High Court dismisses judicial review of Refugee Appeals Tribunal decision on credibility findings regarding applicant's asylum claim.

Neutral Citation Number: [2009] IEHC 432

THE HIGH COURT

JUDICIAL REVIEW

2006 1231 JR

BETWEEN

A. Z. N.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (BEN GARVEY) AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

JUDGMENT OF MS. JUSTICE M. H. CLARK, delivered on the 7th day of October, 2009.

1. This is an application for judicial review of the decision of the Refugee Appeals Tribunal (RAT), dated the 25th August,

2006, to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the

applicant should not be granted a declaration of refugee status.

2. Leave was granted by Birmingham J. on the 31st July, 2008, on the following ground:-

“The decision of the First Named Respondent does not accurately reflect the conduct and content of the appeal

hearing and the evidence and information provided by the Applicant in the course of his appeal and contains factual

inaccuracies of a material nature. The Tribunal Member has acted in breach of the Applicant’s right to fair

procedures and natural and constitutional justice and has acted ultra vires the Refugee Act (Appeals) Regulations

2003 S.I. 424”.

3. The substantive application was heard at the Kings Inns, Court No. 1, on the 3rd and 4th March, 2009. Mr. John R.

Finlay S.C. and Ms. Sarah Walsh B.L. appeared for the applicant and Mr. Anthony Moore B.L. appeared for the

respondents.

Factual Background

4. The applicant claimed to be a national of Sudan and a member of the minority Beni Amer who are a sub-division of the

Beja tribe which occupies the area of Eastern Sudan in the Red Sea region. The applicant claimed that before coming to

Ireland, he lived in a Beja village of about 30 houses called El Hassnab in Tokar province in eastern Sudan. He received all

his education at El Hassnab apart from four years at the Red Sea University at Port Sudan where he studied Arabic and

was also employed as port worker. His account of the events preceding his departure from Sudan is as follows: since the

year 2000 when he was a student in Port Sudan he was a member of the Al Beja Congress which is an opposition political

party. The Congress seeks vindication of the rights of the Beni Amer people and is made up of a militant wing called the

Free Lions and a non violent wing called National Movement of Eastern Sudan. The Free Lions are engaged in armed

conflict with the Sudanese government while the National Movement aims to improve the employment opportunities of the

Beja people by peaceful means. The applicant claims that he supported the National Movement because the Beja are not

recognised as Sudanese, being considered Eritrean, and as such they are marginalised on the jobs market. They are

offered unskilled jobs while all the other situations are filled by Sudanese. As an example, he described the situation at

the port authority in Port Sudan where well qualified Beja are offered jobs as porters or loaders.

5. The applicant says that his problems initially arose from his presence in early 2005 at two demonstrations organised by

the Al Beja Congress in Port Sudan. On the 26th January, 2005, the Congress wrote a letter to the Governor of the Red

Sea province of Sudan protesting the treatment of the Beni Amer people and seeking the resignation of the President of

the Marine Harbour. The applicant and some students and other people were present the following day (the 27th) at a

peaceful demonstration when this letter was handed over. The letter gave the Governor 72 hours to respond. When no

action was taken in response to the letter a second demonstration occurred on the 29th January, 2005. The applicant

said that he and his future wife were walking together with the other demonstrators from the market place heading

towards the Port and Marine Administration Building when security forces and police attacked the demonstration resulting

in the deaths of approximately 35 people.

6. Both the applicant and his betrothed were arrested. He himself was arrested by the police while his wife was arrested

by the security forces. The applicant claims that he was detained for roughly three months in Port Sudan prison, during

which time he was tortured, beaten and threatened with execution. He was released on 10th April, 2005, after signing an

undertaking that he would cease his activities with the Congress.

7. He says that on his release he returned home to El Hassnab where, despite having signed the undertaking, he and his

wife (who he married on the 5th May, 2005) continued their activities with the Congress because he “would not let the

government get away with stealing their resources and mistreating their people.” After he had returned home he went to

visit his brother who was a member of the Free Lions in Tasanay on the border of Sudan with Eritrea where the Beni Amer

are found, divided between the two countries. He claims that during his visit, people from Tasanay attacked government

army forces who were camped close to El Hassnab. The applicant says that he returned to El Hassnab on the 9th July,

2005. The government forces thought that because he had gone to Tasanay, he had some role in the attack on the

military camp. The following day, government forces attacked his village of El Hassnab from the air and with ground

forces, as a result of which his father and brother and many others were killed.

8. His wife, who survived the attack on El Hassnab, went to stay with a relative while the applicant was arrested as an

informer and once again detained and tortured. This time he was detained in Kassala prison where he was accused of

being an Eritrean and questioned, beaten, burned, deprived of food and held in solitary confinement. He was struck on the

head with a gun and lost consciousness and he woke up in hospital. Two days later, supporters of the Al Beja Congress

helped him to escape by providing him with women’s clothes which were hidden in the lavatory in the hospital. He escaped

the hospital disguised as a woman on the 5th August, 2005. He was sheltered by Al Beja Congress members who advised

him to leave Sudan as his life was in danger. Those people arranged for him and his wife to be reunited and they then

both fled Sudan in fear of their lives. They paid for the journey by using his wife’s gold and money he had hidden in the

house in El Hassnab and they took a boat and arrived in this State on the 5th September, 2005.

