BAO v Minister for Justice and Others

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Respondent/Defendant:Minister for Justice, Equality and Law Reform, Refugee Appeals Tribunal, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2015] IEHC 701
Nature of Proceedings:Judicial Review
Judgment Date/s:17 Jun 2015
Judge:Faherty J.
Category:Refugee Law
Keywords:Refugee
URL:https://www.courts.ie/acc/alfresco/928b53d2-3fad-4f44-ac8c-b07be2e4162e/2015_IEHC_701_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicant was a Nigerian national who claimed to be a leading member of the Niger Delta Youth Forum (“NDYF”). In March, 2006 a friend of his, who was general secretary of the NDYF and a computer programmer, was hired by a named politician to clean his computer system of viruses. In the course of his work, his friend came across information which linked the politician to the Movement for the Emancipation of Niger Delta (“MEND”), showing that he was helping it to purchase arms. He discussed this with the applicant. Later, the applicant learned that he had been detained by the police and he never heard from him again. The police then arrested, detained and tortured the applicant. He told them nothing. He was bailed by his uncle. A week later, some youths, whom he believed to be involved with MEND, burnt his house down and killed his uncle. He managed to escape, after which he went to Lagos. However, when he was there, two men tried to drag him into a car; he was injured but escaped. He subsequently left Nigeria for Dubai. There he met an agent who gave him a false passport and travelled with him to Ireland, where he claimed asylum.

Having investigated his claim, the Refugee Applications Commissioner made a negative recommendation on it, which was affirmed by the Refugee Appeals Tribunal, whose decision the applicant challenged in these proceedings.

The Tribunal rejected his claim on credibility grounds. First, it noted that he did not mention in his ASY1 form being in possession of any information about MEND and the politician. The applicant contended that he only gave a brief summary of his claim in the form.

The court quashed the Tribunal’s decision.

Reasoning:
The court observed that around eleven days after completing his ASY1 form, the applicant completed a questionnaire which set out the central basis of his claim for asylum, namely that he was perceived to be in possession of information which linked a named politician to MEND. In its view, the Tribunal placed an unfair emphasis on the ASY1 form, particularly when the questionnaire constituted the basis for the investigation of an asylum claim under the Refugee Act 1996. It therefore struck down this credibility finding.

Secondly, the Tribunal considered implausible the applicant’s disclosure at the hearing that other government ministers were involved in the matter. He claimed that he had been afraid to mention it at an earlier stage, being in fear of his life. The court upheld the Tribunal’s finding in that regard.

Thirdly, the Tribunal was not satisfied of the applicant’s knowledge of local government areas in Delta State based on his answers to questions put to him. The court upheld this finding too.
Fourthly, the Tribunal did not consider the applicant’s explanation for the lack of documentary evidence of his travel to the State to be plausible, namely that he had given it to the agent who had travelled with him. It considered that if he was genuinely in fear of his life, he would have claimed asylum at the frontiers of the State.

The court, however, held that the explanation given by the applicant was not unreasonable, and set aside that finding.
Finally, the Tribunal referred to the manner in which the applicant answered questions put to him by it when setting out the matters it had taken into account when rejecting his appeal. The court held that no discernable reason existed for that statement, and that fairness required that the Tribunal should have summarised those parts of the applicant’s evidence or answers which were found to constitute a deliberate attempt to confuse the evidence. It set aside that finding.

Decision:
As three of the five adverse credibility findings were unsound, the court decided to quash the decision, it being impossible for it to discern what weight the Tribunal had attached to the three findings in question.

Principles:

When assessing credibility on an application for refugee status, a decision-maker should not necessarily draw negative inferences based on discrepancies between the ASY1 form and the questionnaire.

In deciding whether to set aside a decision for flaws in a credibility analysis containing a number of findings, a court should refrain from doing so unless it is unsure what weight has been attached to the various findings.

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