High Court grants leave to challenge Refugee Appeals Tribunal decision on credibility assessment grounds.

Neutral Citation Number [2009] IEHC 481

THE HIGH COURT

JUDICIAL REVIEW

2008 15 JR

BETWEEN

V. F. A. A.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

AND

REFUGEE APPEALS TRIBUNAL

RESPONDENTS

Judgment of Mr. Justice John Edwards delivered on the 6th of November, 2009

1. This is an application for leave to apply for an order of certiorari and various other reliefs by way of judicial review with

the primary objective of quashing a decision of the second named respondent dated the 12th December, 2007 in which

the second named respondent affirmed an earlier recommendation of the Refugee Applications Commissioner made in

accordance with s. 13 of the Refugee Act 1996, as amended (“the 1996 Act”) that the applicant should not be declared a

refugee. The Tribunal member concluded that the applicant had not established that she has a well-founded fear of

persecution as defined by the 1996 Act.

2. The applicant’s background is set out in s. 3 of the Tribunal member’s decision as follows:-

“The applicant was born in Cameroon in 1975, is married and the mother of two dependants who are living in

Cameroon. After her formal education, she went to Nigeria for two years and on her return, worked for two years.

She claims she does not know where her husband is and her two children are catered for by relatives. She claims

that when she was nineteen, she joined a party called the Social Democratic Front (SDF) and she was also a

member of a separatist group called the Southern Cameroon National Council (SCNC). This latter group is seeking

separation from French Cameroon. She did not have a specific post in either of these parties and one of her

medical reports indicates that her involvement was at a relatively low level.

She is basing her claim for status on three events in Cameroon. In 1997, she alleges that the SDF, which she joined in

1994, and is a legal opposition party, were celebrating an anniversary. She claims the police intercepted their group and

intimidated them and states she suffered a blow to the back of her head and afterwards the rally dispersed. For six years

nothing further happened and in 2003 she claims she was in a gathering of 20 - 30 people, who were walking and singing

on the day of the funeral of the chairman of the SCNC. They were met by a local police who antagonised them and the

crowd reacted. The police arrested the applicant and others and forced them to walk to the local police station which

was seven miles away. They were released and warned to discontinue their membership of the SCNC as it was an illegal

organisation.

The next event occurred in September, 2004 when the applicant and others were returning from a memorial service for an

SDF member. On their way home towards Limbe, they were stopped at a checkpoint because they had emblems of the

SDF on their car. The applicant and three other members were taken from the car, arrested and driven to the police

station. Four of them were separated and she was stripped to her underwear and isolated in a cell. She was there for

three days and on the second day, the security guard said that he could help her to escape when she offered to give him

money. However, during the night of second day in detention, another man came into the cell with a gun and raped her.

On the third day, the prison guard whom she had an arrangement with opened the window in the cell and she escaped

through it. On the outside it was arranged that she would meet a woman who took her to Douala and the applicant

stayed with that woman’s daughter. The next day, the applicant’s father in law rang the house and said that the police

had come with a warrant for the applicant’s arrest. The applicant and her father in-law decided she should leave the

country because of the arrest warrant. The applicant spent two weeks in the woman’s house. She left Douala and

travelled here via Holland and the U.K. She claims that since she came here, photographs of her injured husband were

sent and she submitted them. She claims her husband was beaten up by the State Authorities. When she was pressed

further on the whereabouts of her husband, she said that she was told he was hiding in North Cameroon. The applicant

submitted a letter from the SDF, a letter from the SCNC and an arrest warrant to support her claims.

The presenting officer referred to the arrest warrant. It states that a complaint was made on 15th September, 2004 that

the applicant had participated in an SDF demonstration. The applicant was asked where she obtained this warrant and

she said that her father-in-law bribed the police officer to obtain it.”

3. The applicant is now in Ireland and has sought asylum here on the basis that she has a well-founded of persecution on

the grounds of her political opinions. Her case was considered by the Refugee Applications Commissioner who concluded

that the applicant’s claim of having suffered persecution in Cameroon lacked credibility in a number of aspects. In

particular, the commissioner was of the view “that the applicant had failed to credibly show overall that she would be

targeted for persecution”. The commissioner stated that from an investigation of the applicant’s account, it did not

appear that the applicant qualified for refugee status. The possibility that she would suffer persecution on return to

Cameroon appeared to be negligible. In all the circumstances the commissioner recommended that the applicant should

not be declared a refugee on the basis that she had failed to establish a well-founded fear of persecution in accordance

with s. 2 of the 1996.

The applicant duly appealed against the s. 13 report and recommendation of the refugee applications commissioner to the

Refugee Appeals Tribunal.

4. The substantive portion of the decision rendered by the Tribunal member are set out in Parts 6 and 7, respectively,

under the headings “Analysis of the Applicant’s Claim” and “Conclusion”. It is appropriate to recite it in full:-

“6.Analysis of the Applicant’s Claim

The applicant presents as articulate, competent, educated and well able to communicate without the assistance of an

interpreter. She claims that because of her association with the SCNC and the SDF she was subject to persecution in

Cameroon. She stated in 1997 that a riot broke when the police intercepted a rally and she received a blow to the head.