Procedural Background

9. The applicant and his wife applied for asylum in this State in the normal way. The husband completed a questionnaire

and attended for a s. 11 interview which took place over two days. His wife was separately interviewed and their

accounts were compared. By letter dated the 7th April, 2005, the applicant was notified that ORAC was recommending

that he should not be granted a declaration of refugee status. One of the reasons for the recommendation was his

inability to speak either the Bedawiye language of the Beja people or Tigre, the alternative tribal language. Although

country of origin information (“COI”) states that the Beja are Bedawiye speaking with Arabic as a second language, the

applicant explained that in his village, his people spoke mainly Arabic. The s. 13 report outlined discrepancies between his

account of the demonstration in Port Sudan and that of his wife. His inability to describe events in the Al Beja Congress

were said to undermine his claim. He was described as not forthcoming in the details relating to descriptions of the

demonstration. The village of El Hassnab could not be located on an electronic mapping system and Tokar, which he had

described as a province, was found to be a town. Many other details impugning his credibility were outlined and it was

also found that no COI supported the holding of a demonstration on the 27th January, 2005.

10. The ORAC officer’s recommendation relating to the applicant’s wife was also available to the court. The same

credibility issues arose in relation to the inability to locate any village called El Hassnab in Tokar province and there was

doubt as to the existence of such a village. The village is not mentioned in any COI relating to documented aerial

bombardment which occurred in the Eastern area of Sudan in June/July 2005. The wife similarly was unable to speak the

Bedawiye language even though she claimed to be an activist in health and education in the remote villages of Eastern

Sudan where Bedawiye is the common language. She too was unable to speak Tigre which is the other language of the

Beja. Her knowledge of the Al Beja Congress was found to have been confined to the demonstration in Port Sudan. Her

evidence of the demonstrations and her arrest and detention were found to be implausible and it was found that she was

using real events in Sudan to support her claim. Her lack of any documentation was also the subject of negative

comment.

11. Both the applicant and his wife appealed against the ORAC recommendations and sought to have their appeals heard

together. A Form 1 Notice of Appeal was forwarded to the RAT with a vast amount of information on the political and

human rights situation in Sudan. The court has considered this information almost all of which relates to Darfur and the

separate conflict in the south of Sudan and those portions are therefore not relevant. Of some relevance among the

documentation furnished to the RAT is a Sudan Country Report of April, 2006 prepared by the U.K. Home Office which

contains a short extract devoted to the Beja and which indicates that the Beja have their own language and customs. Of

further significance are several reports which deal with the demonstrations in Port Sudan which state that a large body of

demonstrators were involved in two demonstrations which took place on the 26th and 29th in Port Sudan and not the

27th January asserted by the applicant. The information describes the events of the 29th January as involving several

thousands of demonstrators.

12. Reports from Amnesty International also furnished to the RAT by the appellants listed the names of persons known to

be held in Sudanese prisons including the names of members of the Al Beja Congress who were arrested following the

demonstrations on the 29th January and who were still in custody three months later. The applicant’s name does not

appear. The appeal papers also included a translation of a letter stated to be from the Al Beja Congress. That letter

named the applicants and said they were from the “Hasnab area of Toukar Province are activists in Kawadir Organising

Beja. He [i.e. the applicant] endured many disturbances and was arrested in the protests which started on the 19th of

January 2005 in Burstsudan city for challenging the regime. He was tortured and beaten by the security forces of the

dictatorship regime. His wife Mrs Taysir works in the management of the summer caravans for Health awareness in the

village and she is an active member in organising the Beja Congress. For that, we pledge you to facilitate their roles as

Beja Congress is worried about their lives and what they could be facing of arrest and torture in the circumstance of

returning home to Sudan.”

13. The oral appeal hearing took place on the 13th July, 2006. The wife’s appeal hearing was held first. The husband’s

appeal which followed was not successful and a negative decision issued from the RAT on the 25th August, 2006,

confirming the ORAC recommendation. The RAT decision relating to the husband is the subject of the present challenge.

The court was not made aware of the outcome of the wife’s appeal nor was the Tribunal decision relating to her appeal

opened to the court. The attendance note taken by an RLS caseworker at the applicant’s hearing is before this Court.

The attendance note played a crucial part in this judicial review and in the leave application hearing. It was relied upon by

the applicant to demonstrate that certain questions were not put to the applicant as stated in the Tribunal Member’s

decision. The court was informed that the attendance note was not originally produced to Birmingham J. at the leave

application until he asked that efforts be made to determine whether any record of the hearing could be produced and an

adjournment was granted to conduct inquiries when it was then produced.

14. As is reflected by the ground on which leave was granted at para. 2 above, the applicant’s challenge to the RAT

decision centres on asserted discrepancies between what the applicant avers to in his affidavit of what occurred at his

appeal hearing and the findings made in the Tribunal Member’s decision.

The Impugned Decision

15. The RAT decision follows the now familiar format of first setting out the applicant’s claim with the evidence and

submissions made at the oral appeal hearing. It then addresses relevant legal principles and concludes by analysing the

claim and setting out the findings under the hearing “decision and reasons”.

