O. (F.) v. Minister for Justice, Equality and Law Reform & Anor [2008] IEHC 213 (4 July 2008)

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Cite as: [2008] IEHC 213

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Neutral Citation: [2008] IEHC 213

THE HIGH COURT

2006 992 JR

BETWEEN

F. O.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM and

DAVID ANDREWS, SITTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

EX TEMPORE JUDGMENT OF MR. JUSTICE BIRMINGHAM delivered on the 4^th day of July 2008.

In this case, the applicant is a national of Nigeria who has sought asylum in this State. On 21^st April, 2006, the Refugee Applications Commissioner ("RAC") recommended that the applicant should not be declared a refugee. From that decision an appeal was brought to the Refugee Appeals Tribunal ("RAT") and an oral hearing was held. By decision dated 26^th July, 2006, the RAT affirmed the earlier decision of the RAC and refused the applicant's appeal. The applicant now seeks to challenge the RAT decision by way of judicial review.

Factual Background

The applicant states that she was living with her husband and six children in the Delta State. Her husband was originally an electrician but seems to have become involved with one of the oil companies and to have taken on a leadership role in the village, equivalent to that of Chief. It seems that he also became politically involved.

The applicant states that on one particular occasion in October or November 2005, a number of youths called to and broke into her family home. I would note at the outset that the applicant is very vague about dates, for reasons that I will come to. The youths removed the applicant's husband from their home, and his corpse was found later. Later that evening, the youths sought out the applicant and asked her to hand over her husband's documents, the whereabouts and nature of which were not known by the applicant. The applicant reported both incidents to the police. What transpired on foot of that report is the subject of some controversy or confusion, to which I will return.

Thereafter, the applicant fled Delta State and made her way south to Benin City, in Edo State. There, a Christian friend hid her and helped her to escape to Ireland. She left Lagos by air and then continued her journey by ship. She states that she does not know where the plane landed and where she boarded the ship. She says that she arrived in Ireland on 4^th February, 2006. She applied for asylum in the State by filling out an ASY-1 form on 23^rd March, 2006.

Before dealing in any detail with the decision or the grounds of challenge it is necessary to say that the applicant is said to be - and this seems to be the case - of limited intellectual ability, to be illiterate and to be unable to speak English other than Pidgin English. These factors are relevant to her difficulties with dates.

Procedural Background

It is necessary, in order to appreciate the basis of the RAT decision and the grounds on which it is challenged, to outline the contents of the ORAC questionnaire, interview and decision/recommendation, the applicant's Notice of Appeal and the RAT decision itself.

(i) The ORAC Questionnaire

The applicant completed the usual ORAC Questionnaire, or more accurately had the usual Questionnaire completed on her behalf. The applicant stated that a man she met in Moore Street, whom she had not previously known, completed the application for her. The applicant gives her date of birth as 7^th August, 1955. She explains that she is of Bini ethnicity, is a Christian, that Edo is her first language and that she also speaks Pidgin English. She completes question 16 by listing her six dependent children and giving their year and month of birth in each case. She indicates that the current whereabouts of her dependent children are unknown.

The applicant provides a full response to question 21, which asks why she left her country of origin, and indeed she makes use of an additional page for this purpose. In summary, she indicates that in late January, her husband, to whom she refers as 'Chief Osifo', and the rest of the family were sleeping when a group of youths burst into the house, dragged her husband out, and set the house ablaze. His body was later found, burnt beyond recognition. She indicates that her husband had been accused of collaborating with the oil company and of not making payments due to the community, while at the same time he had been accused by members of his political party of taking kick backs from the government and failing to share it with them. Of particular note is that as part of her answer, the applicant says that when the police came, she wrote a statement and that she identified three of the youth leaders who she saw pick her husband out that night. They were arrested, and bailed the same day.

She goes on to explain that later on the same night, the youths and their leaders came looking for her at a house that she was sharing with a family friend. She says that they "demanded me and my children, shouting they have no place in the community for traitors and their children". She states that she escaped through a window and went to the police station where the police told her to hand over any of her husband's documents, and that it was only in that way that they could help her. She was not in a position to do this because she did not have any documentation. The police alleged that her husband was "eating the community money for schools and hospital" and told her that there was nothing that they could really do to protect her.

Further on in the Questionnaire, the applicant states that her husband was a member of the Peoples Democratic Party (PDP) and a community chief in Bayesa State in the Niger Delta. In terms of her departure from Nigeria, the applicant stated that her church members organised money for a white man who worked in Nigeria to bring her to Ireland. When asked the full name and present address of her companion on her journey, she responded by saying "I call him Oga, he did not give me his address".

