurred in April, 2005, as commencing with a knock on the door when she was at home with her husband. When she

came out, her husband was gone; she ran to a neighbour who said that she should not go back to her home and she slept

at that house overnight. The next day she went to the private security company who patrolled the street but they didn’t

help her. She did not go to the police as she did not think they could do anything because most of them are corrupt. She

went to Ago-Iwoye where she stayed for three months in Sagamu which is about one hour from her home address. She

was kept by the security people in a room where she could not go out and could not do anything so she decided to leave.

After three months, her husband called her. He tried to explain to her that the men who kidnapped him were dangerous

men and she should not stay in their house again. This contact was by mobile phone while she was still in Sagamu. She

then went to Mamu which is two hours from Sagamu. Both Mamu and Sagamu are in Ogun State. In Mamu she stayed

with her parents for six weeks but she had no further contact with her husband as there is no light and no phone there.

She had problems with the quality of the river water so she left and went back to the apartment to see if things had

calmed down. She said thugs could find her in Mamu. She met two men close to her home who said “if you don’t produce

your husband within twenty four hours, then you are in trouble”. They knew who she was and she thinks they knew

where she lived. She then went straight to her husband’s friend’s house. She told him everything. They called some other

friends of her husband. She stayed the night with this friend and then left Nigeria. She presented documents to the

Tribunal which were sent to her by e-mail from her husband’s named friend, Mr. Rasaq. These documents referred to

attacks on party candidates during elections. When asked if she was in contact with her parents she replied:-

“They are in the village and there is no phone. I call my Dad’s cousin. He phoned me three weeks ago and he told

me that some people came to the village to look for me. They beat my Dad and then they rushed my Dad to the

hospital and three weeks ago they tell me that my Dad is dead”.

17. Strangely enough the next question asked by her own counsel was not a follow up question on this new information

but “what do you think would happen to you if you were sent back to Nigeria?” The answer was “I think they can harm

me.” She was then asked about her passport and said that she had no travel documents, she merely followed the man

who was looking after her and when she arrived at Immigration nobody asked her for her passport.

18. When asked by the presenting officer about her education the applicant said she had a diploma in accounting

following a two year course in a polytechnic but when asked how old she was when she left secondary school in 1997 she

hesitated for a long time and counted on her fingers before answering “20 or 21”.

19. The various versions of the events which are relied upon for the two negative decisions and the current application

for leave to seek certiorari are extensively detailed as the detail of the decision forms the substance of the grounds relied

upon for certiorari.

20. The appeal was unsuccessful and the RAT confirmed the view that the applicant and her infant son were not refugees

within the meaning of section 2 of the Refugee Act 1996. The applicant was found to be vague, hesitant and

unconvincing in a number of aspects of her narrative in relation to her conversation with her husband three months after

his kidnap and her claim that thugs on her street who asked her to produce her husband was sufficient for her husband’s

friends to organise her departure, even though she was eight months pregnant.

21. It was found that she lived in relative safety for approximately three months in the village called Sagamu where the

vigilante/private security force had helped to re-locate her. It was found reasonable to suppose that on the occasion

when she returned to her flat, if the people at the door were intent on doing her harm they would have had somebody

guarding the back of her home to prevent her escape. Her application and account were found to be non-credible for four

stated reasons:-

(1) She never sought State protection even though her husband was a member of the party in power;

(2) There was conflicting evidence concerning where she spent the months following her husband’s kidnapping. She

told the RAT that she lived in safety and was not targeted during this period. Similarly when she went to Mamu she

suffered no persecution and left because of the quality of the water;

(3) If her husband’s political opponents were intent on targeting her, they could have done so between April and

September; and

(4) Her travel arrangements, her lack of documentation and her apparent ease in coming through international

airports were not plausible.

The Submissions

22. The various versions of the events which are relied upon for the two negative decisions are extensively detailed as

the applicant complains that:

a. No reasons were given for the finding that she was vague, hesitant or unconvincing

b. Errors of fact were made by the Tribunal Member in finding that she had not left her own village when she was in

hiding with the vigilante group;

c. That the finding that the men who came to the door if intent on doing her harm would have had someone

guarding the rear was merely conjecture and an insufficient basis for a decision on appeal;

d. That country of origin information confirms that police are often corrupt which would explain why she did not

report her husband’s abduction to them; and

e. That no consideration was given to the new event which had occurred since the ORAC hearing and that was that

her father had been beaten up by people looking for her and that he had died.

23. In order for the applicant to succeed, she must establish that the assessment of the credibility by the Tribunal

Member was based on a significant error of fact which produced the adverse result to the applicant. It is well accepted

that conclusions must be based on correct findings of fact and that errors of fact can cast doubt on the integrity of the

decision-making process. However the reverse is also true and where the decision is grounded on an assessment of

credibility based on demeanour and the presentation of shifting detail in a relatively simple narrative, it is highly likely that

the finding will not be disturbed.

24. In this particular case, the discrepancies in the applicant’s questionnaire and interview were very clearly brought to

the attention of the applicant at interview and detailed in the s. 13(1) report. The same issues were rehearsed in the

Notice of Appeal so that the minutiae of the applicant’s story were parsed, taken apart and reassembled at the appeal as

they were again at the hearing of the within application. I can find no error of fact as asserted in the applicant’s grounds.

The finding was that she spent three months in Sagamu and six weeks in Mamu which accords with the details of the

applicant’s appeal submissions. It is noted that the applicant never actually identified her village giving her address as

either “Awolow House” or “Awolow Street” or “Awolow, Hospital Road, Ogun State”. At the end of the day, the core

finding of the Tribunal Member is that the detail of the applicant’s story did not stand examination for four specified

reasons – that she never sought State protection, that she was unharmed while in Sagamu and Mamu, that if her

husband’s political opponents were intent on harming her they could have done so in the two locations where she spent

the time after her husband’s abduction, and very importantly that her travel arrangements were found not credible.

25. As was pointed out by Mr. Patrick McGrath B.L., counsel for the respondents, s. 11B of the Act of 1996, as amended,

provides:-

“The Commissioner or the Tribunal, as the case may be, in assessing the credibility of an applicant for the purposes

of the investigation of his or her application or the determination of an appeal in respect of his or her application,

shall have regard to the following:

(a) whether the applicant possesses identity documents and, if not, whether he or she has provided a

reasonable explanation for the absence of such documents; […]

(c) Whether the applicant has provided a full and true explanation as to how he or she travelled to and

arrived in the State.

26. The fact that the RAT decision did not refer to the new allegation that her father was beaten up and had died is not

extraordinary in the context in which it was presented at the hearing and then ignored by her counsel to whom it may

well have come as a surprise. The RAT decision gives reasons for why the applicant was found vague, hesitant and

unconvincing in relation to her husband’s phone call and requires no further comment from me. The other findings were

based on what has every appearance of a rational and evidence-based determination and do not involve conjecture. The

applicant has not made out any arguable grounds of a substantial nature sufficient for leave to bring judicial review. The

application fails.