Nothing further happened the applicant until 2003 when she claimed and others members of SCNC were going to a funeral

but on their way, they were detained for a number of hours during which time the applicant was subjected to pressure to

undertake physical tasks and after encountering this ordeal, she was allowed to go free. The applicant said it was an

SCNC event. As that party is illegal in Cameroon, the police were within their rights to intercept it. She told the tribunal

that a quarrel arose when the crowd were told they were going to be arrested. Whilst the over-reaction of the police

cannot be justified, they nonetheless released the applicant and her colleagues after a number of hours. The tribunal is

satisfied this was not persecution.

The final event which the applicant claims was responsible for her leaving her family and coming here occurred in 2004.

She claims that she was attending a condolence visit to the family of a member of the SDF who had died and the police

stopped the car which had SDF emblems on it. The occupants, including the applicant, were questioned and a quarrel

broke out between them and the police. The applicant gave conflicting evidence in relation to why she feels she and

others were arrested. She initially stated the arrest took place because of the emblems on the car. She later stated she

did not know whether it was because of a quarrel with the police or not. In any event, she and her colleagues were

arrested and detained. She claimed she was detained in a cell by herself for three days and on the second day, she was

raped. She gave conflicting evidence in relation to how she managed to leave the cell. In the early part of her application,

she said that she was locked up and on the third day she went to urinate, “I saw the toilet window open and I had to

escape for my life. As I was running, I saw a sympathetic woman that helped me to her house. I explained everything

that had happened to me and I lived in her daughter’s house for two weeks”. The applicant went on to say that this lady

decided to help her to go to Ireland in order to save her life. However, in the later part of her application she

reconstructed her evidence and said that she escaped out the toilet window that was left open by the guard and he

made arrangements for her to meet a lady and this lady collected the applicant and brought her to Douala. She was

unable to reconcile the difference in her stories and whilst it is not detrimental to her claim the tribunal is satisfied it goes

to her credibility.

The applicant then went on to tell the tribunal that she stayed with this lady for two weeks during which time she was in

touch with her father-in-law who told her that an arrest warrant was issued as the police came to their home looking for

the applicant. This purported arrest warrant was put in evidence. It relates to the applicant being summoned for failing to

appear to answer a charge of participating in an SDF demonstration. As the SDF is a legitimate political party in Cameroon

and consequently can operate openly and freely, the authenticity of this arrest warrant is questionable. Further, when

asked how she obtained it, the applicant replied that her father-in-law bribed the authorities to obtain it. This document

was sent to her after she arrived here. Without engaging the conjecture it is difficult to accept that anyone would bribe

the authorities for a copy of the warrant except to embellish a claim. The tribunal is satisfied that having had the benefit

of hearing the applicant give her evidence and being cross-examined, this detail was an improvisation which she made in

order to explain an account was clearly not credible. Further, the applicant advanced a purported letter from the SDF and

one from the SCNC organisations, both supporting her application for refugee status. The authenticity of these letters

cannot be verified. It is the case with all documentation that they are secondary evidence used to support the claim that

the applicant is making. The tribunal will therefore weigh such evidence in the light of the applicant’s overall testimony.

The applicant spent two weeks in Cameroon after her alleged escape and during that time made no attempt to get in

touch with either of these organisations or indeed to find out the fate of her colleagues who allegedly were arrested with

her.

There were a number of medical documents put in evidence, one from St. Brigid’s Community Centre, one from Dr. Noel

Sheppard and a SPIRASI report dated March, 2007. The first report states the applicant was depressed and had suicidal

tendencies. The second report is dated November, 2006 and is more detailed stating that the applicant presented as an

out-patient in a Waterford Hospital with depression and refers to the applicant identifying the principle reason for her

ailment as being the alleged arrest and sexual assault in Cameroon in 2004. That report suggested that her mood had

shown improvement and her on-going involvement in the legal proceedings are a factor in her depression. The SPIRASI

report refers to her physical examination and states that certain marks could be consistent with her story. The report

concludes by saying she is suffering from moderately severe depression with symptoms of PTS. The tribunal must consider

all the medical reports in the light of the Istanbul Protocol.

Looking at the appeal in the round, the tribunal is satisfied the applicant did not suffer persecution. The event in 1997

when the applicant came back from Nigeria and was involved in a riot, suffered a blow to the head, and was treated by

traditional medicine is not persecution.

The next event occurred six years later in 2003, when she was part of a group dressed in SCNC t-shirts and carrying

SCNC flags for an illegal organisation. The police intercepted this walk, causing a quarrel between them and the group. As

SCNC is an illegal organisation, the authorities were within their rights to prohibit such a demonstration however, they

were not entitled to hand out gratuitous punishment to the group before deciding to let them go free.

The next event occurred in 2004. The applicant claims that she and others were detained at a road block and she gave

conflicting evidence as to why she and others were arrested. However, she claims that she was detained for three days

during which time she alleges she was raped. The claim of rape made is difficult for the applicant to substantiate or for

the tribunal to accept or reject with any degree of certainty. In any event, if she suffered this ignominy, it was an

isolated incident perpreted by one person. After her release, the applicant spent some time in Cameroon and as somebody

who claims to be involved in SCNC and SDF, the tribunal does not find it credible, taking all the country of origin

information into consideration, that during this time she made no attempts to contact either of these large and influential

parties for help or to highlight her allegations but instead took a disproportionate step based upon an alleged warrant to

leave her husband and children to travel here.

