Leave to judicial review refused where applicant's refugee claim failed on credibility grounds regarding conversion to Christianity.

Neutral Citation Number: [2009] IEHC 82

THE HIGH COURT

JUDICIAL REVIEW

2007 1294 JR

BETWEEN

O. A. O.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY, LAW REFORM AND

THE REFUGEE APPEALS TRIBUNAL (MICHELLE O’GORMAN)

RESPONDENTS

JUDGMENT OF MS. JUSTICE M. H. CLARK, delivered on the 13th day of February, 2009.

1. The applicant is seeking leave to apply for judicial review of the decision of the Refugee Appeals Tribunal (RAT), dated

the 21st August, 2007, to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner

(ORAC) that she should not be declared a refugee. Mr. Ian Whelan B.L. appeared for the applicant and Ms. Sinéad

McGrath B.L. appeared for the respondents. The hearing took place at King’s Inns in Court 1 on the 5th February, 2009.

Factual Background

2. The applicant is a national of Nigeria of Yoruba ethnicity. Her account of events is as follows: she was born in 1976

and grew up in Lagos State. She was an only child and was raised in a strict Muslim family. She has had thirteen years of

education, having attending primary and secondary school from 1982 to 1994 and having commenced study for a

marketing qualification at a Federal Polytechnic in 2005. Between 1994 and 2005 she worked at her mother’s clothes

shop. She says she attended the Mosque until 2004.

3. The applicant says her problems began when she converted to Christianity in January, 2005, after a friend convinced

her to attend church. Her parents were angry when her father found her reading the Bible and she told them of her

conversion. Some months later she met a Christian man at her church and entered into a relationship with him. She says

she saw him weekly, mostly at church. Her parents did not approve of the relationship but she says they could not

prevent it.

4. In September, 2005, she moved into student accommodation in Ilara, an hour from her parents’ house, and began to

study marketing. From then on, she returned home once a month and her parents also visited her in Ilara. She only saw

her boyfriend when she went home. In July, 2006, she became pregnant by him. When she told her parents her father told

her she would not marry a Christian and demanded that she have an abortion. He then told her that a 60-year old Muslim

Imam, who already had three wives, had paid a dowry to the applicant’s parents in respect of his envisaged marriage to

her. The applicant became very angry with her parents.

5. The applicant’s mother died of a heart attack on the 2nd September, 2006. Two days later the applicant and her

boyfriend went to Ibadan to stay with a friend of his. On the 20th September, 2006, her father tracked her down with the

help of police officers. The applicant’s boyfriend was arrested by the police on charges of kidnapping; she has not seen

him since. She says she was forced to return to her father’s house but locked herself in her room and refused to have an

abortion or to go through with the arranged marriage to the Imam.

6. Two months after his arrest the applicant received a phone-call from her boyfriend’s friend, who told her the police had

released her boyfriend. She says he ran away after being released and she does not know his whereabouts. On the 3rd

December, 2006, she received another phone-call from that friend, telling her to meet him at a bus stop five minutes from

her house. She went to the bus stop and was met there by the friend and an agent. The friend paid for the agent to

accompany the applicant by plane from Nigeria to Ireland via Paris; she does not know how much he paid or any further

details about the agent and she did not know if the same plane from Nigeria to Paris continued from Paris to Ireland. She

says the agent gave her a red passport which did not have her photo on it. It bore a French name but she could not

remember if it had a visa in it. She gave it back to her agent after coming through immigration. The agent answered

questions when they were asked.

Procedural Background

7. The applicant was six months pregnant upon arrival in the State. She made an application for asylum on the 4th

December, 2006. She filled in an ORAC questionnaire in which she claimed to fear persecution on the basis of her religion.

She stated that she fears being forced to marry a Muslim Imam and that she and her baby would be at risk of being killed

by her father who believes in honour killings, or by the Muslim Imam who is influential.

8. On the 4th April, 2007 she gave birth to a daughter. She indicated to ORAC that she wanted her daughter to be

included under her application for asylum. Her s. 11 interview took place on the 17th May, 2007. She did not submit any

travel or identification documents and said this was because her journey was unplanned and her agent took all of her

travel documents. When it was put to her that as an educated woman she surely would know whether she took the same

plane from Nigeria to France and on to Ireland, she replied “I don’t know if it was the same plane.” It was noted that

when asked how often she saw her boyfriend the applicant was very vague. It was put to her that COI indicates that it

would be very unusual for a Muslim arranged marriage to occur at the age of 29; she said she didn’t known when they

started arranging the marriage and that in Nigeria “they wait for the right person”.

