H297 W.H. v The International Protection Tribunal & anor [2019] IEHC 297 (09 May 2019)

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Judgment
Title:
W.H. v The International Protection Tribunal & anor
Neutral Citation:
[2019] IEHC 297
High Court Record Number :
2015 232 JR
Date of Delivery:
09/05/2019
Court:
High Court
Judgment by:
Keane J.
Status:
Approved

[2019] IEHC 297
THE HIGH COURT

JUDICIAL REVIEW

[2015 No. 232 J.R.]
      BETWEEN
W.H.
APPLICANT
AND

THE INTERNATIONAL PROTECTION TRIBUNAL,

AND THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

JUDGMENT of Mr Justice David Keane delivered on the 9th May 2019

Introduction
1. This is the judicial review of a decision of the Refugee Appeals Tribunal, now the International Protection Appeals Tribunal (‘the IPAT'), dated 15 April 2015 and made under s. 16(2)(a) of the Refugee Act 1996, as amended (‘the Refugee Act'), affirming a recommendation of the Refugee Applications Commissioner (‘the Commissioner') that the first applicant should not be declared to be a refugee (‘the IPAT decision').

2. On 11 May 2015, Mac Eochaidh J gave the applicants leave to apply for various reliefs, principal among which is an order of certiorari quashing the IPAT decision.

3. At the time when leave was granted, the International Protection Appeals Tribunal was known as the Refugee Appeals Tribunal. When s. 71(5) of the International Protection Act 2015 (‘the Act of 2015') came into force on 31 December 2016, the former was substituted for the latter in these proceedings by operation of law.

Background
4. The applicant is a Nigerian man, born in 1985.

5. The applicant presented himself to the immigration authorities in Dublin on 24 September 2013, having claimed to have arrived in the State, via Cameroon and Northern Ireland, on 22 September 2013.

6. In essence, the applicant claims to have a well-founded fear of persecution on the ground of his sexual orientation if returned to Nigeria, because he is homosexual and same-sex conduct, same-sex unions, displays of affection between same-sex couples and gay rights activism are all criminalised in Nigeria as offences that may be penalised by a prison sentence of up to 14 years.

7. The applicant was interviewed by an immigration officer in accordance with the requirements of s. 8 of the Refugee Act on 24 September 2013 and completed an asylum application (‘ASY-1') form on that date.

8. Having completed the necessary questionnaire for the Office of the Refugee Applications Commissioner (‘ORAC') on 2 October 2013, the applicant was then interviewed by an authorised officer of the Commissioner, pursuant to s. 11 of the Refugee Act, on 3 December 2013 and 14 January 2014.

9. ORAC wrote to the applicant on 19 February 2014, enclosing a report and recommendation, dated 29 January 2014, pursuant to s. 13 of the Refugee Act, recommending that the applicant should not be declared to be a refugee on the basis that the applicant had failed to establish a well-founded fear of persecution if returned to Nigeria, essentially because he failed to establish the credibility of his own unsupported statements upon which the subjective element of his asserted fear of persecution was based.

10. Through his legal representatives, the applicant submitted a notice of appeal, dated 7 March 2014, against the recommendation of the Commissioner. It was followed by grounds of appeal and accompanying legal submissions, dated 11 March 2014. A medico-legal report, dated 6 May 2014, from a psychiatrist attached to the Spirasi Centre for the Care of Survivors of Torture was later submitted, as were further extensive legal submissions, dated 2 March 2015.

11. An oral hearing of the applicant's appeal took place before the tribunal on 3 March 2015.

12. The IPAT decision is dated 15 April 2015 and was furnished to the applicant under cover of a letter, dated the following day. It concludes that the applicant had failed to establish that he would be at risk of persecution if returned to Nigeria, once again because he had failed to establish the credibility of his own unsupported statements upon which the subjective element of his asserted fear of persecution was based.

Procedural history
13. The applicant sought, and was granted, leave to bring these proceedings on 11 May 2015, based on a statement of grounds, dated 7 May 2015, grounded on an affidavit of the applicant, sworn on the same day. The Minister filed a statement of opposition, joining issue with the applicant on each of the grounds raised, on 21 March 2016.

Grounds of challenge
14. In his statement of grounds, the applicant enumerates three separate grounds of invalidity of the IPAT decision: first, that it contains nine separate enumerated errors of law; second, that it was reached in breach of the applicant's entitlement to natural and constitutional justice in at least six different ways; and third, that its conclusions were irrational or unreasonable.

