High Court dismisses certiorari application against Refugee Appeals Tribunal's credibility finding on asylum claim.

Neutral Citation Number: [2009] IEHC 329

THE HIGH COURT

2007 1540 JR

BETWEEN/

S. S. S.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND

REFUGEE APPEALS TRIBUNAL

RESPONDENTS

JUDGMENT of Mr. Justice Cooke delivered on the 14th day of July, 2009

1. By a judgment of 3rd February, 2009 and an order of 10th February, 2009, Birmingham J. granted leave for the bringing

of the present application to seek an order of certiorari with a view to quashing a decision of 21st August, 2007 made by

the Refugee Appeals Tribunal rejecting an appeal by the applicant against a report of the Refugee Applications

Commissioner of 28th February, 2007, in which it was recommended that the applicant be not declared to be a refugee.

2. The single ground upon which leave was permitted was as follows:

“The second named respondent failed to have regard to relevant considerations and/or made unreasonable findings.

The second named respondent found that the applicant did not have a detailed knowledge of Islam and in particular

of the Koran at her interview and for this reason it was not credible that she was a member of the Ashraf clan

which is reported to be a very religious clan. The second named respondent failed to consider that the applicant

had made no claim that she herself was particularly religious and/or failed to consider that the applicant’s

explanation that she had no formal education at all and that her religious education was interrupted by the fighting

in Somalia, in the premise it the Tribunal member placed over reliance upon and over interpreted limited country of

origin information about the Ashraf clan and failed to consider the particular circumstances of the applicant as

described in her evidence.”

3. The applicant arrived in the State in 2006 as an unaccompanied minor who claimed to have fled Somalia. She claims

she was a member of the minority Ashraf clan, which has suffered badly at the hands of militias in the conflicts which

have ravaged that country in recent years. Her family have been repeatedly attacked by militias and several times forced

to flee to flee their home. Two of her brothers have been killed and she herself has been abducted by militias and

mistreated on two occasions.

4. It does not appear to have been doubted by either the authorised officer of the Commissioner or the Tribunal member

in this case that the account she gives of the suffering of her family and her own mistreatment at the hands of the

militias would constitute a basis for a fear of persecution for a Convention reason if it was found to be credible. The

treatment of the Ashraf clan she describes is consistent with country of origin information. The report of the

Commissioner of 28th February 2007, however, did not find her credible, largely on the basis of her answers to questions

about the area in which she claimed to live, her knowledge of the Islamic faith and of the Koran and of her account of her

travel from Somalia to Ireland.

5. The Tribunal member came to the same conclusion and the single ground of the present application is directed at one

particular aspect of that assessment of the applicant’s credibility namely, the appraisal made of her answers to the

questions as to her knowledge of the Islamic faith and the Koran. The Tribunal member does not appear to rely on the

questions put by the authorised officer in relation to her knowledge of the area she lived in or in relation to the

composition and characteristics of the Ashraf clan.

6. This, therefore, is a challenge to the Tribunal member’s treatment of the issue of credibility. The case law in this regard

is well known and many of the relevant judgments have been referred to in the written submissions and in oral argument.

It is therefore unnecessary to address that case law in detail. Without being exhaustive, it appears to the Court that the

guiding principles which emerged from the case law might be usefully summarised as follows:

1) The decision on credibility is to be made by the Commissioner at first instance and on appeal by the Tribunal

member.

2) Provided a finding on credibility is based on an objective appraisal of all relevant evidence and information and

free from any material infringement of applicable law or the principles of natural or constitutional justice, it will be

immune from challenge by judicial review.

3) This Court is not concerned with the issue of credibility itself and must not fall into the trap identified by Peart J.

in the Imafu case of substituting its own assessment of credibility for that of the decision makers during the asylum

process.

4) The Court is only concerned with the legality of the process by which these decision makers have reached a

negative conclusion on credibility and once the Court finds itself querying whether or not a decision maker has

perhaps been too harsh in assessing the answers given to questions put in order to test credibility, where the

questions are otherwise logical and appropriate in the testing process, the Court is in danger of substituting its own

view.

5) The Court must also be wary of acceding to an invitation to deconstruct a decision on credibility by isolating

individual parts of the appraisal and subjecting particular findings to distinct analysis.

6) In most instances a decision maker reaches a single overall conclusion on credibility based on a cumulative

impression gleaned from the applicant’s responses to questions on various parts of the claim and on the personal

history as given, including the way in which the story is told, the applicant's demeanour and his or her reactions

when doubt is expressed or discrepancies or contradictions are highlighted.

7) The decision maker must, of course, consider all pertinent evidence and information and must weigh the material

objectively and not selectively.