(ii) The ORAC Interview

The applicant attended for interview with ORAC on 6^th April, 2006. The interview was conducted in Pidgin English and there was an interpreter present. At the outset, when asked her date of birth, the applicant responded "I'm 45 but I can't remember the date". When it was pointed out to her that she had furnished a date of birth on the Questionnaire and asked whether it was correct, she responded "it is likely, it was calculated for me". She explains that her last address in Nigeria was with a church member in Benin City and that before that she was in Warri, in Delta. The applicant says that the man who completed her ORAC Questionnaire did not read to her what was written in it.

When asked whether the details set out in the Questionnaire about her children were correct, she responded "the first one is seventeen years (Dian). I had my children at intervals of one year". She confirmed her children's names but was unable to remember their exact dates of birth, saying "I'm not educated so I don't know, there is a year between them all". She explained that she ran and left her children behind and that she did not know their whereabouts at that stage.

She was then asked when her problems began in Nigeria, and responded "I really don't know how to calculate it but I think it was about five months before the celebration of Christmas in December last year". She stated that she could not remember when she left Nigeria, but thought that it was in the same month that she was arrested by the police in Ireland, just after she arrived. She claimed that the person who brought her to Ireland just dumped her in a busy area, and that she had been in Ireland for two weeks before being arrested. She says that during those first two weeks, she was just hanging around and spent the night anywhere. She says that she then met a lady from Nigeria to whom she told her story, who said that she would bring the applicant to the Department of Justice. This had not occurred at the point at which the applicant was arrested. When asked whether she was sleeping on the streets when she got to Ireland first, she responded that she was sleeping in people's homes, but at daybreak they would ask her to leave saying that they were afraid to keep her longer.

The applicant was then asked "what happened to make you leave Nigeria?" She responded by indicating as follows:

"My husband is a politician and belongs to a political party, and there is this business that they are into to do with oil business. He was in charge of the money and he was not cooperating with regard to disbursement of money and how it was to be shared and they were not happy with him and there was a fight and he was subsequently killed. They started chasing me and they wanted to kill myself and the children because they felt that I knew where he keeps the money."

She was asked what political group her husband was involved in and she responded that she could not remember. Her attention was drawn to the contents of the Questionnaire and her reference to the PDP, and she affirmed that was correct. She could not give any details about his role with the PDP, apart from indicating that he was a supporter, rather than a member. She was then asked about her husband's involvement with the oil company. She did not know the name of the oil company in question, which she said was because the husband did not tell her his secrets. When asked about the date that her husband was attacked she explained that she could not calculate it and that at the time, she was not really herself.

When the details of the evening that is supposed to have led to her departure from Nigeria were discussed with her, she initially stated that she did not know the people involved in the incident. The interviewer drew attention to the statement on the Questionnaire that she had identified the youths to the police in Nigeria. She responded by saying "we reported it to the police but they didn't take it serious". She went on to say that she did not know the names of the assailants who came in the night and that she did not recognise any of them. When it was pointed out that what she was saying now was in conflict with the Questionnaire, she responded that the man who had completed the Questionnaire for her had made a mistake, and that what she had told the police was that she suspected that the youths of the area must have killed her husband. She explains that she was targeted by local people because they thought that she would know where her husband kept documents. When asked specifically what the said police when she reported the matter, she stated that they requested the same documents that the youths had been looking for, and that they did not take the matter seriously because she could not produce any documents.

Asked where her children were when she fled, the applicant responded "I ran and left them there, I ran away from there. I just left them." The applicant explained that she was anxious to contact her children, but that she had not heard anything from them. She clarified that when she ran, she went to the home of to a church member in her home place of Benin and that she was not safe there because "they came to that place several times that's why the man had to bring me here". When asked whether she could go to another area and be safe, the applicant responded "there is nowhere there that they would not look for me".

(iii) The ORAC Decision/Recommendation

In the section 13 report, under the heading "Nationality Issues", the ORAC officer records that the applicant had submitted a copy of a certificate of identification containing her photograph as evidence of her identity. The officer notes that all of the documents submitted by the applicant were issued in Nigeria in March, 2006, that as the applicant had arrived in Ireland on 4^thFebruary, 2006, and that as these documents were apparently issued without her being present - especially in the case of the certificate of identification - the authenticity of the documents is open to question.