9. The applicant told the interviewer that, although the Imam was her father’s close friend and had visited their home

while she was pregnant, he did not find out she had converted to Christianity, that she was in a relationship with a

Christian man, or that she was pregnant. When it was put to her that neighbours talk and that communication in Nigeria is

very effective, she had said the Imam was a well connected man and knew influential people in town but not her

neighbours. When the interviewer said she found it hard to believe the applicant was afraid the Imam would find her

elsewhere in Nigeria if he was unable to find out such basic information, the applicant pointed out that someone told her

father where she was in Ibadan.

10. The applicant was also asked why her father had not forced her to have an abortion when she was at his house

between August and December, 2006. She said she locked herself in her room for most of the time but was able to come

out to eat. She didn’t know why her father didn’t break the door down even though he abducted her from Ibadan or why

he hadn’t killed her even though he had ample opportunity to do so, and she said she didn’t know what he had planned.

11. In the s. 13 report compiled on the 22nd May, 2007, it was recommended that the applicant and her daughter should

not be granted declarations of refugee status. A number of negative credibility findings were made with respect to the

following aspects of the applicant’s claim:-

- That the Imam would not have found out about her circumstances;

- That the applicant would not have informed the police that the charge of abduction levied against her boyfriend

was a mistake as she had gone willingly with him to Ibadan;

- That her father had ample time to force her to have an abortion if that was his aim, that she was able to lock

herself in her room and emerge for food when she needed it, and that her father had not broken the door down;

- That the Imam would not have insisted on a definite marriage plan before paying a dowry; and

- That the applicant said she travelled through France on her way to Ireland but did not claim asylum there. It was

found that s. 11B (b) of the Refugee Act 1996, as amended, was particularly relevant in the circumstances.

12. Four pieces of country of origin information (COI) were appended to the s. 13 report, namely a report from the

Women’s International Health Coalition (WIHC) entitled Nigeria – The Context: A Brief Overview of Nigeria of 2004, a list

of Nigerian women’s rights organisations and information taken from a web-page about BAOBAB, and two excerpts from a

U.K. Home Office Report of 2006 (the second referencing a British-Danish FFM report). These four documents comprise

the only COI that was before the Tribunal Member at the appeal stage: no additional documentation or COI was attached

to the Form 1 Notice of Appeal and covering letter submitted, and nothing further was submitted at the appeal hearing.

13. An oral appeal hearing took place at which the applicant was legally represented. No attendance note of the hearing

is before the Court; the Court is therefore reliant on the summary contained in the Tribunal Member’s decision. This

summary indicates that no documents were submitted and no submissions were made by or on behalf of the applicant at

the hearing. A negative decision issued from the RAT on the 21st August, 2007. It is that decision that is challenged in

the within proceedings.

The Impugned Decision

14. The RAT decision first sets out the applicant’s claim and recorded the evidence given by the applicant and the

questions asked of her at her appeal hearing. It next addresses various legal principles and provisions, and it then turns to

assess the applicant’s claim. In the analysis section, the Tribunal Member found that “credibility issues arise which

undermine the Applicant’s account”. She went on to address:-

(1) The applicant’s knowledge of the Muslim faith;

(2) The period between her boyfriend’s arrest and her departure; and

(3) The applicant’s travel to Ireland.

15. On the applicant’s faith, the Tribunal Member found that the applicant’s knowledge of the Muslim faith was “very

vague” and that when she was asked in any detail about the faith she was “generally very hesitant”. In particular, the

Tribunal Member noted that that the applicant had named only four of five pillars of Islam, was unable to name the five

daily Muslim prayers, was unaware that Bilal is one of Mohammed’s companions, incorrectly stated that Ileya is the first

month of the Islamic calendar, was unaware of the name of the festival that starts on the first day of that month, and

incorrectly stated that Ramadan sometimes occurs on the fourth month of the Muslim calendar. She concluded that:-

“Considering the Applicant’s age, education […] and the fact that she lived with Muslim parents and attended a

Mosque until 2004, it is difficult to believe that she would not have a more comprehensive knowledge of the Muslim

faith. The Applicant’s hesitancy and lack of knowledge when questioned on the Muslim faith undermines her

credibility.”

16. On the subject of the events between the arrest of the applicant’s boyfriend and her departure for Ireland, the

Tribunal Member noted as follows:-

“The applicant states that her father demanded that she have an abortion. The Applicant remained in her home

from September 2006 to December 2006 when she left for Ireland. The Applicant locked herself in her room to

avoid her father. She was able to receive phone calls from her partner’s friend and get food. The Applicant’s father

did not force the door or insist she have an abortion during this time, considering the Applicant states he chased

her to Ibadan with police officers.”