15. However, in the applicant's written legal submissions, dated 18 April 2016, those grounds are summarised as follows:

      (i) The tribunal failed to apply the correct standard of proof.

      (ii) The tribunal erred in law in the manner in which it assessed the applicant's sexuality.

      (iii) The tribunal erred in law by incorrectly applying relevant UNHCR guidelines.

      (iv) The tribunal erred in law or acted in breach of the applicant's entitlement to fair procedures in the manner in which it made adverse credibility findings against the applicant.

16. Confusingly, the third section of the applicant's written legal submission does not deal with the requirements of any UNHCR Guidelines but, rather, with the applicable legal principles governing the assessment of the credibility of the statements made by refugee status applicants.

Analysis
i. the standard of proof

17. The applicant contends that, in determining the material facts on the balance of probabilities, the tribunal applied the wrong standard of proof. After the applicant's written legal submissions were filed but before the hearing of these proceedings, that point was conclusively determined against the applicant's contention by O'Regan J in O.N. v Refugee Appeals Tribunal [2017] IEHC 13 (Unreported, High Court, 17th January, 2017) in these terms (at para. 63):

      ‘In light of the foregoing principles and having regard to the fact that the balance of probabilities is the civil standard of proof in this jurisdiction, I am satisfied that the principle of equivalence and the principle of effectiveness are both safeguarded by the application of the standard of proof - being the balance of probabilities - coupled with, where appropriate, the benefit of the doubt. Until such time as this State might introduce more favourable standards as contemplated by Article 3 of [Council Directive 2004/83/EC], this is the appropriate standard to apply, i.e. the balance of probabilities, coupled with, where appropriate, the benefit of the doubt.'
18. That development prompted the applicant to file supplemental legal submissions, dated 15 February 2017, inviting me to reject O.N . as wrongly decided and to adopt instead the approach to the overall assessment of the risk of future persecution articulated by the England and Wales Court of Appeal in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, which - it was submitted - had previously been approved by this Court in the cases of Da Silveira v Refugee Appeals Tribunal [2004] IEHC 436, (Unreported, High Court (Peart J), 9th July, 2004) and M. A.M.A. v Refugee Appeals Tribunal [2011] 2 IR 729.

19. However, those decisions were considered and distinguished by O'Regan J in O.A . as not directly addressing the standard of proof in accordance with which past events must be established, and while I note that the applicant disagrees with that conclusion, I have previously held in N.N. v Minister for Justice and Equality [2017] IEHC 99, (Unreported, High Court, 15th February, 2017) that, on the well-established principles recognised by Parke J in Irish Trust Bank Ltd. v Central Bank of Ireland [1976-1977] ILRM 50 and reformulated by Clarke J in Re Worldport Ireland Ltd [2005] IEHC 189, (Unreported, High Court, 16th June, 2005), I should not depart from the decision of O'Regan J.

20. Thus, I reject the applicant's argument on the standard of proof.

ii. assessing sexual orientation

21. The applicant submits that the manner in which the tribunal approached its assessment of the applicant's sexual orientation was wrong in law because it relied entirely on adverse credibility findings already made in relation to other aspects of the applicant's claim.

22. In particular, the applicant argues that both the credibility of an applicant and that person's narrative of self-identification as homosexual must be considered in any assessment of sexual orientation and that, in holding that the establishment of ‘the appellant's LGBTI background, if any, is essentially a matter of credibility' , without highlighting, and having proper regard to, the applicant's narrative of self-identification as a gay man, the tribunal erred in law.

23. The applicant makes that argument in reliance upon the following dictum in A.P. v Refugee Appeals Tribunal [2013] IEHC 448, (Unreported, High Court (Mac Eochaidh J), 20th September, 2013):