16. The Tribunal Member recounted the applicant’s evidence in some detail. He said that the applicant presents as a

highly educated and articulate person and said that to the extent that his evidence was that a demonstration occurred

on the 29th January, 2005 and that the authorities interfered with that demonstration by killing and arresting people, the

applicant’s evidence was in conformity with country of origin information. However when he analysed the applicant’s

evidence in full he found that there were “a number of problematic inconsistencies” which “serve to undermine his claim

and questions the legitimacy of his claim”. The Tribunal Member made comments on some of the questions put and the

answers given at the oral hearing and he identified a considerable number of issues which ultimately were crystallised to

nine negative credibility findings, relating to the following:-

1. The applicant states that he took part in a peaceful demonstration on the 27th January to hand in a

letter of protest. The events preceding the 29th January are well documented in country of origin

information which makes no mention of anything happening on the 27th.

2. It would be expected that the applicant would know in detail certain aspects of the well documented

demonstration on the 29th January. He was unable to state how many people were on the

demonstration. There were discrepancies between the applicant’s evidence to the Commissioner and to

the Tribunal in relation to where his wife was at the demonstration. The Tribunal Member stated that he

was satisfied that “it was only when it became apparent that his spouse gave a different version of

events that the applicant changed his evidence. I am satisfied that if there were any discrepancies in

his Questionnaire and Interview which came about because of any misinterpretation that matter could

have been resolved at an earlier stage”. He commented that no grounds were submitted relating to

interpretation issues prior to the hearing and found that “the applicant’s attempt at undermining the

procedure goes to his credibility.”

3. Amnesty International states that the demonstration relating to the handing in of the documents and

demands occurred on the 26th and makes no mention of it occurring on the 27th.

4. The applicant was asked approximately how many partook in the demonstration and he was vague,

hesitant and unable to say. This was considered to be unusual considering his background and

education.

5. He gave conflicting evidence in relation to where his wife was during the demonstrations.

6. In relation to the bombing of his village the applicant said that he was in the same room as his wife

but she gave a different version and when he was asked how they were separated he was vague and

said that she went to her aunt’s place after the bombing.

7. He told the Tribunal that the bombing of his village was indiscriminate but in his interview he

contradicted that.

8. He claims that he was a high profile prisoner and did not have any contact with the outside world.

However, his evidence concerning how he escaped lacks credibility. If he was a high profile prisoner who

was brought under armed guard to prison it is not plausible that he was simply allowed to go into a

toilet and come out dressed as a woman.

9. Late COI submitted by the applicant states that the Beja are a separate ethnic group with their own

culture, language and history. The Tribunal Member had difficulty accepting that a person so involved in

the Beja Congress could not speak the language and he gave no plausible explanation as to why he

could not speak the language of the Beja.

17. Overall the Tribunal Member found that the applicant lacked credibility and he affirmed the ORAC recommendation.

THE ISSUES IN THE CASE

18. The applicant’s complaints are contained in the composite ground under which leave was granted by Birmingham J. on

the 31st July, 2008 at para. 2 above.

19. Mr. John Finlay S.C., counsel for the applicant, commenced by pointing out that the facts averred to in the

applicant’s affidavit had not been controverted and that in those circumstances the court should accept its contents as

true and accurate and should also accept the attendance note compiled by the RLS caseworker at the oral appeal hearing

as being supportive of the applicant’s averments. The applicant’s affidavit denied that certain questions referred to in the

RAT decision were put to him or that the translation of words and phrases was accurate. The contents of the affidavit

and the attendance note of the oral hearing bear a remarkable similarity raising the inference to this Court that the

affidavit was prepared on the basis of the contents of the attendance note which was at all time available to the

applicant.

20. As the RAT decision comprised a series of findings on what the applicant and his wife said to ORAC and the Tribunal

and how their version of events differed from each other and from COI, the hearing before this Court involved an

examination of the minutiae of the decision. It seems to the court that this analysis of detail sometimes omitted the all

important overall assessment of why the Tribunal Member came to his determination that the applicant’s appeal should be

not be allowed.

21. At the hearing the leave decision of Birmingham J. was broken down into its various component parts and taken in

turn, the first being:

(a) Failure to reflect the conduct and content of the appeal hearing

22. The applicant submitted that the Tribunal decision failed to reflect the conduct and content of the applicant’s oral

appeal hearing. He relied particularly on the fact that the Tribunal Member found that he and his wife gave differing

versions of where they were in their house when the village was being bombed. In his decision, the Tribunal Member

stated that it was put to the applicant that his wife had given “a different version” of where she and the applicant had

been when their village was bombed. In his grounding affidavit the applicant says that that his wife’s version was never

put to him and further that the question put to him by the interpreter at the oral hearing was whether he was in the same

“house” as his wife during the bombing. The attendance note of the hearing records that two separate questions were

posed by the Presenting Officer, first as whether the applicant was in the same “house” as his wife and then whether he

was in the same “room” as his wife and, again,

Q. “but you were in the same room when the attack occurred – who (sic) did you become separated from her?”

A. “yes, we were in the same room – when I was arrested she went to her aunt’s place”.

23. The applicant’s explanation for this inconsistency was that the translator asked him whether he was in the same

“house” as his wife but he did not understand that he was being asked if they were in the same “room”.

24. The applicant submitted to the court that if it had been put to him that he and his wife had given inconsistent

accounts of their whereabouts when the bombing was occurring, it would have emerged that there was a translation error

with respect to the difference between a “room” and a “house”. It was argued that as the attendance note does not

record any questions on any divergence between the applicant’s account and that of his wife this finding does not merely

constitute an error of fact but represents a breach of the fair procedures and natural and constitutional justice and that

this error alone should lead to the quashing of the decision.

