D.A. v The International Protection Appeals Tribunal & Anor (Approved)

As Hogan J. explained (at para. 61) in R.A, the Tribunal concluded that the Applicant could not have been at risk because of his basic lack of knowledge of certain details concerning the political state of affairs in the Ivory Coast in 2011 and the nature of the conflict between various factions. The learned judge went on to state: “ The premise of the adverse credibility finding was that anyone who had in fact participated in these political activities would have had a far greater knowledge of the relevant detail than this Applicant appeared to have had”. It was in the foregoing context that Hogan J. held that it was incumbent on the Tribunal to assess the documentary evidence.

The factual position in this case and the role of COI information in the decision are utterly different to R.A. Throughout his questionnaire, the Applicant made clear that he had reported nothing to the police. Moreover, he clearly stated that this would have been pointless, not because he did not trust the police, but because the latter are afraid of involvement in spiritual matters. As the Tribunal accurately noted in its decision, the Applicant subsequently gave materially different accounts.

The premise of the adverse credibility finding was entirely different to that in R.A and involved no unresolved tension with aspects of country of origin information or the medical reports. The premise underpinning the Tribunal’s decision in this case was that the Applicant could not be believed as at different stages he gave what were materially different and inconsistent accounts; incoherent explanations; and was someone willing to offer a new explanation whenever it was pointed out that a previous explanation was incoherent (alleged lack of trust in the police being only one of many different reasons proffered by the Applicant in a belated effort to try to explain inconsistencies identified). Moreover, that adverse credibility finding was not reached on the basis of a ‘papers-only’ appeal, but in circumstances where the Tribunal saw and heard the Applicant and could observe his demeanour and, having done so, also found him to have been evasive and hesitant in his evidence. The foregoing was the substantive basis for the Tribunal’s conclusion as to the Applicant’s credibility and the process by which it was arrived and the evaluation conducted by the Tribunal can be readily understood by any objective reading of the decision as a whole. This was a materially different decision to that in R.A. in which the Applicant did not give different and inconsistent accounts or incoherent explanations, nor was found to be evasive and willing to change his evidence. In short, COI information had a very different significance in R.A. due to the very different premise for the decision.

In the present case, again unlike the situation in R.A., the Tribunal did refer to the documentary evidence, comprising both COI information and medical reports, in its decision. There can be no doubt about the fact that the Tribunal considered same. I am entirely satisfied that in the present case the Tribunal member complied, in full, with the principles outlined by Cooke J in I.R. in the manner in which they were commented upon by the Court of Appeal in R.A. In the present case, the Tribunal assessed the Applicant’s credibility based on a consideration of all evidence which was before the Tribunal. In other words, the evidence does not support a finding that credibility was assessed in a ‘vacuum’ divorced from any consideration of the documentary evidence. It is clear that the entirety of the evidence was considered ‘in the round’ and the Tribunal’s credibility findings emerged after a fair and rational analysis of same.

I reject the contention, which is advanced on behalf of the Applicant in the present case, that the Tribunal was under an obligation, which it failed to discharge, to set out a fuller analysis of the documentary evidence. On the facts of this case there was no additional but undischarged obligation flowing from the ratio of or obiter guidance given in R.A. Furthermore, and contrary to what is asserted in the Applicant’s submissions, the Tribunal did not make any ‘finding’ that the Applicant lacked trust in the police. Rather, in the manner dealt with at para. [4.29] of the decision, the Tribunal considered whether a lack of trust in the police would reasonably explain non-reporting.

This is not a situation where the Applicant consistently claimed that he did not report anything to the police because he did not trust them, but the Tribunal found the police to be trustworthy having regard to country of origin information and the foregoing represented the premise of the Tribunal’s decision. If that were the position (and it is not) the Tribunal might well have had an obligation to provide a fuller explanation as to how the Tribunal had dealt with the documentary evidence. In short, on the particular facts of this case, I am satisfied that purported reliance on R.A . cannot avail the Applicant in this case.