The applicant left Cameroon, to travel to Amsterdam, London and Belfast on her way here but did not seek international

protection in any of these places. O’Leary J. in the High Court stated that the tribunal must consider s. 11B of the 1996

Act when assessing credibility. The tribunal finds that the applicant has not provided a full and true explanation of how

she travelled to and arrived in this State. Even if she has provided a full and true explanation of how she arrived in the

State, which I do not accept she has, I am satisfied that the applicant has not provided a reasonable explanation to

substantiate her claim that the Irish State is the first safe country in which she has arrived since departing from her

country of origin or habitual residence. I am satisfied that the applicant’s failure to seek asylum in any country, other than

Ireland, although she passed through intervening countries, is not consistent with a intention to flee from one’s pursuers

and therefore the concurrent imperative to seek safety wherever one can.

Overall, the tribunal find that the applicant has not established a well-founded fear of persecution.

7. Conclusion

The tribunal has considered all relevant documentation in connection with this appeal including the Notice of Appeal,

country of origin information, the applicant’s Asylum Questionnaire and the replies given in response to questions by or on

behalf of the Commissioner on the report made pursuant to s. 13 of the Act.

Accordingly, pursuant to s. 16(2) of the Act, I affirm the recommendation of the Refugee Applications Commissioner made

in accordance with s. 13 of the Act.”

5. Counsel for the applicant, Mr. Diarmuid Rossa Phelan S.C., has sought to criticise the Tribunal member’s decision on a

number of grounds. He contends that it exhibits a failure on part of the Tribunal member to properly consider all of the

relevant material that was before him. Further, he contends that the decision exhibits an element of pre-judgment on the

part of the Tribunal member. He further says that it is irrational and not properly reasoned.

Counsel urged the court to consider what must the applicant must think, if what she told the tribunal is true, having been

met with this decision. He urged that that the applicant was entitled to have all relevant facts taken into account and

that this decision manifestly failed to do that. He further submitted that attacks on her credibility must be fair and

capable of being tested. He suggests that the tribunal engaged in unfair speculation or conjecture to the prejudice of his

client. Further, he suggested that relevant country of origin information had not been taken into account.

He further urged that the decision is plainly wrong in its treatment of the warrant, in its treatment of the medical

evidence, in its treatment of the rape allegation and in its consideration of how the applicant conducted herself in coming

to this country.

6. Counsel for the respondent argued strenuously that all relevant evidence was in fact taken into account. He further

submitted that there were a number of reasons why the applicant had failed. First, that the Tribunal member had doubts

about the credibility of several aspects of the applicant’s story and, secondly, she had failed to establish a well founded

fear of persecution if returned to Cameroon. He submitted that although the Tribunal member’s decision was legally sound

the applicant was attempting to deconstruct it ex post facto in the hope of impugning it on some spurious basis and this

was to be deprecated.

7. Before examining each of the allegations that have been made by counsel for the applicant, it is appropriate for the

court to refer to the recent decision of Mr. Justice Cooke in the case of R. v. The Minister for Justice Equality and Law

Reform and the Refugee Appeals Tribunal [2009] IEHC 353 as I believe that it an important decision in the circumstances

of the present case, particularly in so far as it concerns a review of the credibility assessment of the applicant carried out

by the Tribunal member.

In paragraphs 1 to 7 of his judgment in R. Cooke J. succinctly describes the problems and difficulties faced by a primary

decision maker in the asylum sphere in assessing the credibility of oral testimony given by an applicant. Further, he refers

to the statutory provisions and guidelines relating to the process that he or she is required to follow in assessing claims to

refugee status and to subsidiary protection. Then, later in his decision, having reviewed a total of seventeen of the most

frequently cited cases relating to the process of credibility assessment, he sets out (at para. 11) ten principles distilled

from those cases as a guide to the manner in which evidence going to credibility ought to be treated and to assist in any

review of conclusions on credibility to be carried out. I think it may be particularly helpful in the present case to quote

paras. 1 to 7 inclusive of the decision in R. and then to quote para 11 setting out the ten principles distilled by Mr. Justice

Cooke from the case law. The learned judge said:-

“1. In most forms of adversarial dispute the assessment of the credibility of oral testimony is one of the most

difficult challenges faced by the decision-maker. The difficulty is particularly acute in asylum cases because,

almost by definition, a genuine refugee will be someone who has fled home in circumstances of stress, urgency

and even terror and will have arrived in a place which is wholly strange to them; whose language they do not

speak and whose culture may be incom-prehensible. Inevitably, many will have fled without belongings or

documentation from areas in a state of anarchy or from the regimes responsible for their persecution so that

obtaining any administrative evidence of their status and even identity may be impractical, if not impossible.

2. In such cases the decision-makers at first instance have the unenviable task of deciding if an applicant can be

believed by recourse to little more than an appraisal of the account given, the way in which it was given and the

reaction of the applicant to sceptical questions, to the highlighting of possible discrepancies or to contradictory

evidence from other sources. Recourse will also be had in appropriate cases to what is called “country of origin

information” but in most cases this will be of use only in ascertaining whether the social, political and other

conditions in the country of origin are such that the events recounted or the mistreatment claimed to have been

suffered, may or may not have taken place.