17. On the subject of travel, the Tribunal Member noted that the applicant says she travelled on a red passport but did

not know if it contained a visa, did not know the nationality of the passport, and was not told where she was going. She

was told that if questioned, she was to tell immigration officials that she was “going visiting”. The Tribunal Member drew a

negative credibility finding in that regard, and then stated that he found that s. 11B (c) of the Refugee Act 1996, as

amended, was relevant to the applicant’s claim. She concluded by stating that she had considered all relevant

documentation, and affirmed the ORAC recommendation.

THE APPLICANT’S SUBMISSIONS

18. The applicant’s complaints in respect of the decision may be summarised as:-

a. Flawed treatment of credibility;

b. Making a bald finding under s. 11B (c) of the Refugee Act 1996;

c. Failure to consult COI; and

d. Failure to consider the risk faced by the applicant’s child.

(a) Treatment of Credibility

19. In respect of the findings made in relation to her lack of knowledge about her asserted faith, counsel for the applicant

complains that the Tribunal Member failed to take into account that the applicant knew some details about the Islamic

faith. He also complains that the Tribunal Member had regard to “highly technical and highly specialist areas of

knowledge” in relation to the Muslim faith - relating for example to the role of Bilal, the months in the Islamic calendar and

the duration of those months – without first furnishing to the applicant any indication as to what sources the Tribunal

Member had consulted in that regard, in breach of s. 16(8) of the Refugee Act 1996, as amended.

20. In respect of the second negative credibility finding relating to the period after her boyfriend’s arrest that the

applicant spent at her father’s house, counsel contends that the manner in which the Tribunal Member addressed the

issue amounts to no more than a statement of fact under a general, catch-all heading relating to credibility, and that it

fails to indicate why the applicant’s credibility is undermined.

(b) The s. 11B Finding

21. Counsel contends that it is unclear upon what basis the Tribunal Member decided that she would have regard to s.

11B (c) of the Refugee Act 1996, as amended, and that she failed to engage in any rational analysis of the applicant’s

travel to the State such that an assessor is left to speculate and draw inferences as to her thinking. Reliance is placed on

Ajoke v. The Refugee Appeals Tribunal (Unreported, High Court, Hanna J., 30th May, 2008), where Hanna J. granted leave

on the following basis:-

“[O]ne does not expect an exhaustive and detailed judgment from an Applications Commissioner but I do seriously

query whether or not the bald statement that due regard has been had to everything in section 11B is of itself

enough, perhaps because they are such important incredibility pointers and because they are mandatory

considerations should something more not have been included.”

(c) Treatment of COI

22. Counsel for the applicant contends that the Tribunal Member erred by failing to consult COI when assessing the

applicant’s credibility. He submits that this is not one of the “exceptional cases” referred to by Peart J. in Imafu v. The

Refugee Appeals Tribunal [2005] I.E.H.C. 416 where the credibility findings made were sufficiently strong that the

potential value to be derived from consulting COI is rendered nugatory. He accepts that the applicant submitted no COI in

support of her appeal and that her knowledge of the Muslim faith is weak, but notes that there is a shared burden of

proof on the Tribunal Member to seek out all facts and information and that there is an obligation under Regulation 5 of

the European Communities (Eligibility for Protection) Regulations to consult relevant COI.

23. He also argues that it is clear that no COI was considered by the Tribunal Member because she makes no reference to

COI at the end of her decision where she states that she had considered “all relevant documentation”.

(d) Consideration of the risk faced by the applicant’s child

24. Counsel submits that the Tribunal Member failed to give consideration to the risk that would be faced by the

applicant’s child if she were to be deported to Nigeria. Reliance is placed on Ojuade v. The Refugee Appeals Tribunal

(Unreported, High Court, Peart J., 2nd May, 2008).

THE RESPONDENTS’ SUBMISSIONS

25. Counsel for the respondent submits that the grounds put forward on behalf of the applicant are trivial and tenuous

and do not meet the requirement for leave. The Court’s attention is drawn to the fact that in the Notice of Appeal, the

applicant did not seek to address any of the credibility findings made by ORAC in the s. 13 report nor did she make any

submissions or furnish any objective COI, and that no oral submissions were made by or on her behalf at the oral appeal

hearing. Counsel for the applicant describes the applicant’s appeal as “bald”.