As I turn to look at the “second area” in respect of which adverse credibility findings were reached, I wish to make clear that I do so because this was the sequence followed by the Applicant’s counsel in oral submissions. This should not be taken as conveying the impression that an analysis of parts of a decision as if they were hermetically–sealed and stand-alone is legitimate. It is not. The Tribunal’s decision comprises a unitary whole and must be read as such. On the Applicant’s account he left Ghana because he was in fear for his life following a serious assault perpetrated by his family and he travelled to South Africa via Swaziland. The Applicant also claimed to have left South Africa and returned to Ghana on 1 June 2018. The section 35 report contains inter alia , the following questions and answers (see pages 14 and 17):

Despite the submissions made on behalf of the Applicant to that effect, this was not a situation where the Tribunal simply found the Applicant’s reasons to be “ insufficient”. To suggest this is for the Applicant to zone in on a single word and to construct an argument which seems to me to both involve over-scrutiny of how the Tribunal member expressed himself and to ignore the substance of the decision, read as a whole. At the heart of the Tribunal’s finding was not the adequacy of a specific reason or reasons, but the multiplicity of same and the incoherence of the Applicant’s shifting account as well as findings (seen with reference to the reporting to the police issue) that he was evasive and hesitant and willing to offer new explanations. With regard to the return to Ghana issue, the Tribunal’s finding that the Applicant provide d multiple reasons for his return from South Africa to Ghana is, without doubt, factually correct. It is also factually correct that those different reasons comprised (i) difficulty with accommodation in South Africa; (ii) illness; (iii) a desire to sell his shop; and (iv) lack of money.

It is clear that underpinning the adverse credibility findings concerning his return to Ghana was the fact that the Applicant gave multiple different reasons for his return and the Tribunal’s view that his return to Ghana undermined the core claim and the credibility of the Applicant’s account. The foregoing seems to me to be the adverse credibility finding which was open to the Tribunal to make, having regard to the evidence before it. Having assessed all evidence in a fair, rational, and lawful manner, the Tribunal reached adverse credibility findings, by reason of which the Tribunal did not accept the Applicant’s claim that he was kidnapped and assaulted by members of his family. As this was at the very core of his claim, his application for international protection was refused.

The submission made on behalf of the Applicant that the Tribunal required him to report serious incidents to the police (or laid down such a test) is simply not borne out by an objective reading of the entirety of the Tribunal’s decision. Rather, the Tribunal asked itself whether, if these events occurred, it was reasonable to expect that the Applicant would not have reported them to the police and came to the view that it was not. That view was neither irrational or unreasonable in the sense those terms are commonly understood or have a meaning in the judicial review context. It was not at all impermissible for the Tribunal to consider whether the Applicant had a good explanation for not reporting matters to the police. It is also fair to say that the Applicant accepted that the reporting of acts of persecution can be an indicia of the credibility of a subjective fear of harm. In truth, the essence of the proposition made by the Applicant in these proceedings is that his reasons were coherent and that the Tribunal erred in finding otherwise. That proposition is utterly undermined by any objective review of the evidence. That is not to suggest that this Court should review facts to reach a merits-based decision. That is not the case, but it is clear that the decision-maker came to a view, having considered all evidence, which was reached lawfully, with a legitimate, rational, obvious and cogent connection between the evidence and the Tribunal’s findings.