3. It is because in such cases the judgment of the primary decision-maker must frequently depend on the personal

appraisal of an applicant, that it is not the function of the High Court in judicial review to reassess credibility and

to substitute its own view for that of the decision-maker. Its role is confined when a finding of lack of credibility is

attacked, to ensuring that the process by which that conclusion has been reached is legally sound and not vitiated

by any material error of law.

4. While the problems inherent in the lawful assessment of testimony and other evidence going to credibility arise

in a variety of forms of litigation and in other areas of judicial review, the guiding principles of the law have

received particular attention in the case law relating to asylum in this jurisdiction and elsewhere in recent years

and are possibly so well known to practitioners in the field as to have little need of resumé by this Court at this

stage.

5. The background to that case law and the starting point for the decision-makers is, of course, the statutory

provisions and guidelines relating to the process which they are required to follow in assessing claims to refugee

status and to subsidiary protection. Both the Commissioner and the Tribunal in this jurisdiction are required by s.

11B of the Refugee Act 1996 to have regard to the thirteen particular matters listed at paras. (a) to (m) of that

section when assessing credibility. For the most part these are factors or indicators which any experienced

adjudicator will have in mind as a matter of common sense such as the truth of the explanation given as to how

an applicant travelled to the State; why asylum was not sought in safe countries traversed en route and the use

of forged documents for the making of false representations.

6. That mandatory check list is supplemented by the more pedagogic requirements of regulation 5 of the European

Communities (Eligibility for Protection) Regulations 2006 which both prescribe matters to be taken into account in

assessing facts and circumstances and, in subs. (2) and (3) give guidance as to the evaluation of persecution or

serious harm already suffered and as to the circumstances in which aspects of statements unsupported by

documentary or other evidence will not require confirmation.

7. Furthermore, authoritative guidance as to the approach to be taken in evaluating claims, in handling the burden

of proof and according the benefit of doubt to an applicant is given in the UNHCR Handbook on Procedures and

Criteria for Determining Refugee Status (Geneva, 1992) (see in particular the section “Establishing the Facts” at

paras. 195-205).”

Then at para. 11 the learned judge says:-

“11. So far as relevant to the issues dealt with in this judgment it seems to the Court that the following principles

might be said to emerge from that case law as a guide to the manner in which evidence going to credibility ought

to be treated and the review of conclusions on credibility to be carried out:-

(1) The determination as to whether a claim to a well founded fear of persecution is credible falls to be made

under the Refugee Act 1996 by the administrative decision-maker and not by the Court. The High Court on judicial

review must not succumb to the temptation or fall into the trap of substituting its own view for that of the

primary decision-makers.

(2) On judicial review the function and jurisdiction of the High Court is confined to ensuring that the process by

which the determination is made is legally sound and is not vitiated by any material error of law, infringement of

any applicable statutory provision or of any principle of natural or constitutional justice.

(3) There are two facets to the issue of credibility, one subjective and the other objective. An applicant must first

show that he or she has a genuine fear of persecution for a Convention reason. The second element involves

assessing whether that subjective fear is objectively justified or reasonable and thus well founded.

(4) The assessment of credibility must be made by reference to the full picture that emerges from the available

evidence and information taken as a whole, when rationally analysed and fairly weighed. It must not be based on a

perceived, correct instinct or gut feeling as to whether the truth is or is not being told.

(5) A finding of lack of credibility must be based on correct facts, untainted by conjecture or speculation and the

reasons drawn from such facts must be cogent and bear a legitimate connection to the adverse finding.

(6) The reasons must relate to the substantive basis of the claim made and not to minor matters or to facts

which are merely incidental in the account given.

(7) A mistake as to one or even more facts will not necessarily vitiate a conclusion as to lack of credibility

provided the conclusion is tenably sustained by other correct facts. Nevertheless, an adverse finding based on a

single fact will not necessarily justify a denial of credibility generally to the claim.

(8) When subjected to judicial review, a decision on credibility must be read as a whole and the Court should be

wary of attempts to deconstruct an overall conclusion by subjecting its individual parts to isolated examination in

disregard of the cumulative impression made upon the decision-maker especially where the conclusion takes

particular account of the demeanour and reaction of an applicant when testifying in person.

(9) Where an adverse finding involves discounting or rejecting documentary evidence or information relied upon in

support of a claim and which is prima facie relevant to a fact or event pertinent to a material aspect of the

credibility issue, the reasons for that rejection should be stated.

(10) Nevertheless, there is no general obligation in all cases to refer in a decision on credibility to every item of

evidence and to every argument advanced, provided the reasons stated enable the applicant as addressee, and

the Court in exercise of its judicial review function, to understand the substantive basis for the conclusion on

credibility and the process of analysis or evaluation by which it has been reached.”

8. The Applicant’s Complaints

The applicant’s specific complaints may be summarised by means of the following bullet points:

• An alleged failure to consider all aspects of the applicant’s personal story;

• An alleged failure to have proper regard to available country of origin information;

• An alleged failure to have proper regard to the medical evidence submitted;

• Errors of fact arising from a combination of the inaccurate quotation of information supplied by the applicant,

and language difficulties;

• Alleged speculation and conjecture concerning the circumstances surrounding the issuing, and the subsequent

procurement of a copy, of the arrest warrant.