      ‘It was incumbent on the Tribunal Member to highlight that both an applicant's credibility and the narrative of self-identification as a gay man are relevant considerations which should be taken into account in assessing such a claim.'
24. However, it seems clear to me that the relevant passage in A.P . must be read in context. There, Mac Eochaidh J was dealing with the applicant's complaint in that case (described at paragraph 5 of the judgment) that the tribunal member had relied on other aspects of the credibility of the applicant's claims, without having sufficient, or any, regard to the applicant's self-identification as a gay man in rejecting his claim to be one, and that the tribunal member made only selective reference to the report Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in Europe (September 2011, Jansen & Spijkerboer) in doing so. Precisely what reference the tribunal member did make to that report is not clearly stated. Unsurprisingly, in addressing international standards for the assessment of credibility issues on sexual orientation, the report invokes Article 4 of Council Directive 2004/83/EC (‘the Refugee Qualification Directive'); paragraphs 195-205 of the United Nations High Commissioner for Refugees (‘UNHCR') Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (1979, reissued in 2011) (‘the UNHCR Handbook'); and Article 13(3)(a) of Council Directive 2005/85/EC (‘the Procedures Directive'), before going on to quote a passage from the UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity (21 November 2008) (‘the UNHCR Guidance Note'), including the following paragraph:
      ‘35. Self-identification as LGBT should be taken as an indication of the individual's sexual orientation. While some applicants will be able to provide proof of their LGBT status, for instance through witness statements, photographs or other documentary evidence, they do not need to document activities in the country of origin indicating their different sexual orientation or gender identity. Where the applicant is unable to provide evidence as to his or her sexual orientation and/or there is a lack of sufficiently specific country of origin information the decision-maker will have to rely on that person's testimony alone. As the UNHCR Handbook has noted "if the applicant's account appears credible, he [or she] should unless there are good reasons to the contrary, be given the benefit of the doubt." In the same vein, the United Kingdom Asylum and Immigration Tribunal stated: "[T]here is the full, consistent detail and the plausible noting of small points, unlikely to be observed or recounted by a person who had not had the experiences described.'
25. Thus, it is clear - as one might expect - that an applicant's self-identification as LGBT is not a given in any assessment, distinct from other statements or evidence the credibility of which will have to be assessed, but is instead a specific aspect of an applicant's evidence, the credibility of which must also be assessed in the absence of other supporting material. Reading the relevant dictum of Mac Eochaidh J in that light and in the context of the surrounding text, I conclude that he was drawing a distinction between those aspects of the applicant's account that the tribunal member did purport to assess the credibility of and the tribunal member's perceived failure to address the credibility of the applicant's narrative of self-identification as a gay man in that case.

26. That conclusion is buttressed by a consideration of the relevant portion of the IPAT decision in this case, from which the applicant's submissions have quoted only a fragment. The full text of the relevant paragraph reads:

      ‘Paragraph 62 of the "UNHCR Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees" states:

        "Ascertaining the applicant's LGBTI background is essentially an issue of credibility. The assessment of credibility in such cases needs to be undertaken in an individualized and sensitive way. Exploring elements around the applicant's personal perceptions, feelings and experiences of difference, stigma and shame are usually more likely to help the decision maker ascertain the applicant's sexual orientation or gender identity, rather than a focus on sexual practices."'
27. I am satisfied that, having set out that guidance, the tribunal did follow it, as is clear from the next succeeding paragraph of the decision that notes the feelings that the applicant claimed to have experienced in a detention camp as a young teenager for a male rebel leader and the homosexual feelings that the applicant claimed to have experienced later on in boarding school. These matters had been addressed by the applicant in his evidence to the tribunal and I can see nothing to suggest that the tribunal demonstrated any insensitivity in that regard. The difficulty for the applicant was that, against the background of a finding of overall lack of credibility, the tribunal simply did not accept the credibility of that narrative.

28. There is no evidence in this case that the tribunal focused excessively or at all on the applicant's sexual practices, much less that it did so to the exclusion of an appropriate consideration of his narrative of self-identification as a gay man.

29. I reject the applicant's submission that the tribunal failed to have regard to the suggested areas of useful questioning for interviewers, set out in the succeeding paragraph of the UNHCR Guidelines; an appeal before the tribunal is not an interview. I can find no failure by the tribunal to consider the applicant's self-identification as a LGBTI person as an indication of his sexual orientation. Rather, it seems to me that it properly considered the applicant's evidence in that regard but, ultimately, found it lacking in credibility.

30. Finally, the applicant argues that the tribunal erred in concluding from the applicant's inability to answer questions about his knowledge of gay rights groups, organisations and personalities in a neighbouring country in which he had lived for a period and where he claimed to have engaged in various campaigns and seminars to advocate for equality with a named prominent gay rights activist (later murdered), not only that his statements in that regard lacked credibility but also that this contributed, together with several other adverse credibility findings, to the conclusion that it was not possible to extend the benefit of the doubt to the applicant's assertion of self-identification as a gay man.

