Ireland - F.O. (Nigeria) H.O.O (Nigeria)(an infant suing by his mother and next friend F.O.) -v- Minister for Justice, Equality and Law Reform, the Refugee Appeals Tribunal, Ireland and the Attorney General

Country of Decision:
Country of Applicant:
Date of Decision:
17-12-2015
Citation:
F.O. (Nigeria) -v- Minister for Justice, Equality and Law Reform & ors [2015] IEHC 816
Court Name:
High Court (Eagar J.)
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Headnote: 

The case dealt primarily with the standard of reasoning required in credibility assessment among other issues (travel findings and best interests of the child). In quashing the RAT decision, the High Court ruled that the RAT had not met the standard of reasoning required in assessment of the credibility of oral testimony (as established in the jurisprudence of the Court and EU law), reiterating the obligation upon the decision maker to ensure that each negative credibility finding is accompanied by an adequate rationale clearly outlining the reasons for such findings.

Facts: 

The case concerns the appeals of two Nigerian applicants, a mother and son, who claim a fear of persecution based on the grounds of political opinion and membership of a particular social group. The first-named applicant, the mother, gave evidence on behalf of herself and her child. Their asylum application was based on threats and attacks arising out of her husband’s membership of the Movement for the Emancipation of the Niger Delta (MEND) where he refused to engage in some of their activities. The applicant was beaten by members of MEND and threatened and she was took captive and held for eight dates at an unknown location where she was beaten and subject to rape. She subsequently escaped and claimed asylum in Ireland where she also gave birth to her son.

The applicant claimed that her life would be in danger if returned to her country of origin on account of the ongoing threat by MEND members and due to a concern that under Ishan tradition, her rape will be treated as adultery, in which case she may be taken before a shrine and cursed. Furthermore, the applicant claimed that the life of her son would be placed at risk due to the inadequacy of medical treatment in Nigeria. Their application was first dealt with by the Refugee Applications Commissioner, who made a recommendation that refugee status be refused on the basis of negative credibility findings, which was upheld upon appeal to the RAT in a decision dated the 10th May 2010.

Decision & Reasoning: 

This judgment was a telescoped application for an order of certiorari in respect of the Refugee Appeals Tribunal (RAT) to affirm the decision of the Refugee Applications Commissioner that the applicant not be declared a refugee.

The applicants in the case based the substance of their challenge on the argument that the Tribunal erred in its approach to credibility assessment. The grounds were that the Tribunal erred in law and breached the principles of fair procedures and natural and constitutional justice a)in the manner in which it assessed the applicant’s claim and in particular her credibility; b) in failing to adequately assess the availability of state protection to the applicant in Nigeria c) in failing to give (adequate) reasons for the decision and in engaging in conjecture in the evaluation of the applicant’s claim; d)in arriving at conclusions regarding the applicant’s credibility without allowing the applicant to be heard; e) failure to have regard to the notice of appeal and supporting documentation submitted by the applicant.

In its decision, the Court focused primarily on a number of the Tribunal’s credibility findings and the finding in relation to the treatment available to the child in Nigeria. The Court noted that its own duty was limited as the Court has no function to express any view as to the evidence presented to the Tribunal. . Drawing on jurisprudence, the Court outlined the obligation on the decision maker to ensure that any negative credibility findings are supported by adequate reasons for those findings. In particular, the Court used the approach to review the adequacy of reasons as set out in R.O. & Anon. v. the Minister for Justice [2012] IEHC 573, which requires asking the following questions:

“i. Were reasons given or discernible for the credibility findings?

ii. If so, were the reasons intelligible in the sense that the reader/addressee could understand why the finding was made?

iii. Were the reasons specific, cogent and substantial?

iv. Were they based on correct facts?

v. Were they rational?” (para. 45)

The Court noted that it was well settled jurisprudence that the decision maker is obliged to give reasons. With regards to the fact that the applicant failed to disclose the information that she had been beaten and raped while held in captivity until her Tribunal hearing but not at previous interviews, she claimed that it was on account of her fear of being subject to a curse that is placed on women from her culture who are victims of rape. The Tribunal stated that it was not considered credible that the applicant would deliberately withhold information, in the Irish jurisdiction, in relation to her claim because of such fears. While the Court found this reasoning intelligible, it was not deemed substantial or rational in the context of the type of sexual violence the applicant claimed to have experienced and found it reasonable that the applicant would deliberately withhold information of such trauma (Para 46).