(a) Treatment of credibility

26. It is contended that the Tribunal Member acted in accordance with fair procedures insofar as she questioned the

applicant at the appeal hearing, at which the applicant was legally represented, and that she was entitled to make a note

of the applicant’s demeanour and hesitancy at the oral hearing. It is argued that the first of the three matters on which

the credibility findings were made (i.e. her apparent lack of knowledge about the Muslim faith) was central to the

applicant’s claim. With respect to the second and third credibility findings, it is contended that although these are weaker

than the first they do bear a legitimate nexus to the applicant’s core claim and that that this Court must be very slow to

interfere with the Tribunal Member’s findings in this regard.

(b) The s. 11B Finding

27. Counsel submits that the s. 11B finding made by the Tribunal Member in Ajoke v. The Refugee Appeals Tribunal

(Unreported, High Court, Hanna J., 30th May, 2008) can be distinguished from the finding made by the Tribunal Member in

the present case on the basis that the finding in this case was not “bald” as was the case in Ajoke but rather bore a

clear and legitimate nexus to the applicant’s core claim.

(c) Treatment of COI

28. It is contended that there was a fundamental finding made with respect to the applicant’s credibility in this case and

that there was therefore no obligation to consult COI. It is contended that the obligation to assess credibility in the light

of objective COI does not apply at all cases and at all times and reliance is placed on S.M. v. The Refugee Appeals

Tribunal (Unreported, High Court, Hedigan J., 2nd December, 2008) and Imafu v. The Refugee Appeals Tribunal [2005]

I.E.H.C. 416.

(d) Consideration of the risk faced by the applicant’s child

29. Counsel submits that it is unusual that the applicant’s child was not joined to the proceedings. It is further complained

that no separate or independent ground was ever set out by her mother on the child’s behalf and that the child must

therefore be treated as subsumed in her mother’s application. It is contended that this case is distinguishable on the

facts from Ojuade v. The Refugee Appeals Tribunal (Unreported, High Court, Peart J., 2nd May, 2008) where it was

asserted by the adult applicant that she feared her daughter would be subjected to FGM if returned to her country of

origin. Reference is made to B.V.E. and O.V.E. v. The Minister for Justice, Equality and Law Reform [2008] I.E.H.C. 230

where Birmingham J. noted that Ojuade was “essentially a female genital mutilation case”. He found that “[n]o specific

fears or concerns for her daughter were advanced by the adult applicant” until the judicial review stage, and found the

fears asserted at that stage in respect of the child to be “singularly unimpressive” and “redolent of legalistic, formulaic

pleading by the applicant.”

THE COURT’S ASSESSMENT

30. This being an application to which section 5(2) of the Illegal Immigrants (Trafficking) Act 2000 applies, the applicant

must show substantial grounds for the contention that the decision ought to be quashed. As is now well established, this

means that grounds must be shown that are reasonable, arguable and weighty, as opposed to trivial or tenuous. I find

that all the arguments made in this case were utterly tenuous.

(a) Treatment of Credibility

31. The primary credibility finding made in the RAT decision relates to the apparent paucity of the applicant’s knowledge

of the Muslim faith. That finding must be assessed in the light of the fact that the applicant’s religion and her conversion

are central to her claim: she said she was raised as the only child in a strict Muslim family and that she practised that

faith until 2004 when she was 28 years of age. That is the bedrock upon which her asylum application was built; without

it, the claim crumbles. It is in that light that this Court must view the Tribunal Member’s findings on the applicant’s

answers to the questions put to her in respect of the Muslim faith at the oral appeal hearing. In the circumstances, I find

it wholly reasonable and rational that the Tribunal Member found it difficult to believe that the applicant would not have a

more comprehensive knowledge of the Muslim faith in the light of her asserted background, her age and her education.

The Tribunal Member was especially charitable in expressing her finding in this instance.

32. I reject the submission that the applicant should have been given credit for knowing some commonly known details

about the Muslim faith. I also firmly reject the submission that the Tribunal Member was obliged under s. 16(8) of the

Refugee Act 1996, as amended, to furnish the applicant with copies of the sources that she consulted in respect of the

Muslim faith. The purpose of that sub-section is to ensure that information is not sprung upon an applicant or relied upon

without allowing the applicant to consider the information and to make submissions in reply. It is not intended for basic

credibility assessments about which no submissions or explanations are necessary.

33. With respect to the second negative credibility finding, I accept that the Tribunal Member did not explicitly state that

she found the applicant’s account of the period after her boyfriend’s arrest to be implausible or incredible. I do not believe

it was necessary for her to do so, however, as it is clear from a holistic reading of the decision that this is one of the

three credibility issues that the Tribunal Member found to undermine the applicant’s account. The applicant and her legal

representatives were aware from the s. 13 report that the applicant’s account of that period was doubted but did not

made any submissions in that regard at the appeal stage. It is well established that applicants are not passive

participants in this process: they must not just sit back and let things happen around them and then seek to complain

afterwards.