The officer notes that the 'testimony' given by the applicant at the interview differed from what was written in her Questionnaire, and that her account of events at the interview stage was "extremely vague". The officer also outlines a number of credibility issues. For example, the ORAC officer considers that doubts were cast on the applicant's credibility by her suggestion that she did not know or recognise the people who came into their home and took her husband, yet was able to say that the same people returned that night to threaten her life. This was also seen as undermining the validity of the applicant's statement that she told the police that she only suspected that it was local youths.

The ORAC officer observes that the applicant claimed that the police did nothing to help her because she could not produce as evidence any of the documents that the youths were looking for. The officer comments that this cannot be said to be a failure of the State to protect the applicant as it is apparent that the police were willing to help her, but were hampered through a lack of evidence.

The officer further considers it difficult to believe that the applicant would flee, leaving her children at the mercy of the local youths, who the applicant maintained threatened her children's lives as well as her own. The officer pointed out that the applicant must have spent some time with the church member in Benin, and that it would have been possible for her to have sent for her children during this time.

The officer was also of the view that it was unlikely that the local youths would have the inclination to pursue the applicant, as they would have had ample opportunity to search for the documents in the abandoned home. I will return to this when dealing with the RAT decision.

Overall, the officer found the applicant's account of events to be "vague and lacking in detail", and, noting the credibility issues outlined above, concluded that the benefit of the doubt could not be afforded to the applicant.

(iv) The Notice of Appeal

A detailed Notice of Appeal was submitted on the applicant's behalf on 24^th May, 2006 by her then legal advisors, the Refugee Legal Services ("RLS"). 26 grounds of appeal are very fully set out. The Notice of Appeal addresses the various areas where the applicants account is either rejected or doubted by ORAC. The consistent theme running through the entirety of the Notice of Appeal refers to the applicant's inability to read or write or to speak English, and her significant intellectual limitations. The Notice makes particular reference to her difficulties in calculating the dates on which the alleged events occurred.

(v) The RAT Decision

In his decision, as is usual, the Tribunal Member – Mr. David Andrews, S.C. – summarises the alleged facts and refers to questions posed at the RAT oral hearing. The Presenting Officer focussed first on the fact the applicant had no passport, driving licence or national identity card, and that there was a date adjusted on her birth certificate. She could not explain this. The Presenting Officer then put to the applicant that a further document had been presented from a Local Government Authority asking for every possible assistance to be given to her, both nationally and internationally. The applicant could not explain that particular request or the document generally. The Presenting Officer asked how long the applicant stayed in Nigeria after her family's encounter with the youths. The applicant responded that she had not stayed long, and that that the person who brought her to Ireland was a fellow Christian who she went to meet in her own home village, who she knew for a long time. It may be noted that this response does not fit easily with the applicant's assertion in her Questionnaire that a church member had organised for a white man who worked in Nigeria to bring her to Ireland, a man whom she called Oga but whose address she did not know.

In turning to the assessment for the applicant's claim, the Tribunal Member comments that the country of origin information has been studied in depth in the context of the applicant's credibility. He describes as 'extraordinary' the suggestion that a woman with six children would not at least ensure the safety of the children before seeking to save herself. He contends that it is not credible that a mother would leave her six children without, as a minimum, finding out whether or not they were safe. He also found it incredible that the applicant could have given the dates of the children's births, and then tell the RAT that it was really a matter for ORAC to calculate the dates of birth of her children. The applicant states that she gave birth on an annual basis. In that context, it is noteworthy that the dates of birth noted in the Questionnaire do not indicate that a year separated each of her children. Instead, the answer given to question 16 was that her six children were born in January 1989, March 1991, September 1993, July 1995, December 1997, and April 1999. On the basis of these dates, the applicant's youngest child, Jacob, would have been six years of age at the time of her departure from Nigeria.

The Tribunal Member notes that although the applicant first contented that the police did nothing about her husband's murder, she later stated that the youths responsible were arrested and bailed that very day. The Tribunal Member considered that this indicated that there must be an ongoing investigation, which was not complete at the time when the applicant left Nigeria. This conclusion is central to the challenge and is said, by the applicant, to be a fundamental error. The Tribunal Member also found it hard to accept, even in a situation where the applicant was unable to read or write, that she would not have known more about her husband's business activities and that she did not know the name of the oil company or the nature of the business in which her husband was engaged.

The Tribunal Member indicates that he had perused the papers, including the ORAC Questionnaire and interview and the oral evidence of the applicant at the RAT hearing, and that on that basis is satisfied that the authorities had sought to protect the applicant but that she left Nigeria before their investigations had been complete. Again, this conclusion is challenged in the present proceedings. The Tribunal Member further concluded that it appeared that the applicant was not very forthcoming when the police sought information in relation to the alleged murder of her husband.