The applicant claimed that her husband joined MEND in the year 2000. However, it was put to the applicant that country of origin information (COI) indicated that the group emerged in late 2005 and did not exist at the time the applicant alleged her husband became a member and found the applicant’s claim to be incredible. The Court points out that the evidence based in the applicant’s testimony indicates that she only became married to her husband in 2005, after which point she discovered his involvement with MEND.  For a negative credibility finding to be based on documentary evidence as to the exact date of MEND’s establishment “is not something which can be laid at the feet of the applicant who is recounting what she was told by her husband whom she married in 2005 when the organisation was clearly in existence”(Para. 47). In view of the fact that the Tribunal’s finding did not take into account the evidence put forward in the applicant’s testimony, the Court found the Tribunal’s reasoning to be irrational.

The Tribunal submitted that an inconsistency in the applicant’s description of the weapons which were used in the alleged attack that took place in November 2006 amounted to a negative credibility finding. The Court, however, found that the omission of being hit with the head of a gun, having already described being beaten with sticks and cutlasses, is not such a significant difference to reasonably justify a negative credibility finding.

Regarding the Tribunal’s finding that it was not credible that the applicant could pass through three international aiports and (a) not know where she was arriving/going to, nor (b) make any enquiries upon arrival at an aiport, the Court emphasises that travel findings are peripheral.  The evidence provided by the applicant, that she travelled with an agent who provided her with an EU passport, is consistent with common testimony of persons applying for asylum in Ireland. There was nothing to suggest that the applicant came to Ireland in any other way and the Court found that this finding, in particular, “flies in the face of the experience of the Refugee Appeals Tribunal” and is therefore completely irrational.

The Tribunal Member stated that she found the applicant’s manner of answering questions to be vague and evasive, suggesting a deliberate attempt to confuse the evidence.  However, no examples of such behaviour were submitted by the Tribunal. The Court found that without any substantial reasoning, a finding of vague or evasive behaviour could not be regarded as being based on either correct facts or rationality.

Regarding the claim that the applicant’s son would be in danger due to the lack of availability of proper treatment for his condition in Nigeria, the Tribunal stated that there was nothing to suggest that he would be discriminated against on any grounds within the meaning of the Convention as to the treatment available to him in Nigeria. Nonetheless, the Court held that the Tribunal Member is under a duty to fully consider the welfare of the child and considering that there was no alternative evidence submitted that would suggest that appropriate medical treatment would indeed be available to the child in Nigeria, found that the Tribunal had not considered the child’s best interests in its decision.

Based on the above reasoning, primarily that the Tribunal Member had failed to meet the standard of reasoning required for the negative credibility findings, the Court decided to grant the applicants leave.

Outcome: 

Leave granted and Tribunal decision quashed; case is remitted for reconsideration before a different member of the Tribunal.

Observations/Comments: 

This case is important with respect to its emphasis on the standard of reasoning/rationale required when conducting a credibility assessment. The judgement consolidates rationale from previous credibility cases, such as the ten indicia for assessment of credibility outlined in I.R. v Minister for Justice, Equality and Law Reform [2009] and the approach to review of the adequacy of reasons set out in R.O. & Anon. v. the Minister for Justice [2012].

Furthermore, the Court reiterates the role of travel findings in credibility cases as being peripheral to the applicant’s own testimony, in line with EU law on assessment of facts (Article 4 of the Qualifications Directive). 

Other sources cited: 

UNHCR Handbook on Procedures and Criteria for Determining Refugee Status 

Case Law Cited: 

Ireland - Danga v Minister for Justice, Equality and Law Reform, delivered on the 20th February, 2015

Ireland - State (Sweeney) v Min. for the Environment [1979] I.L.R.M. 35

Ireland - O’Donoghue v An Board Pleanála [1991] ILRM 750

Ireland - Mulholland v An Bord Pleanála (No. 2) [2006] IR 453

Ireland - R.O. v. Minister for Justice Equality and Law Reform and R.A.T [2012] IEHC 573

Ireland - I.R. v Minister for Justice, Equality and Law Reform [2009] IEHC 353.

Ireland - Omidiran (an infant) v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 20th December 2012)

UK - Y v Secretary of State for the Home Department [2006] EWCA Civ 1223