25. Counsel for the respondents argued that there was no obligation for the Tribunal Member to put to the applicant the

fact that there was a discrepancy between his evidence and that of his wife but that notwithstanding this argument, the

final portion of the attendance note, which briefly summarises the submissions made at the end of the oral evidence,

suggests that the discrepancy was in fact put to him and that the discrepancy was a matter that had previously arisen

during the hearing. Counsel for the respondent urged the court to bear in mind that attendance notes do not purport to

be a verbatim transcript of the hearing and again cautioned against an unqualified acceptance of the contents of either

the attendance note or the applicant’s affidavit.

26. It was subsequently established that it is not the general practice for legal submissions made to the Tribunal Member

at an appeal hearing to be translated or interpreted to the applicant. This may explain why the applicant was unaware

that the Presenting Officer had made submissions which the attendance note recorded as:

“PO [The Presenting Officer] submitted that any issues relating to the conduct of the interview should have been

addressed by way of judicial review. She submitted that both clients were vague in their evidence and once again

contradicted one another – a major one being where they both were on the date of the attack on the village –

husband stated that he and his wife were in the same room in the same house at the time and the wife stated

that she was in a different room in the same house which was divided in two and the interconnecting door had

been locked”.

27. In spite of the clarifications on practices at Tribunal hearings, the uncontroverted fact remains that the applicant’s

legal representatives made no objections or submissions relating to this detailed point at the appeal hearing. This leads

this Court to infer that the discrepancy was in fact raised with the applicant at the oral appeal hearing. In reading the

RAT decision the court notes that contrary to what was argued, the Tribunal Member did not raise the issue of the

discrepancy himself. In the portion of his decision which relates to the evidence given by the applicant the Tribunal

Member says:

“He (the appellant) was asked where he and his wife were during the attack and he said “we were in the same

house”. Questioned further, he said both of them were in the same room when the attack occurred. It was put to

him that his wife gave different evidence. He was asked what happened to his wife after the arrest and he replied

that he didn’t see her. It was put to him that he said that he was in the same room so he would know how they

were separated.”

28. This Court finds that it is more likely than not that the applicant was made aware that his wife’s evidence on this

issue differed from his. In any event the court finds no substance in the submission that if the matter had not been raised

during the hearing, this would constitutes an error of law which vitiates a very detailed series of reasoned negative

findings on credibility. The court is singularly unimpressed with the submission relating to the translation of “room” into

“house” in the context of the question being raised twice as evidenced by the attendance note of the hearing and the

Tribunal Member’s record in his decision. The applicant sought on two occasions to use translation issues, which were not

identified in the appeal submissions, to explain away significant inconsistencies. It follows that this ground has not been

established.

(b) Failure to reflect evidence and information of the applicant

25. Counsel for the applicant argued that the Tribunal Member’s decision fails to reflect the evidence and information

provided by the applicant in the course of his appeal and contains factual inaccuracies in that regard. It was submitted

that the decision must be quashed and remitted for reconsideration by another Tribunal Member because of the material

errors that it contains. Reference was made to the decisions of Finlay Geoghegan J. in Carciu v. The Minister for Justice,

Equality and Law Reform [2003] I.E.H.C. 31, Traore v. The Refugee Appeals Tribunal [2006] I.E.H.C. 606 and Olatunji v.

The Refugee Appeals Tribunal [2006] I.E.H.C. 113.

26. Each of the factual findings made by the Tribunal Member was the subject of careful scrutiny and extensive

submissions were made on each finding. Counsel for the respondents argued that there were no errors and that the RAT

decision sets out a rational and substantive basis for each of the nine credibility findings based on evidence before the

Tribunal Member which permitting him to make each finding.

27. Before turning to assess the submissions made on each of the findings, the court notes that on several occasions it

was obliged to engage in a comparison of two versions of what was recorded as the applicant’s evidence with each party

laying a different emphasis or nuance on the applicant’s words. The court is uneasy with this method of challenge to the

decision which involved an extraordinary degree of analysis and minute parsing which was strongly disapproved by Peart J.

in J.B.R. v. The Refugee Appeals Tribunal [2007] I.E.H.C. 288 (31st July, 2007) as follows:

“In my view the matters identified by the applicant as errors on the part of the Tribunal Member are insubstantial at

best. In some cases the alleged error is non-existent. There is no doubt that there were inconsistencies in the story

given by the applicant. It is not appropriate to parse and analyse every word and phrase of a decision and isolate a

word or phrase here or there and contend that as a result the process is flawed. An error of fact of sufficient

significance will of course fatally infect the decision making process. But it must be a clear and significant error of

fact.”

28. The court recalls that the sole ground on which leave was granted in this case is set out in full at para. 2 above.

While this is a composite ground it requires at the very least that the applicant should establish that the appeal hearing

was conducted in breach of fair procedures because his evidence was not reflected in the findings. The process engaged

on behalf of the applicant involved a deconstructing of the decision line by line. This process has to a great extent

determined the format of this judgment with the court being forced to make an individual assessment of the submissions

with respect to each of the Tribunal Member’s individual findings.