The Tribunal Member suggests that the youths who were looking for the applicant's husband's documents might have been expected to ransack the abandoned house looking for the papers that they sought. This is similar to what was considered by the ORAC officer, which I noted earlier. Mr. O'Shea submits that this observation fails to take into account that the family home was set ablaze on the night on which her husband was abducted and murdered, a matter which the applicant had indicated at question 21 of her Questionnaire. It seems to me that there is merit in this argument.

The Tribunal Member went on to comment that the applicant's method of travel "was not properly explained and was presented in an unfocussed and rather unbelievable fashion." In addressing this issue, it seems that the Tribunal Member was, in effect, taking into consideration a matter mandated by section 11 B(c) of the Refugee Act 1996, as amended. Finally, the Tribunal Member affirms the earlier RAC recommendation, based on the following conclusion:-

"Altogether, the credibility of the Applicant left much to be desired and that her demeanour was not of a person who was credible."

The Issues in the Case

The Statement of Grounds sets out a very large number of grounds but, in accordance with the helpful indications of Mr. Paul O'Shea, counsel on behalf of the applicant, I would summarise the grounds on which the present challenge to the RAT is based as being threefold, namely that the Tribunal Member:-

a. Made a fundamental error of fact;

b. Failed to have regard to county of origin information that had been submitted / found that state protection would have been available;

c. Took an impermissible approach to the assessment of credibility.

(a) Fundamental Error of Fact

The applicant's contention that the Tribunal Member made a fundamental error of fact, is based on the following assessment, contained in the RAT decision:-

"[The applicant] claimed in the first instance that the police did nothing about her husband's murder, but it now subsequently emerged, according to the evidence, that the youths were arrested and let out on bail, so there must be an ongoing investigation. The Applicant left Nigeria before that investigation had been completed."

Mr. Paul O'Shea, counsel for the applicant, submits that this is fundamentally at variance with the applicant's contention that the police asked to hand over her husband's documents, and that when it emerged that she was unable to do so, they told her there was nothing they could do to help her.

Ms. Emily Farrell, counsel on behalf of the authorities, submits that if the RAT decision is read as whole, there was, in fact, no error of fact. She suggests that the Tribunal Member is referring to the manner in which the evidence emerged at the oral hearing before the Tribunal. She points to a portion of the RAT decision that recites the facts as they emerged.

I think that there must be a real possibility that Ms. Farrell is correct in that regard. However, in the absence of a transcript or even a note of the proceedings as to what happened at the RAT oral hearing, it seems to me that it would be quite wrong to speculate on what exactly was said, having regard to the importance of the issues at stake. Nevertheless, even if one excludes from consideration the possibility that the Tribunal Member was merely summarising the evidence as given at the hearing, significant inconsistencies emerge if one has regard to the various accounts given at Questionnaire and interview stages and at the oral hearing. If the decision is read as whole, the Tribunal Member was certainly adverting at least to those inconsistencies and the manner in which the applicant's account evolved.

I have set out at some length - excessive length it might be thought - the progress of this application, from first contact with the ORAC to the hearing of the oral appeal before the Tribunal, in order to establish the reality of the context in which the Tribunal Member was called on to make a decision and the circumstances in which he came to the decision that he did.

(b) Treatment of country of origin information

The second ground on which the present challenge is based is the applicant's contention that the Tribunal Member failed to have regard to country of origin information that had been submitted by the applicant's then legal advisers. The information submitted comprised:-

(1) Human Rights Watch Overview of human rights issues in Nigeria;

(2) Amnesty International report on Nigeria (January – December 2004).

The Human Rights Watch report referred to the conflict in the Niger Delta. Under the heading "Niger Delta: oil, human rights and violence", it observes:-

"The oil-rich Niger Delta in the south of country remains the scene of recurring violence between members of different ethnic groups competing for political and ethnic power, and between militia and security forces sent to restore order in the area. Violence between ethnic militias often occurs within the context of clashes over control of the theft of crude oil. This violence is aggravated by the widespread availability of small arms, a problem which exists throughout Nigeria but is particularly acute in the Delta. Despite a robust military and police presence in the region, local communities remain vulnerable to attack by militias, criminal gangs, and the security forces themselves. Oil companies rarely speak out publicly about such abuses; indeed, some of their own practices have contributed to ongoing conflict in the region."