• An alleged failure to have proper regard to letters submitted from the SDF and SCNC

• Allegedly unfair criticism of the applicant’s behaviour after her escape based on more speculation and

conjecture, and the failure to afford her the benefit of the doubt having regard to her claim of having been raped

in police custody just a short time previously.

• The refusal to recognise the alleged rape incident as persecution.

9. Alleged failure to consider all aspects of the applicant’s personal story.

The first complaint made by the applicant is that there was a failure on the part of the Tribunal member to properly

consider all aspects of the applicant’s personal story. Contrary to what is asserted in the decision the applicant was not

just relying on the three events mentioned by the Tribunal member. She was also relying on the burning of her family

home five years previously (referred to in answer 21 on her questionnaire); on occasions of alleged torture, arrest and

detention of fellow SDF/SCNC members, and on the arrest of her elder brother.

It is certainly true to say that the decision does not refer to the burning of her family home or to the arrest of her elder

brother. However, the core story as recounted by the Tribunal member does refer to episodes of alleged harassment of

the applicant and of her family/associates on account of their membership or association with the SDF and/or the SCNC.

It seems to this Court that a failure on the part of the Tribunal member to mention all of the incidents related by the

applicant in her story, or some aspects thereof, is not in itself of great significance. The important thing is the

appreciation by the Tribunal member of the essence of the core complaint. The Court is satisfied that the Tribunal

member fully understood the core complaint.

10. Alleged failure to have proper regard to country of origin information.

The applicant’s second complaint is that the Tribunal member failed to have proper regard to available country of origin

information. In particular, the applicant complains that the Tribunal member was operating under a fundamental error of

fact in his belief that the SDF can operate openly and freely. The applicant says the country of origin information

demonstrates that the SDF operates under severe constraints and is the subject of persistent harassment by Government

forces. The applicant says that COI information demonstrates that SDF supporters are arbitrarily detained and their public

gatherings are obstructed by the security forces (see in particular the UK Operational Guidance Note on Cameroon 2005

and the US Department of State report on Human Rights Practices in Cameroon in 2005). The latter document is in fact

relied on by the respondents because it states:

“Unlike in the previous year, there were no reports that security forces broke up or disrupted gatherings of the

Social Democratic Front (SDF) an opposition party, during the year.”

However, as counsel for the applicant points out, the applicant’s story relates to 2004 and the years prior to that and

accordingly the State Department Report would tend to actually support the applicant’s claim rather than undermine it.

The applicant contends that country of origin information amply demonstrates that although freedom of assembly is

notionally guaranteed in Cameroon, it is widely ignored in practice, and the security forces continue to arrest and detain

citizens arbitrarily.

The Court has read all of the country of origin information submitted in this case and is satisfied that this is fair comment.

10. Further, the applicant says that country of origin information, and in particular, the UK Home Office Operational

Guidance Note on Cameroon 2005, establishes that prison conditions in Cameroon are harsh; that prisoners are regularly

tortured, beaten and otherwise abused; that corruption among prison personnel is widespread and that prisoners can

sometimes bribe wardens for special favours or treatment. She contends that the type of harassment and abuse that the

applicant claims she was subjected to, as well as her recourse to bribery of the prison guard for the purpose of escaping,

and her father-in-law’s recourse to bribery of an official to obtain a copy of the warrant so that it could be produced to

the Tribunal, are behaviours that fit comfortably with, and are wholly consistent with what is known about, the country of

origin. However, the applicant claims that the Tribunal member failed to have regard to this.

11. The Tribunal member expressly states in part 7 of his decision, under the heading “Conclusion” that he considered all

relevant documentation including country of origin information. In G.K. & Ors. v. The Minister for Justice, Equality and Law

Reform & Ors. [2002] 2 I.R. 418, Hardiman J. said:

“A person claiming that a decision making authority had, contrary to its express statement, ignored

representations which it had received needed to produce some evidence, either direct or inferential, of that

proposition before he could be said to have an arguable case.”

In the circumstances of this case I am not satisfied that the Tribunal member’s decision was consistent with the general

thrust of the country of original information adduced. There are therefore substantial grounds for arguing that it is

reasonable to infer that the Tribunal member did not have adequate regard to that material, notwithstanding his assertion

to the contrary.

12. Alleged failure to have proper regard to the medical evidence submitted

The applicant also complains that the Tribunal member failed to have regard to the medical evidence before him. The

Tribunal member specifically mentions the medical reports adduced and summarised their findings. In particular, he notes

that the SPIRASI report refers to her physical examination and states that certain marks could be consistent with her

story. Further, he notes that that report concludes by saying “she is suffering from moderately severe depression with

symptoms of PTS”. He states “The Tribunal must consider all the medical reports in the light of the Istanbul Protocol”.

The applicant first of all quibbles with the Tribunal member’s statement that “certain marks could be consistent with her

story” (the Court’s emphasis). Counsel for the applicant points out that what the SPIRASI report actually says is that

these marks “are” consistent with her story. I think that this is a question of semantics and I am not impressed with this

point. I am satisfied that the Tribunal member adequately appreciated the import of the SPIRASI report on this narrow

issue.