* Date of the first demonstration

29. There is no escaping from the fact that COI before the Tribunal Member, including a report from Amnesty

International, describes the delivery of the letter of demand as having occurred on the 26th January, 2005. This accords

logically with the information provided that the Governor of the Red Sea province was given 72 hours to meet the

demands contained in the letter. The large demonstration took place on the 29th January being 72 hours after the 26th

January. The evidence of the applicant was that there were three and not two demonstrations; the first on the 26th, a

second on the 27th (described as a peaceful demonstration when the letter was handed over) and a third on the 29th

which was violently broken up. The Tribunal Member was quite correct to find that the applicant’s account is not

consistent with COI and I am satisfied that the applicant’s evidence does not make sense in view of the time given to the

Governor to respond to the demands. The applicant’s submission that the Tribunal Member’s finding is in error and without

foundation fails. However, as a stand alone negative finding it would have seemed unduly harsh to refuse an applicant

refugee status on this issue alone.

* Numbers at the demonstration

30. Counsel for the applicant objected to the Tribunal Member’s characterisation of the applicant’s evidence as “vague

and hesitant” on the question of the numbers at the demonstrations at which he attended. In his grounding affidavit the

applicant says he told the Tribunal Member that he “could not say” what the number was and that there were “a lot of

people” there but he could not give an estimate and was unwilling to hazard a guess as estimates for attendances at

marches and demonstrations are well known for being inaccurate. Counsel complained that the Tribunal Member did not

accurately record this evidence. He argued that the applicant’s answers in that regard were perfectly reasonable.

31. Counsel for the respondents argued that the answers recorded in the attendance note indicate that the applicant did

not wish to answer the questions asked of him as he was aware that his answers might be contradicted by COI. Counsel

argued that the applicant remained deliberately non committal on the size of the crowd because he was not there at all

and that it was open to the Tribunal Member to make the negative finding that he did.

32. The court finds that the Tribunal Member was best placed to assess the manner in which the applicant gave his

evidence which was also subject to adverse comment by ORAC in the s. 13 report. The applicant’s answers to questions

put to him at his first interview are quite revealing: when asked if there were more than 20 people at the demonstration

he answered “yes”; more than 50? “more”; more than 100? “I didn’t count them, I don’t know”. COI reveals that several

thousand took part in the demonstration of the 29th January, which resulted in the deaths of between 20 and 35 people.

The applicant’s answers at the oral appeal hearing were “I don’t know the exact figure; “I can’t say – many”; “I can’t

give you a number because there were a lot of people” and, when asked if there were 1,000, his counsel objected as he

had been asked the question before and said he did not know.

33. It seems to this Court that the Tribunal Member was perfectly entitled to find it unusual that a person of the

applicant’s asserted education and background as an activist was unable to answer fairly straightforward questions about

the size of the demonstration. It is not difficult if one is engaged in a march to give some personal estimate of numbers

even if that estimate is qualified. The applicant was without doubt unable to provide any detail of the number of

participants at the demonstration. In his affidavit he says he was unwilling to guess but he did not say this at the oral

hearing. In the circumstances the court finds no error of fact or law in the finding that the applicant was vague. A judicial

review court is unable to determine any dispute involving a finding of hesitancy and must leave such an assessment to

the person who hears and sees the testimony being presented although the attendance note of the hearing and the

records of the s. 11 interviews provide some evidence to support the finding made by the Tribunal Member. This ground

has not been established but again would not in itself be the reason for refusing refugee status.

* Proximity to his wife at the demonstration

34. The applicant also challenged the Tribunal Member’s finding that there was an inconsistency in his evidence at his s.

11 interview and at the oral hearing with respect to his proximity to his wife at the demonstration. Page 16 of the signed

note of his s.11 interview states:

Q. Were you and your wife walking together?

A. We were walking together. She was my wife to be at that time.

Q. She was at your side, not somewhere else in the crowd, is that correct?

A. She was beside me.

35. However at his oral appeal hearing the applicant denied that he ever said that his wife-to-be was beside him, instead

saying that she was three metres away. The applicant submitted that there was no real difference between what he said

on each occasion. In his affidavit he attempted to explain that the ORAC officer was incorrect in recording that they were

walking together at the demonstration as he and his wife to be could not be seen together as an unmarried couple in a

Muslim country. This is the first time such an explanation was given and it must be viewed with some scepticism

considering that the matter was not raised as an appeal ground.

36. Where the applicant’s wife-to-be was in relation to him at the demonstration would normally be of little importance

unless the interviewer was comparing the evidence of both parties to establish consistency. The s. 13 report refers to

discrepancies between the accounts given by the applicant and his wife in relation to their alleged attendance at the

protests in Port Sudan. This goes some way to explaining how this inconsistency in the applicant’s narrative took on the

importance it did in the RAT decision. As there is undoubtedly a change in what was said on the two occasions and there

was an effort at the eleventh hour to blame the interpreter, the court can find no substance in the challenge to the

validity of this finding.

* Nature of the Attack

37. The applicant also challenged the Tribunal Member’s finding that the applicant gave inconsistent evidence at his s. 11

interview and at the oral appeal hearing on the nature of the attack on El Hassnab. At the s. 11 interview the applicant

stated that his village was probably attacked because Government forces suspected that he had told the people in

Tasanay where the army camp which they attacked was located. He claimed that his village was attacked because the

Government wanted to arrest him. When this page of his evidence was read back to him, the applicant sought the

insertion that the Government was also engaged in ethnic cleansing. At the appeal hearing his evidence was that the

attack was indiscriminate and the village as a whole was targeted as the Government was carrying out ethnic cleansing

and that this was what the Government forces did if they themselves were attacked.