31. The applicant argues that this runs counter to the requirements of Article 4(3)(c) of the Refugee Qualification Directive, as interpreted by the Grand Chamber of the European Court of Justice (‘ECJ') in Cases C-148/13 to C-150/13 A, B and C v Staatssecretaris van Veiligheid en Justitie ECLI:EU:C:2014:2406. In that preliminary reference, the referring court had posed the question:

      ‘What limits do Article 4 of [Directive 2004/83] and [the Charter], in particular Articles 3 and 7 thereof, impose on the method of assessing the credibility of a declared sexual orientation, and are those limits different from the limits which apply to assessment of the credibility of the other grounds of persecution and, if so, in what respect?'
32. In considering the question, the ECJ made the following observation, upon which the applicant relies:
      ‘62 While questions based on stereotyped notions may be a useful element at the disposal of competent authorities for the purposes of the assessment, the assessment of applications for the grant of refugee status on the basis solely of stereotyped notions associated with homosexuals does not, nevertheless, satisfy the requirements of the provisions referred to in the previous paragraph, in that it does not allow those authorities to take account of the individual situation and personal circumstances of the applicant for asylum concerned.

      63 Therefore, the inability of the applicant for asylum to answer such questions cannot, in itself, constitute sufficient grounds for concluding that the applicant lacks credibility, inasmuch as such an approach would be contrary to the requirements of Article 4(3)(c) of Directive 2004/83 and of Article 13(3)(a) of Directive 2005/85.'

33. The applicant submits that this dictum is authority for the proposition that it was an error of law to consider his inability to answer the questions that were put to him about his knowledge of gay rights groups, organisations and personalities in that neighbouring country as part of the assessment of the credibility of his declared sexual orientation.

34. I cannot accept that submission for two reasons. First, the particular questions that were put to the applicant were not based on the stereotyped notion that a gay man should have knowledge of gay rights groups, organisations and personalities in the country in which he lives; they were based on the specific statement by the applicant that he had engaged in various campaigns and seminars to advocate for equality with an identified gay rights activist (later murdered) in another identified country in which he had lived.

35. Second, the tribunal had not relied on the applicant's inability to answer those questions, in and of itself , as sufficient grounds for concluding that his declaration of sexual orientation lacked credibility; rather, it had assessed the credibility of all of his statements on the issue of his sexual orientation, as well as his credibility in respect of a wide range of matters, including his asserted activities as a gay rights activist in that other country, in reaching an adverse conclusion on his general credibility, before concluding on that basis:

      ‘[I]t is not possible to extend the benefit of the doubt to the [applicant] in relation to the remaining material fact of his claim, namely his assertion that he is a gay man.'
36. That appears to me to reflect the correct application of the following principles set out in the United Nations High Commissioner for Refugees (‘UNHCR') Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (1979, reissued in 2011) (‘the UNHCR Handbook'):
      ‘203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to "prove" every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognised. It is therefore frequently necessary to give the applicant the benefit of the doubt.

      204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.'

37. I therefore reject the applicant's argument that the tribunal erred in its assessment of the applicant's sexual orientation.

iii. assessing credibility

38. The applicant contends that the tribunal failed to conduct its assessment of the credibility of the statements he made as a refugee status applicant in accordance with the applicable legal principles summarised by Cooke J in IR v Minister for Justice, Equality and Law Reform and Anor [2009] IEHC 353 (Unreported, High Court, 24th July 2009).

39. In that case, having referred to the mandatory checklist of thirteen particular matters to be considered in assessing credibility that are prescribed under s. 11B of the Refugee Act, and which - it seems to be common case - are of no particular relevance here, and having then gone on to refer to what he described as the ‘more pedagogic requirements' of Reg. 5 of the European Communities (Eligibility for Protection) Regulations 2006 and 2011(‘the 2006 Regulations'), Cooke J went on to recite (at para. 10) a list of relevant cases that had been opened in argument, before distilling from them ten principles that emerge as a guide to the manner in which evidence going to credibility ought to be treated and the manner in which any review of a decision-maker's conclusions on credibility should be carried out. Those ten principles are often now referred to as ‘the IR principles'.