The Applicant’s purported reliance on DVTS v. Minister for Justice [2008] 3 IR 476 cannot avail him. This is not a situation where there was conflicting COI information and the Tribunal failed to explain preferring one account over another. The COI information which was before the Tribunal contained both positives and negatives in relation to the policing situation in Ghana. It referred, inter alia , to due process being mostly upheld, the police being responsible for law and order, and specialised units being in existence to address different types of crimes. It also referred, inter alia, to incidents of police brutality, corruption and negligence. Reflecting this, the Tribunal Stated that there was “ not the perfect system for protection ” but “ there was a functioning police force ”. This was not an unexplained rejection of COI information, but a legitimate summing-up of the position disclosed by the COI information. Nor did any COI information state that the police could not be trusted insofar as traditional religious matters were concerned. To say the forgoing should not distract from the premise of the Tribunal’s decision which did not involve a contest between whether the police could, or could not, be trusted insofar as dealing with spiritual issues. Rather, the premise for the decision was that the Applicant was unable to persuade the Tribunal of his credibility in general and the Tribunal’s decision was, in my view, rational, reasoned, clear and lawful.

Paras. [4.22] to [4.24], inclusive, of the decision comprised a setting-out of legal principles in relation to, inter alia, the weight to be given to country of origin information and other evidence ( OAA v. RAT [2007] IEHC 169 (Feeney J)); the rebuttable presumption that a State is capable of protecting its citizens ( GOB v. Minister for Justice Equality and Law Reform [2008] IEHC 229 (Birmingham J., as he then was)); and that the absence of a reasonable explanation for the failure to seek protection can go towards an Applicant’s credibility ( TO v Refugee Appeals Tribunal & Anor [2013] IEHC 258 (Mac Eochaidh J)). The Applicant submits that, whereas the 2015 Act provides for a specific presumption that a country is safe for an applicant by virtue of section 33, such a country is required to be designated by the Minister, pursuant to s. 72, whereas Ghana is not so designated. Relying on the expressio unius doctrine, it is contended that no statutory presumption arises, and a similar submission is made in relation to the Procedures Directive (2005/85/EC) with particular reference to Article 31 thereof (similar to s. 33 of the 2015 Act). Reliance is also placed on Hathaway and Foster’s “ The Law of Refugee Status ” (2 nd ed. pp 319 - 323) wherein the authors suggest that there should be no presumption of State protection. Furthermore, the Applicant contends that such a presumption “seems inconsistent with” Article 3 ECHR/Article 4 of the Charter and/or the State’s duty of co-operation. The foregoing submissions made on behalf of the Applicant seem to me to ignore what was plainly the premise for the Tribunal’s decision. As I observed elsewhere in this judgment, this was by no means a situation where, from the outset of making his claim for international protection, this was an Applicant who claimed that he could not trust the police and the basis for the Tribunal’s decision hinged on findings as regards the extent of State protection, in particular that the police could be trusted in respect of dealing with matters involving traditional religious beliefs. In reality, the fundamental basis for the Tribunal’s decision was on entirely different grounds, as a reading of the entire decision makes clear. The Tribunal is explicit as to those grounds and I have referred to them in this judgment. Furthermore, the Applicant has not demonstrated that, insofar as the Tribunal considered State protection in the context of a credibility assessment, that the Tribunal acted unlawfully. The Applicant has submitted no authority for the proposition that the rebuttable presumption, that a State is capable of protection its citizens from non-State actors, has been disapplied by statute or is inconsistent with EU law.

Pursuant to s.28 of the 2015 Act, the Tribunal was entitled to consider the Applicant’s general credibility. Whether the Applicant could explain the non-reporting of the alleged crime (being the very subject matter of his protection claim) was a matter permissible for the Tribunal to consider, both in logic and in law. The foregoing seems to me to demonstrate how thoroughly the Tribunal considered all matters, notwithstanding the reality that, in giving his account, the Applicant proffered two wholly incompatible versions, namely, that he had not reported anything to the police and that he had. There was no error on the part of the Tribunal by not applying the s.28(7) “benefit of the doubt” provision in the 2015 Act, as to whether there was a lack of trust in the police. The benefit of the doubt provision only applies where general credibility has been established. As Humphreys J. Stated (at para.16) in JUO (Nigeria) v. IPAT [2018] IEHC 710 :

The Tribunal made explicit that it had considered the Applicant’s medical reports. It is well settled that the weight to attach to such evidence is quintessentially a matter for the decision-maker (see Birmingham J. in M.E. v RAT [2008] IEHC 192 at para 27). It was lawful for the Tribunal to conclude that it should not place weight on the medical reports on the basis that it did not find the Applicant to be generally credible. Insofar as the Applicant contends that his medical reports were documents supportive of his claim and the Tribunal was wrong not to have employed the s.28(7) ‘benefit of the doubt’ provision regarding his claim of kidnap and assault, the evidence discloses that full assessment of credibility taking account of all evidence was conducted by the Tribunal without, as well as with, s.28(7) of the 2015 Act.