38. Counsel for the applicant argued that there was no inconsistency here and that in both cases the applicant claimed

that the government were engaged in ethnic cleansing of Beja tribespeople. Counsel for the respondents argued that it

was clear from the language used at the s. 11 interview that the applicant was saying that there was a causative link

between his visit to Tasanay and the attack on El Hassnab. He argued that little weight should be given to the applicant’s

clarification at interview that the Government was carrying out ethnic cleansing of his people.

40. It seems to this Court that there is no merit to the applicant’s challenge to the Tribunal Member’s finding on the

disconnect between the applicant’s evidence on the nature (which the court reads as motive) for the attack of El

Hassnab. A perusal of the evidence given at the two s. 11 interviews and in the questionnaire undoubtedly provides ample

material on which the Tribunal Member arrived at his finding that the applicant’s evidence changed at the appeal. There is

little doubt, notwithstanding valiant attempts to put a gloss on the changes that the story of why his village was

attacked metamorphosed from being directed against him personally to being an indiscriminate attack. When questioned

at the oral hearing, the applicant specifically denied his earlier evidence until it was read out to him, at which stage he

reverted to the first version, saying the village was attacked because of his visit to Tasanay. On the basis of this

discrepancy it is very difficult to see what exactly the applicant’s criticism is and where any of this establishes that the

decision did not reflect what occurred at the hearing.

* Escape

39. The applicant challenges the Tribunal Member’s finding relating to the applicant’s account of his escape. The Tribunal

Member outlined that it was put to the applicant that it was not credible that if he was a high profile prisoner under

armed guard, he could escape by simply walking into a toilet and coming out dressed as a woman. In his grounding

affidavit the applicant says that it was not put to him that the account of his escape was implausible and counsel for the

applicant submitted that there is nothing in the attendance note of the appeal hearing to suggest that any question of

that nature was put to the applicant.

40. Counsel for the respondents once again cautioned that the note of the oral appeal hearing is not a transcript and

does not record everything that was said. He also argued that the Tribunal Member was not obliged to specifically put it

to the applicant that he found the details of the applicant’s escape to be implausible. Reference was made to the

decisions of Herbert J. in D.H. v. The Refugee Applications Commissioner [2004] I.E.H.C. 95 and McMahon J. in F.O.S. v.

The Refugee Applications Commissioner [2008] I.E.H.C. 238, where the latter held :-

“It must be acknowledged […] that the obligation on the relevant body is an obligation to give “a reasonable

opportunity” to the applicant and that the obligation arises only where the relevant matter is “important to the

determination” so that the applicant will have the opportunity to respond. Not every matter, however, must be put

to the applicant or to his advisors. It is not incumbent on the Commissioner, after every question is answered, to

say to the applicant:-“I am not sure I believe your answer. It may be when I assess the matter fully and examine

the evidence in its totality that I will reject your answer to this question. What do you say to that?”.”

41. Counsel for the respondents also pointed out that there is a discrepancy between what the applicant said at his s. 11

interview (i.e. that a guard told him to go “to the gents” and put on women’s clothes) and at his appeal hearing and in his

affidavit where his evidence was that there are no separate facilities for men and women and in Sudan it is the same for

everyone. However unusual this averment is for an Islamic country, it was the applicant’s evidence at the appeal. The

question then posed by the Presenting Officer was “And the guard just allowed you to go into the toilet and then you

changed into the women’s clothes.” In the context of the evidence it seems to this Court that the Presenting Officer’s

statement/question is loaded with irony indicative of incredulity. The applicant’s complaint however is that the Tribunal

Member should have made it known that he personally found that evidence lacking in credibility.

42. The court is of the view that it is unreal to expect that a Tribunal Member dealing with an aspect of a claim which has

already been the subject of adverse findings by ORAC to say to the applicant “I find certain aspects of your evidence

simply not credible”. The question the court poses rhetorically is what purpose can be served by such an observation as

the questioning of the applicant is conducted by a presenting officer who represents ORAC. The Tribunal Member is not

the cross examiner nor is he conducting an investigation. He is determining an appeal where the applicant has the burden

of establishing that, contrary to what was recommended by ORAC, he is in fact a refugee. The whole purpose of alerting

such a person to matters which are of importance to a decision maker is to ensure fairness and to allow that person to

specifically direct his / her mind to addressing those matters before a determination detrimental to the person is made.

What purpose could have been served by the Tribunal Member saying “I find your story of escaping from a hospital where

you were under armed guard by changing into women’s clothes which were hidden in a toilet not credible”? No additional

COI could have advanced the story and it is highly unlikely that any witness could have been called to corroborate the

applicant’s story.

43. The applicant was fully aware that his narrative had been rejected by ORAC and he was, with the assistance of

counsel, alert to the task before him of filling in details which make the story of his arranged escape more probable. The

attendance note of the oral hearing indicates a clear line of cross examination which on the most benign reading is a

focused and effective line of questioning challenging the applicant’s assertions that he was a high profile prisoner who had

no contact with the Al Beja Congress while in prison but that members of the Congress regularly search this hospital as

prisoners are known to be brought there; that he was identified by Bashir who was the member of the Al Beja Congress

responsible for searching the hospital he was in; that Bashir spoke to him and told him that women’s clothes would be

hidden in the toilet for him.