(b) The s. 11B Finding

34. I also find the applicant’s complaint in respect of the Tribunal Member’s finding as to the relevance of s. 11B (c) of

the Refugee Act 1996, as amended, to be entirely without foundation. That sub-section provides:-

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

purposes of an 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:- […]

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

arrived in the State;”

35. The Tribunal Member made her finding under s. 11B (c) following the noting of the applicant’s claim to have travelled

on a red passport but where she did not did not know the nationality of the passport or whether it contained a visa. The

applicant claimed that she did not know where she was going and was told to tell Immigration officials she was “going

visiting”. The Tribunal Member expressly stated as follows before referencing s. 11B (c):-

“It is difficult to believe that the Applicant could have travelled with such limited information about her travel

details. If she was questioned by immigration officials her lack of knowledge would have created serious difficulties

for the Applicant and the agent.”

36. This is a rational finding and there is no doubt that it constitutes a cogent basis upon which a finding under s. 11B (c)

could be made and bears a legitimate nexus to such a finding. I have reached this conclusion having also read the

applicant’s questionnaire and the notes of her s. 11 interview, in neither of which can there be identified any further

explanations of the applicant’s travel to the State.

37. I accept the respondents’ submission that the present case is distinguishable from that of Ajoke v. The Refugee

Appeals Tribunal (Unreported, High Court, Hanna J., 30th May, 2008). In that case the decision-maker baldly stated that

he had regard to s. 11B without referring to any particular sub-section and without linking his statement to any of the

factual matters upon which he had made negative credibility findings. The same is not true in this case, where the

decision-maker had regard to a specific sub-section and where his finding bears a clear factual nexus to his findings on

the applicant’s explanations on her travel to Ireland.

(c) Treatment of COI

38. It is clear to me that this is one of the cases described by Peart J. in Imafu v. The Refugee Appeals Tribunal [2005]

I.E.H.C. 416 where nothing would be gained by consulting objective COI especially where the only objective evidence

before the Tribunal Member was that which was appended to the s. 13 report and relied on in support of the ORAC

negative credibility findings. In general, it is a matter of good practice to assess the credibility of an applicant in the light

of objective evidence but in the present case the findings made relating her claim to have been a Muslim until her recent

conversion meant that her claim fell at the first hurdle. It would have been an exercise in futility to go on to assess COI,

if any existed, to support her story of a Muslim’s father’s attitude to a woman and child in her position. In the

circumstances, no COI could have been “relevant” within the meaning of Regulation 5 of the European Communities

(Eligibility for Protection) Regulations.

(d) Consideration of the risk to the applicant’s child

39. The applicant complains that no consideration was given by the Tribunal Member to the risk faced by the applicant’s

daughter in Nigeria. The infant daughter is not a party to these proceeding. Even if that were to be ignored, there is no

merit in that complaint as it is well established that where no independent grounds are made out, the child’s case is

treated as being subsumed in the parent’s application. At the post-leave stage in A.N. & Ors v. The Minister for Justice,

Equality and Law Reform & Anor [2004] I.E.H.C. 433, Peart J. held:-

“A constitutionally harmonious interpretation of the legislative framework in relation to the interests of a minor

accompanied by a parent is that the parent is the person who continues to carry the responsibility for looking after

the minor’s interests, and as a consequence, continues to have the responsibility, in the capacity of active

participant in the asylum process, for setting out in an appropriate way any grounds for the application […].”

40. In this case, when asked at her s. 11 interview why her daughter could not return to Nigeria, the applicant replied

that “Because she belongs to a Christian family – [her] father is a Christian, I am a converted Christian. My father would

want to kill the baby due to the shame.” Thus it is clear that the claim advanced on behalf of the applicant’s daughter is

precisely the same claim as that advanced by the applicant on her own behalf. Nothing further was asserted in the Notice

of Appeal. In fact, the baby was not mentioned at all in the short letter in which routine general submissions were made

on behalf of the applicant and no further submissions were made at the appeal hearing. In the circumstances, this case is

distinguishable from the facts in Ojuade v. The Refugee Appeals Tribunal (Unreported, High Court, Peart J., 2nd May,

2008), where a distinct fear was asserted on behalf of the infant applicant but the Tribunal Member failed to give any

more than an “oblique” mention to that fear. The applicant’s arguments in this regard must therefore fail.

Conclusion

41. In the light of the foregoing, I refuse leave.