However, the applicant’s counsel also makes the further point that although the Tribunal member stated that he must

consider the medical reports in the light of the Istanbul Protocol, he did not in fact proceed to do that. Having carefully

considered the terms of the Tribunal Member’s decision I think it must be inferred that the Tribunal member did in fact

have regard to the Istanbul Protocol. Under that Protocol the characterisation of injuries as “consistent” with the stated

history means that they were “possibly caused by the conduct complained of but there are many other possible causes”.

This is to be contrasted with the characterisation of the injuries in a case relied on by the applicant, namely, T.M.A.A. v.

The Refugee Appeals Tribunal & Anor. [2009] IEHC 23, as being “typical of” burns inflicted by a cigarette. As pointed out

by Mr. Justice Cooke in paragraph 5 of his judgment in T.M.AA, the qualification “typical of” is defined in the Istanbul

Protocol as being an appearance “usually found with the type of trauma described although there are other possible

causes”. He goes on to state:

“6. In the scale of causation of this protocol, this designation is second highest.”

Then, in paragraph 19 and 20 he goes on to say:

“19. It is clear of course that the mere presence of the lesions and their being judged medically to be ‘typical of

cigarette burns’ does not in itself prove the truth of the applicant’s claim that they were sustained as a result of

the violence of the three men who interrogated her.

20. But the exercise which the adjudicating authority is required to carry out and to explain is to evaluate the

totality of the information available; to weigh in the balance the different elements that tip in one direction and

the other and to come to a conclusion as to the credibility of the evidence as a whole. It seems to this Court that

where there is a physical piece of evidence that is capable of being related to the events complained to have

happened by the applicant, the obligation is, first of all, to take that into account and then secondly, to explain in

the decision whether any significance was thought to attach to it at all and if not, why it is discounted against the

other factors that are taken into account as elements that embellish a story otherwise based upon public facts.”

It seems to me that the present case is very different from the T.M.A.A. case. In the T.M.A.A. case the medical evidence

had a very much higher probative value than the evidence in the present case. Having regard to the low probative value

of the medical evidence in the present case, I do not consider that there was a specific obligation on the Tribunal member

to deal with it in the sort of detail described by Mr. Justice Cooke in the T.M.A.A. case. Given that he specifically referred

to the medical evidence in his decision, and that he acknowledged that his duty was to consider it in the light of the

Istanbul Protocol, I am satisfied that it can be inferred in the circumstances of this case that he duly did so. That said,

we can not know precisely what weight, if any, the Tribunal member in fact attached to the medical evidence. Having

regard to the characterisation of the medical findings as “consistent”, and the relatively low position of such evidence on

the Istanbul protocol scale, the Tribunal member would have been perfectly justified in attaching relatively little weight to

such evidence in the present case, although it certainly merited being afforded at least some weight for the reasons

discussed at para 17 below. However, as regards the specific complaint under the present heading, I am not satisfied that

substantial grounds have been established for challenging the decision.

13. Inaccurate quotation of information and language difficulties.

Counsel for the applicant also pointed to an inaccurate quotation by the tribunal member of the account given by the

applicant in her questionnaire concerning her escape from custody. She said in her questionnaire that “I saw the toilet

window opened and had to escape for my life” (the Court’s emphasis). As recounted by the tribunal member she is alleged

to have said “I saw the toilet window open and I had to escape for my life”. Counsel for the applicant submits that if this

sentence is read correctly, the conflict which the tribunal member perceived between the account given by the applicant

in her questionnaire, and the account given by her later at interview is more perceived than real. Further, some reliance

was placed on alleged language difficulties experienced by the applicant. While the applicant does speak English it is not

mainstream English but rather Cameroonian Pidgin English. It was submitted that inadequate allowances were made for

this.

14. As pointed out by Mr. Justice Cooke it is not for the High Court to substitute its own view for that of the primary

decision maker. The High Court is concerned only with reviewing the process by means of which the credibility assessment

was made. While it does seem to be the case that the tribunal member misquoted the highlighted sentence from reply No.

21 on applicant’s ASY1 questionnaire, this error would not of itself necessarily vitiate the tribunal member’s conclusion as

to the overall credibility of the applicant. While the misquotation may be relevant to the question as to whether the

window was serendipitously open, or whether it was deliberately opened by a guard who had been bribed, it is important

in this regard to bear in mind that this was not the only inconsistency in the applicant’s story. The following further

inconsistency was perhaps of equal or even greater significance. In her first account, the applicant related how, after she

had escaped from her cell through the window, she was running away when she encountered a sympathetic woman. The

clear impression conveyed was that this was a chance encounter. Upon meeting this woman the applicant explained

everything that had happened to her and, as a result of hearing this, the woman assisted the applicant by bringing her to

her (i.e. the woman’s) house. This woman then allowed the applicant to live there for a number of weeks before helping

her to flee the country. One is therefore led to believe that the applicant serendipitously encountered a Good Samaritan

after escaping through the window. However, in the second account furnished by the applicant, she contends that she

met a lady by pre-arrangement, a prison guard having made this arrangement for her in return for a bribe. It is clear from

this account that the lady was expecting her and, that being so, would probably have been told about the applicant’s

difficulties in advance. The lady in question collected the applicant at a pre-arranged place and then brought her to

Douala.