In light of the evidence before this court, I am bound to reject the submission that there was “ no fundamental change to the evidence ” of the Applicant as regards his interactions with the police. That proposition is fatally undermined by an examination of the facts. Nor does an examination of the decision support the submission that the Tribunal unreasonably rejected the Applicant’s claim that he did not have money to bribe police. It is clear that this was one (of several) explanations proffered by the Applicant which had not featured at all in his claim as detailed in his questionnaire. It is plain that the Tribunal’s consideration of this was bound up with the consideration of general credibility, the ultimate conclusion being that the Tribunal did not find persuasive the Applicant’s supplying of a new explanation for his decisions when it was pointed out that prior explanations were incoherent.

Furthermore, this adverse credibility finding was reached by a Tribunal who, unlike this Court in judicial review, saw and heard the Applicant when he gave his testimony and was in a position to observe his demeanour. As Humphreys J. pointed out in JUO (Nigeria) v. IPAT [2018] IEHC 710 (at para. 13):

The reasons for the decision are undoubtedly sufficient for the Applicant to understand the substantive basis for the conclusion on credibility. That conclusion, although reached by a Tribunal member who considered the entirety of the evidence before him, including the Applicant’s medical reports and country of origin information, flowed from the inconsistencies in the Applicant’s account, the multiple explanations given, the incoherence of same, his willingness to proffer a new explanation when a prior account was pointed out to be incoherent as well as the Tribunal’s findings that he was evasive and hesitant as a witness. In my view, the Applicant has fallen far short of demonstrating that the adverse credibility findings were other than fairly and lawfully reached by the Tribunal member who considered all available evidence and information, taken as a whole. The reasons underpinning the decision comprise facts in respect of which the Tribunal made no error and which have a clear, cogent and legitimate connection with the adverse credibility finding reached by the Tribunal. Regardless of the undoubted skill with the case was put on behalf of the Applicant, this Court is satisfied that the decision was the result of a lawful process and the answer to all four questions posed in the Applicant’s submissions is in the negative. There was no error on the part of the Tribunal and no infringement of any legal provision, or principle of natural or constitutional justice, which would justify the setting-aside of the decision. Rather, the decision represents the outcome of a very careful and entirely lawful approach on the part of the Tribunal member tasked by the Oireachtas to make the decision which, in the view of this Court is unimpeachable. For these reasons the Applicant’s claim should be dismissed.

On 24 March 2020 the following statement issued in respect of the delivery of judgments electronically: “The parties will be invited to communicate electronically with the Court on issues arising (if any) out of the judgment such as the precise form of order which requires to be made or questions concerning costs. If there are such issues and the parties do not agree in this regard concise written submissions should be filed electronically with the Office of the Court within 14 days of delivery subject to any other direction given in the judgment. Unless the interests of justice require an oral hearing to resolve such matters then any issues thereby arising will be dealt with remotely and any ruling which the Court is required to make will also be published on the website and will include a synopsis of the relevant submissions made, where appropriate.” Regarding the question of costs, the Respondents have been entirely successful and the Applicant has been entirely unsuccessful. Thus, my preliminary view is that the ‘normal’ rule that costs should ‘follow the event’ applies. The parties should correspond with each other, forthwith, regarding the appropriate form of order including as to costs which should be made. In default of agreement between the parties on any issue, short written submissions should be emailed to the registrar within 14 days.