44. The attendance note indicates that the Tribunal Member asked one question which was “But how did this person

manage to tell you that the clothes were in the toilet if you were under armed guard?” The response is recorded as

“Because the guard was not aware of what he said to me.” The next question “You were not allowed visitors in prison –

how come you were allowed visitors in the hospital” was recorded as eliciting no response.

45. The determination of credibility has been the subject of innumerable decisions in asylum matters. There is total

consensus on the two principles that where the Tribunal Member makes a specific adverse finding as to the applicant’s

credibility, this must be based upon reasons which bear a legitimate nexus to the adverse finding and that it is for the

decider of fact to determine the weight (if any) to be given to any evidence. The common sense approach expressed by

Herbert J. in Kikumbi v. The Refugee Applications Commission [2007] I.E.H.C. 11 (7th February, 2007), has much to

commend it:

“The probative value (if any), to be given to information or material properly received and considered by the

decider of fact may sometimes be ascertained by reference to the cogency of the account itself and the absence

of inherent contradictions and errors of substance in that account. Sometimes, it is possible also to compare

various elements of the account with extrinsic material which the decider of fact can accept or, which is admitted

to be reliable, viz., country of origin information from sources of proven and accepted accuracy and reliability,

such as United Nations Reports. Sometimes, however, there is no yardstick by which to determine whether a

particular account or part of an account is credible or not, other than by the application of common sense and life

experience on the part of the decider of fact in the context of whatever reliable country of origin information is

properly before him or her. Also, the decider of fact may have had the advantage of having seen and heard the

Applicant for asylum relating his or her story, making all due allowance for the various factors indicated by the

UNHCR Handbook as uniquely relevant to such an account giver. The obligation to give reasons, as explained by the

Supreme Court in F.P. and A.L. v. The Minister for Justice, Equality and Law Reform ([2001] 1 I.R. 164), does not,

in my judgment, require the decider of fact to give reasons why she or he applying such common sense and life

experience found that a particular account or aspects of such an account to be not credible.” (The Court’s

emphasis)

46. In applying those principles to the Tribunal Member’s evaluation of the account of the applicant’s escape from hospital

custody, I can identify no error of law or lack of procedural fairness. It was entirely a matter for the Tribunal Member to

determine the plausibility of the applicant’s description of his alleged escape. The assertions made by the applicant were

tested by the Presenting Officer. The applicant was given a reasonable opportunity to explain his position and the Tribunal

Member’s question “But how did this person manage to tell you that the clothes were in the toilet if you were under

armed guard?” should have made it perfectly clear that his narrative was met with a degree of incredulity. This should

have been sufficient to alert the applicant, if such warning could have been necessary, to address the issue. The court is

not satisfied that this criticism amounts to a challenge of substance.

* Inability to speak the language

47. The Tribunal Member stated in his decision that it was put to the applicant that COI indicates that the Beja people

have their own language and that he was asked if he spoke the language but he said no. The Tribunal Member also stated

that it was put to the applicant that if he was a member of the Al Beja Congress for a number of years, he should be able

to speak the Beja language. He went on to make an adverse credibility finding on that basis, finding that the applicant

had not given a plausible reason for his failure to speak the language.

48. In his grounding affidavit the applicant says that it was not put to him that as a member of the Al Beja Congress he

should have been able to speak the language. Counsel for the applicant also complained that the Tribunal Member failed

to record and consider the explanation given by the applicant at the oral hearing, which was that he said he was unable

to speak the language because Arabic was the common language used in the schools and universities and is spoken by

the younger people who do not generally speak the Tigré tribal language, which is spoken by older people. Counsel argued

that COI supports the applicant’s claim in this regard and he opened to the Court several passages of the material that

was before the Tribunal Member. Counsel contended that the Tribunal Member was obliged as a matter of fair procedures

to record and to consider the explanation given by the applicant and he submitted that it was not sufficient to state that

the applicant gave no plausible explanation for not speaking the language. Counsel further argued that although the

Tribunal Member appears to have attributed less weight to the absence of a plausible explanation in this regard than to

other negative credibility findings, there was nonetheless a breach of fair procedures.

49. Counsel for the respondents supported the validity of the finding that it was not credible that the applicant did not

speak the language in the light of the claim that he was involved with the Al Beja Congress for five years and where COI

indicates that the Beni Amer people speak Arabic as a second language but have retained Beja as their primary language.

Counsel further argued that there was no obligation on the Tribunal Member to set out the explanation given by the

applicant for not speaking the Beja language. Reliance was placed on Ndinda v. The Refugee Appeals Tribunal [2006]

I.E.H.C. 368, where Herbert J. held:-

“As a matter of general principle, while the Member of the Refugee Appeals Tribunal must comply with the ruling of

the Supreme Court, (F.P. & Ors. v. Minister for Justice, Equality and Law Reform [2002] 1 I.R. 164 at 172 per

Hardiman J.), as to the provision of reasons for the decision of the Refugee Appeals Tribunal, I agree with the

submission of Counsel for the Respondents that the Member of the Refugee Appeals Tribunal is not obliged, in his

decision, to note or to refer to every aspect of the evidence considered in reaching that decision.”