These two accounts are prima facie inconsistent and contain ostensibly irreconcilable differences. In the Court’s view,

notwithstanding the misquotation complained of, the tribunal member was nevertheless entitled, on the evidence before

him, to hold that:

“She was unable to reconcile the difference in her story and whilst it is not detrimental to her claim, the tribunal is

satisfied it goes to her credibility”.

Accordingly, the Court is also not satisfied that substantial grounds to challenge the decision have been made out under

this heading.

15. Alleged speculation and conjecture by the Tribunal Member.

Counsel for the applicant also complains that the Tribunal member was unfair to the applicant in dismissing certain details

of the applicant’s story as not being credible, namely the circumstances surrounding the issuing, and the subsequent

procurement of a copy, of the arrest warrant produced in evidence. He contends that the Tribunal member, relied on

baseless speculation and conjecture for the purpose of doing so, and notwithstanding that those aspects of her story

were in fact capable of being tested for external consistency using available country of origin information if proper regard

had been had to such information.

Counsel for the applicant points in the first instance to the sentence that reads:

“As the SDF is a legitimate political party in Cameroon and consequently can operate openly and freely the

authenticity of this arrest warrant is questionable.”

He says that the tribunal member was fundamentally wrong in his assertion that the SDF can operate openly and freely.

The court has already held that the applicant is prima facie correct in this contention. However, Counsel maintains that

this was more than a simple misunderstanding of evidence properly considered. He contends that, having regard to what

is known about Cameroon from available country of origin information, the mere fact that the SDF is not proscribed could

not in any circumstances justify an inference that it can operate openly and freely. However, the Tribunal Member has,

without evidence and in the teeth of country of origin information to the contrary, speculated and conjectured that it can

operate openly and freely. The Tribunal Member’s view seems to be based only on the fact that the organisation is not

proscribed. In Counsel’s submission this finding is not merely erroneous, it is irrational. The Court agrees with this

submission.

Counsel then goes on to complain about the next several sentences which read:

“Further, when asked how she obtained it, the applicant replied that her father-in-law bribed the authorities to

obtain it. This document was sent to her after she arrived here. Without engaging in conjecture, it is difficult to

accept that anyone would bribe the authorities for a copy of a warrant except to embellish a claim. The tribunal is

satisfied that having had the benefit of hearing the applicant give her evidence and being cross-examined, this

detail was an improvisation which she made in order to explain an account which was clearly not credible”.

Counsel for the applicant again contends that this passage exhibits a complete disregard on the part of the tribunal

member for the key elements of the applicant’s story on the basis of speculation and conjecture, notwithstanding that

they are capable of being tested for external consistency against what is known about the country of origin. Moreover, it

is ironic, says Counsel, that the Tribunal member eschews “engaging in conjecture” when that is precisely what he does.

Counsel submitted that available country of origin of information suggests that officials are bribed all the time in

Cameroon. Moreover, the procurement of a potentially important piece of evidence, admittedly by means of bribery, to

support the applicant’s claim was without any justification pejoratively characterised as the embellishment of the

applicant’s claim.

In considering this submission the court is very mindful of the admonition contained in point no. 8 of the ten principles

enunciated by Cooke J. in R., namely, that when subjected to judicial review a decision on credibility must be read as a

whole and the court should be wary of attempts to deconstruct an overall conclusion by subjecting its individual parts to

isolated examination in disregard of the cumulative impression made upon the decision maker especially where the

conclusion takes particular account of the demeanour and reaction of an applicant when testifying in person. As

previously stated, Counsel for the respondent has argued that Counsel for the applicant is doing exactly that. Having said

that, it does seem to me that the Tribunal member’s conclusions appear to be predicated on two significant

misconceptions about the country of origin, namely his belief that the SDF can operate openly and freely, and an

apparent lack of appreciation of the endemic nature of corruption in Cameroonian Society and the prevalence of bribery

within that culture. On balance, I am satisfied that the applicant has established substantial grounds for challenging the

decision under this heading.

16. Alleged failure to consider letters submitted from SDF and SCNC

There is a further complaint that the tribunal member did not have proper regard to the letters from the S.D.F. and from

the S.C.N.C. submitted in support of her application for refugee status. In this regard the tribunal member commented

that the authenticity of those letters could not be verified, that they constituted secondary evidence in any event and

that the tribunal would weigh such evidence in the light of the applicant’s overall testimony. This court does not regard

that approach as being objectionable in principle.

17. Unfair criticism of the applicant’s post rape behaviour and the refusal to recognise the alleged rape incident as

persecution

The applicant further takes issue with the following criticism levelled at her by the tribunal member. He said

“The applicant spent two weeks in Cameroon after her alleged escape and during that time made no attempt to

get in touch with either of these organisations” (referring to the SDF and SCNC) “or indeed to find out the fate of

her colleagues who allegedly were arrested with her”.

He later went to say, after referring to her allegation that she was raped while in custody, that:

“In any event, if she suffered this ignominy, it was an isolated incident perpetrated by one person. After her release, the

applicant spent some time in Cameroon and as somebody who claims to be involved in SCNC and SDF, the tribunal does

not find it credible, taking all of the country of origin information into consideration, that during this time she made no

attempt to contact either of these large and influential parties for help or to highlight her allegations but instead took a

disproportionate step based upon an alleged warrant to leave her husband and children to travel here”.