The Amnesty International report is to the same effect as the HRW report. Under the heading "Conflict in the Niger Delta", it reports as follows:-

"There was continuing violence in the Niger Delta and reports of the excessive use of force by security forces or law enforcement officials. Many hundreds of people were reportedly killed in the Delta, Bayelsa and River States in 2004. The economic, social and cultural rights of the people in the Niger Delta – the main oil-producing region in the country – continued in general to be unfilled, leading to increasing frustration and tension both within and between communities. The situation was exacerbated by the easy availability of guns in the region. Oil company employees and assets, such as pipe lines, were frequently targeted for attack and sabotage."

The Tribunal Member has not referred directly to these or other extracts at any stage in his decision. However, he introduces the section of his decision that constitutes an "Assessment of the Applicant's Claim" by stating specifically that:-

"The country of origin information has been studied in depth in the context of the Applicant's credibility."

In addition, in the course of the 'Decision' section, the Tribunal Member comments that he has perused the documents submitted. He then goes on to list eight matters that he specifically considered, including "all country of origin documentation furnished."

In G.K. v The Minister for Justice, Equality and Law Reform [2002] 2 IR 418, Hardiman J. stated (at page 426-427) that:-

"A person claiming that a decision making authority has, contrary to its express statement, ignored representations which it has received must produce some evidence, direct or inferential, of that proposition before he can be said to have an arguable case."

In a series of cases starting with decision of Feeney J. in Banzuzi v The Refugee Appeals Tribunal & Anor [2007] IEHC 2, the High Court has confirmed that there is no obligation for a Tribunal Member, in the course of a decision, to refer to every aspect of evidence or to identify all documents to which it is referred.

Counsel on behalf of the applicant says that there is, indeed, inferential evidence in the present case that the documentation submitted was not considered by the Tribunal Member. He contends that the country of origin reports clearly demonstrate that there were serious difficulties in relation to State protection for someone in the applicant's position. Essentially, he says that the country of origin information is so clearly relevant that no reasonable decision-maker who had considered it could have failed to refer to its relevance.

I am unable to agree. It is well known to anyone who reads the foreign news pages of the daily newspaper that there is significant turmoil and insecurity in the Delta region. This must be very well known indeed to those who deal with asylum cases, many of them originating from Nigeria, on a daily basis. The Tribunal Member has stated more than once in explicit terms that he had regard to the country of origin information. That being so, as Herbert J. pointed out in D.K. v The Minister [2006] 3 IR 368, it was for the Tribunal Member, and not for this Court in a judicial review application, to determine the weight, (if any) to be attached to the country of origin information.

In sharp contrast to the situation that I had to consider in T.G. v The Refugee Appeals Tribunal [2007] IEHC 377, the present case was not one in which the documentation submitted was so directly on point and so critical, in the circumstances, as to call out for a specific assessment. In T.G., the Tribunal Member overlooked a US State Department report on Togo submitted by the applicant with his Notice of Appeal, which appeared to support the applicant's claim and to directly contradict a Canadian country report relied on by ORAC and by the Tribunal Member. The country of origin information that was submitted to the Tribunal Member in the present case was general in character and did not add greatly to the sum of what is informed general knowledge.

(c) The Assessment of Credibility

The final ground on which the RAT decision is criticised is that the Tribunal Member had insufficient regard to her limited intellectual ability when assessing the applicant's credibility and, in particular, when assessing her inability to give her children's dates of birth. Counsel on behalf of the applicant says that the applicant's educational and intellectual background, and the fact that as a result, a stranger filled in her Questionnaire on her behalf, put into perspective certain of the inconsistencies that arise in her account of events at different stages of the asylum process. It is pointed out that this is a matter to which there were repeated references in the applicant's Notice of Appeal.

The Tribunal Member does, in fact, explicitly note the submission from the applicant's Legal Representative as to the "unusual situation" of the applicant's illiteracy and limited understanding. In my view, the Tribunal Member was in the best possible position to determine the relevance of the applicant's intellectual ability, and, indeed, to determine the extent in which her limited abilities were a fact, as distinct from an assertion. The Tribunal Member commented that the credibility of the applicant left much to be desired and that her demeanour was not that of a person who was credible. As has been pointed out in very many decisions of this Court, the Tribunal Member has at his disposal when making decisions the invaluable tool of being able to observe the demeanour of the applicant. The Tribunal Member presided over the oral hearing and observed the applicant throughout. To require him to recite that he had reached his views in relation to credibility notwithstanding submissions in respect of her intellectual state would be to require the Tribunal Member to engage in tokenism.

Conclusion

In my view there was ample material before the Tribunal Member on which he could reach the conclusion that he did. I can find nothing in the procedures followed that undermine the integrity of the decision. Accordingly, I refuse this application.

Approved: Birmingham J.

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