50. The court finds that the complaint made on the language does not relate to the substance of the finding but is rather

that the Tribunal Member failed to specifically say to the applicant that that his explanations were not found credible. The

court approaches the matter in the following way: COI is uniform in stating that the Beja speak their own language and

that a large number of them also speak Tigrinian or Tigre. While many young Beja are stated to also speak Arabic, it is

nowhere stated in the several sources opened to the Court and which were before the Tribunal Member that they no

longer speak Beja.

51. The Tribunal Member had been told that the applicant came from a small village of thirty houses and that his wife

worked with the caravan Beja. They both claimed membership of a Beja people’s movement. The applicant’s brother was

stated to be a Beja militant living close to the Eritrean border. Notwithstanding this Beja background the applicant was

unable to speak even basic Beja or Tigre and explained to the ORAC officer at interview that young Beja no longer speak

the language and speak Arabic instead. While the language issue does not seem to have been raised as a topic during the

oral hearing, it was dealt with in the bundle of documents which the Tribunal Member is obliged to consider. Ground 12 of

the applicant’s Grounds of Appeal appended to his Notice of Appeal read:-

“The Authorised Officers erred in law in concluding that the Appellant was unable to speak tribal languages entailed

that his evidence was not consistent or credible […]. The Appellant in fact has a very limited knowledge of Tigre

language. Arabic is in fact the primary language of one half of the population (see infra Submissions) and as a

University educated Sudanese student, the Appellant would have been accustomed to speaking Arabic only, that

was not acknowledged as relevant by the Authorised Officer at all.”

52. It was a matter for the Tribunal Member to evaluate this evidence and as has been stated so often there is no

obligation on any assessor of fact to put every single aspect of an applicant’s evidence to him or to record all the

answers. I adopt the reasoning on this aspect of the case of the judgment of Costello J. in Pok Sun Shum v. Ireland

[1986] I.L.R.M. 593, which has been followed as a general principle including recently by Hedigan J. in O. O. (a minor) &

Ors v. The Minister for Justice, Equality and Law Reform [2008] I.E.H.C. 307. In contrast to ORAC, the Tribunal Member

did not consider the applicant’s inability to speak the language necessarily fatal to the applicant’s claim even though he

found the explanations which were included in the appeal documents implausible. The finding was logical, reasonable and

based on evidence and the applicant’s challenge to that finding fails.

Cumulative Effect / Severability

53. The court has not identified any error or breach of fair procedures which individually or cumulatively raises a breach of

fair procedures or which undermines the integrity of the decision generally.

DECISION

54. The applicant told his story as to why he was fleeing persecution over two days before ORAC. His wife told a similar

story. Neither party was found credible before ORAC or on appeal. The Tribunal Member outlined his reasons in his lengthy

decision. The applicant argues that these reasons contained inaccuracies, errors and instances of constitutional

unfairness. However, looking at the decision either as a whole or taking each finding individually and setting that finding

against the applicant’s evidence it is found that there is little substance in his complaints.

55. Independent COI supports the negative findings made by the Tribunal Member on key issues and alleged discrepancies

between what the Tribunal Member found on minor issues (e.g. whether the wife’s version of events was specifically put

to the applicant) are not capable, in the absence of a transcript, of resolution. The main reasons why the applicant was

found not to be credible were not seriously in dispute but multiple individual findings were asserted to have been in error

and to have failed to reflect the actual evidence. The court examined each of those findings in turn. First, the dates of

the demonstrations provided by the applicant do not accord with COI. If this was the only discrepancy identified in the

applicant’s evidence it would seem harsh to find that he was not a refugee on this matter alone. It is also unlikely that he

would have failed because of minor discrepancies as to where his wife was in relation to him at the demonstrations in Port

Sudan or where they both were in the village of El Hassnab when the air and ground bombardment occurred. However

when these conflicts are set against other findings which bear on want of credibility such as the paucity of detail in the

applicant’s evidence relating to the size of the demonstration at which 35 demonstrators were killed, his seamless escape

from hospital while under guard as a high profile prisoner who had been rendered unconscious during torture, his inability

to speak his tribal language, the discrepancies on the nature and motive of the attack on his village among other aspects

of the evidence, then it becomes inescapable that the decision maker’s determinations were soundly based. The Tribunal

Member was entitled to assess the evidence that the applicant was, while in hospital under guard, visited by members of

the very political party he was associated with and which had been the cause of his detention and alleged torture and

find that aspect of his evidence not to be credible. The Tribunal Member was equally entitled to find that it was not

credible that a prisoner under guard in a hospital should be able to communicate with members of the Al Beja Congress

who could inform him that women’s clothes were being left for him in a toilet and to inform him of the password to use for

his arranged escape in a taxi. These last two reasons alone were sufficient to find the applicant not credible. It seems to

the court that on a question of practicality, even if the issues over which so much time was taken at this hearing such as

the dates of the demonstrations, the position of the applicant’s betrothed / wife in the house and at the demonstrations,

their inability to speak the language of the Beja tribe, the motive for the attack on El Hassnab were all severed from the

decision and the story told by the applicant was reduced to its basic components, the Tribunal Member would still be

acting reasonably and within jurisdiction when affirming the recommendation of the ORAC officer.

Conclusion

56. In the light of the foregoing, I am satisfied that the Tribunal Member did not act in breach of fair procedures and

natural and constitutional justice and accordingly, I refuse the reliefs sought.