According to counsel for the applicant this conclusion is irrational, and untenable for the following reasons. First, it takes

no account of the horror of rape for a woman. It was pointed out that in our catalogue of crimes, rape is second only to

murder and it is regarded as a particularly heinous crime. This is true and indeed Finlay C.J., giving judgment in Supreme

Court in the case of The People (D.P.P.) v. Tiernan, [1998] I.R. 250 commented that: “ it is not easy to imagine the

circumstances which would justify departure from a substantial custodial sentence for rape”, thereby reflecting the view

that Irish society regards rape as a particularly reprehensible crime. Counsel for the applicant says that the Tribunal

member did not discount the possibility that the applicant could be telling the truth about being raped. That much is clear

from his assertion that “if she suffered this ignominy, it was an isolated incident perpetrated by one person”. However,

Counsel further submits, notwithstanding that the Tribunal member did not discount the possibility that she may indeed

have been raped, there was no engagement by him with the possibility that the applicant may have been severely

traumatised in the aftermath of her rape. This is so notwithstanding that he had had submitted to him medical reports,

the existence and contents of which he has acknowledged, to the effect that (i) the applicant is suffering from

moderately severe depression with symptoms of post-traumatic stress, and (ii) that there were marks on the applicant’s

body which were said to be consistent with her stated history. The Court agrees with Counsel for the applicant that there

are substantial grounds for arguing that the decision was irrational for the reasons that have been advanced under this

heading.

Further, counsel for the applicant takes serious issue with the tribunal member’s assertion that if the applicant did suffer

the ignominy of rape, it was an isolated incident perpetrated by one person. According to counsel this completely

disregards the fact that the rape that the applicant claims was perpetrated upon her is said to have occurred while she

was in the custody of the State and against the background of her arbitrary detention for having being involved in

activities associated with, or connected with, her membership of organisations that oppose the ruling government.

Although the tribunal member claims to have taken all of the country of origin information into account, counsel submits

that the overwhelming thrust of the country of origin information is to the effect that opponents of the government in

Cameroon are shown scant respect by the security forces and are regularly detained and sometimes abused in a manner

similar to that described by the applicant. In particular the U.S. State Department report on Human Rights Practices in

Cameroon, 2005 records that the Government of Cameroon’s human rights record remained poor and the government

continued to commit numerous serious human rights abuses. Among the human rights violations reported were regular

incidents of torture, beatings and other abuses of persons (and in particular of detainees and prisoners) by the security

forces; the arbitrary arrest and detention of Anglophone citizens advocating secession, of local human rights

monitors/activists and other citizens; prolonged and sometimes incommunicado pre-trial detention; restrictions on

freedoms of speech, press, assembly and association; widespread corruption and violence, including rape, and

discrimination against women.

The court again finds itself in agreement with much of counsel’s submission in this regard, and I am further satisfied on

account thereof that the applicant has established substantial grounds for challenging the Tribunal member’s decision..

18. In his judgment in T.M.A.A. v. The Refugee Appeals Tribunal and Another, [2009] IEHC 23, Mr. Justice Cooke stated:-

“… if the court on reading the decision and having regard to the totality of the material which was available to the

court, finds that it is unable to understand the basis upon which the conclusion has been reached, or that

apparently material factors have been discounted, then the statement of reasons in the decision is possibly

defective.”

I think that those remarks are particularly apposite in this case. This is only a leave application and the issues raised have

not been fully argued. Nevertheless it does seem to the court that it is difficult to understand the exact basis upon which

the tribunal member has arrived at his decision in this case that the applicant is not credible in general. I hold this view

notwithstanding the unresolved inconsistencies relied on in part by the Tribunal member, and also the s. 11B matters that

he was obliged to have regard to, because to be valid an assessment of credibility must be carried out by reference to

the full picture that emerges from the available evidence. There are substantial grounds for believing (i) that there were

factors of which account may have been improperly taken, e.g. matters based on error of fact, speculation or conjecture,

and (ii) other factors of which proper account was not taken. In particular, I find it difficult to understand how some of

the conclusions reached were arrived at, having regard to the overwhelming thrust of the available country of origin

information.

19. In all the circumstances of the case I am disposed to grant the applicant leave to apply for judicial review. The

applicant is granted leave to seek the reliefs claimed in Part D of her Statement of Grounds on the grounds advanced in

paras. 1 to 19 inclusive of what is clearly intended to be Part E of her Statement of Grounds. This section which, as I

have said, is clearly intended to be Part E is mislabelled as Part “a”. However, it is clearly intended to be Part E.

I am not disposed to grant leave on the grounds set out in paras. 20 to 24 as I am not satisfied that the applicant has

met the threshold of establishing substantial grounds in respect of these matters.

20. In so far as the applicant seeks an extension of time in this matter I am disposed to grant her the necessary

extension of time, being satisfied, as I am, that the interests of justice require an extension in this case and that the

applicant has demonstrated good reasons for not filing her appeal in time. In that regard I have had regard to the

contents of the affidavit of Finbarr Phelan sworn on 10th January, 2008 explaining why the proceedings herein were not

commenced within the time limits specified in s. 5 of the Illegal Immigrants (Trafficking) Act, 2000. I accept Mr. Phelan’s

explanations and consider that they provide the court with the necessary good reason for extending the time. I will

reserve the question of costs.