8) The decision must, therefore, be read as a whole and an error in respect of one or more specific factors

identified as undermining credibility will not invalidate the entire decision if the negative conclusion is adequately

sustained by the remaining factors relied upon by the decision maker.

7. Applying those principles to the present case it is clear to the Court that the annulment of this Contested Decision

would not be warranted. The ground upon which the challenge is made is directed exclusively at the reliance by the

Tribunal member on the responses given by the applicant to questions about her Islamic faith and her knowledge of the

Koran. It is argued that, having regard to the applicant’s young age, her limited education at home by her father and the

circumstances in which for effectively her entire life she has lived in an area of conflict, the Tribunal member's finding that

she should have a better knowledge is clearly unreasonable and irrational. She did, in fact, show quite a good knowledge

and got most of the questions right.

8. It is said that the Tribunal member exaggerated the significance of the description of the Ashraf clan as a religious

group in the country of origin information in effectively building an expectation of a more detailed familiarity with Islamic

doctrine on the part of a teenage girl with no formal education. As against that, the respondent argues that what was

clearly significant to the Tribunal member was that she had described her father, from whom she received that

instruction, as a Koranic teacher who kept a small Koranic school.

9. In the Court’s judgment those arguments go to the question of the appraisal made by the Tribunal member, rather than

to the legality of the process. The argument is effectively that the Tribunal member was being unduly harsh and therefore

unreasonable in the criticism of her answers. That might well be a valid criticism but that is a matter of judgment as to

what should be expected and it is necessary to distinguish the appraisal itself and its conclusion from the process

employed by the Tribunal member. The process is that of testing the applicant by questions arising out of her own

account of her education, the Islamic instruction by her father who was a Koranic teacher. As such, the approach was

clearly relevant and logical. To take issue with the assessment of the responses is to invite the court to say that it would

have taken a different view.

10. Given the account given by the applicant, the questions put were clearly logical and relevant but there is a second

important reason why the assessment in this case could not be annulled. The questions as regards religion were only one

of the factors identified by the Tribunal member in reaching the overall conclusion on credibility. Far more significant

perhaps is the attention given to the applicant’s account of the arrangements for her flight from Somalia and her travel to

Germany and Ireland, a factor which the Tribunal member is required to take into account under section 11B(c)of the

1996 Act.

11. The specific points identified by the decision in this regard include the following:

a) Her family were repeatedly attacked, two of her brothers were killed; they had been in a position to pay some

ransom money. Many members of the Ashraf clan had already left Somalia, yet only the applicant was sent abroad.

Why did the family as a whole not leave?

b) She was to be taken by an agent arranged by her mother and an uncle to her uncle in Canada, yet she had no

idea whereabouts in Canada the uncle lived and expected to ask around for him when she got there. She had

neither been given nor apparently asked for any contact address or phone number for her uncle in Canada.

c) She was to say she was the agent’s daughter if questioned during the flight but she appears not to have known

his name as it is nowhere mentioned and she knows of no details of the passport under which she travelled. Her

account of how she passed through controls at airports in Germany and Dublin with the agent and was put, by him,

in a taxi and abandoned is said to be vague and not credible.

12. These findings, unlike the questions on her religious knowledge, do not lend themselves to the type of judgmental

appraisal applied to the questions on religion. They are common sense queries based upon the undisputed description

given by the applicant herself and are clearly cogent, relevant and almost inevitable. Contrary to the submission that is

made, they arise out of what she herself had said and cannot, therefore, be said to be speculative simply because they

are queries. Thus, if these were the only findings to underpin the overall conclusion on lack of credibility they would

clearly be sufficient on their own to sustain that finding.

13. Finally, it was argued that the particular Tribunal member had been inconsistent when this conclusion is contrasted

with an opposite conclusion reached by her in an earlier and similar case involving an Ashraf applicant submitted to the

Tribunal. However, a reading of that decision in fact highlights why the present decision cannot be interfered with and

why the opposite conclusion was tenable in that case. That case, number 69/1262/65 was a case of a minor in which the

benefit of doubt was expressly extended. It turned entirely on the credibility of the applicant’s description of persecution

of the Ashraf clan and no issue arose equivalent to those of the present case concerning the fact that the applicant’s

family had not fled, though they had apparently the means to do so, or her description of being taken to Canada to an

uncle she had no means of locating.

14. For all of these reasons the court considers that this is a clear case in which the limited jurisdiction of the Court in

relation to findings of credibility cannot permit it to overturn a conclusion which is adequately based upon findings other

than those which are sought to be impugned in the single ground for which leave has been permitted. The application for

relief, therefore, must therefore be refused.