40. The applicant suggests that the IPAT decision was reached in breach of the fifth and sixth principles. In essence, the fifth principle is that the reasons for a finding of lack of credibility should have a proper basis in fact; should be cogent; and should bear a legitimate connection to the adverse finding they support. The sixth principle is that the reasons for such a finding 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.

41. The tribunal's analysis of credibility in the IPAT decision was extensive, running to almost twelve pages. It begins by listing the five separate instances of past persecution on grounds of sexual orientation that the applicant claims to have suffered. They are: (1) the harassment and discrimination that the applicant experienced from students, staff and administrators at a particular university in Nigeria between May 2006 and September 2008; (2) the arrest and detention in police custody of the applicant for two weeks in October/November 2009, during which he received frequent beatings; (3) the arrest and detention in police custody of the applicant for one month in February/March 2011, during which, once again, he received frequent beatings; (4) a physical attack on the applicant in a bar on 15 August 2012, which left him with a prominent scar on his forehead; and (5) death threats against the applicant in a neighbouring country, after the murder of a prominent gay rights activist there with whom the applicant was closely associated.

42. The tribunal then makes findings of lack of credibility in respect of those claims under seven separate headings, as follows: (a) inconsistencies in the applicant's account of the attack on him in a bar in August 2012; (b) initial omissions, vagueness and inconsistencies in the applicant's account of his campaigning activities as a grass roots mobiliser that led to his second arrest and detention by the police in February 2011; (c) inconsistencies and vagueness in the applicant's account of his campaigns and seminars with a leading gay rights activist in a neighbouring country, prior to the murder of that person; (d) initial omissions in the applicant's account of the events that led to his first arrest and detention by the police in October/November 2009; (e) inconsistencies in the applicant's account of the degree he obtained from the university he attended in Nigeria; (f) inconsistencies in the applicant's account of his travel between Nigeria and Ireland; and (g) the implausibility, on grounds of overall credibility, of the applicant's assertion that he is a gay man.

43. The applicant takes issue with particular findings made under certain of these headings as the basis for the broad assertion that ‘sweeping adverse findings were made on the basis of small inconsistencies and/or omissions', in breach of the principles that the reasons for a finding of lack of credibility should bear a legitimate connection to the finding they support and that they must relate to the substantive basis of the claim made and not to minor matters or to facts which are merely incidental to the account given.

44. On a consideration of the twelve-page analysis of credibility section in the IPAT decision, it is apparent that a very wide range of inconsistencies and omissions are identified, some large (most notably, the applicant's differing and starkly inconsistent accounts of the incident in the bar on 15 August 2012) and some small (such as certain important details omitted from the applicant's ORAC questionnaire, addressed in greater detail below). It was quintessentially a matter for the tribunal to consider their individual and cumulative effect. Further, it seems to me that each bore a relationship to the substantive basis of the claim made, more specifically the various alleged incidents of past persecution on which the applicant sought to rely, the applicant's explanation of how he travelled to and arrived in the State (which the tribunal was specifically required to consider under s. 11B(c) of the Refugee Act), and the asserted sexual orientation of the applicant, which was the ground upon which he alleged he had been persecuted.

45. In addressing this particular argument, I must not overlook the eighth of the IR principles, which states:

      ‘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.'
46. In my view, the applicant's submissions on this point are an invitation to fall into precisely the form of error against which this principle warns. Accordingly, I reject this argument.

47. As I have been unable to identify any invalid reasons in the credibility assessment (or any other) section of the IPAT decision, the sometimes vexed question of how to approach an assessment of the lawfulness of a decision containing one or more invalid credibility findings among a greater number of valid ones, perhaps most recently considered in B.W.(Nigeria) v Refugee Appeals Tribunal [2017] IECA 296 (Unreported, Court of Appeal, 15th November, 2017), does not arise.

48. As a separate and discrete point, the applicant states that the tribunal wrongly made certain lack of credibility findings against him based only on the omission of certain important details from his original completed written questionnaire.

49. In doing so, the applicant relies on the decision of this Court in Memishi v Refugee Appeals Tribunal & Ors [2003] IEHC 65 (Unreported, High Court (Peart J), 25th June, 2003) in which, among other authorities, the court considered the decision of the United States Federal Court of Appeals for the Ninth Circuit in Cordon-Garcia v. INS , 204 F.3d 985 (following Lopez-Reyes v. INS, 79 F.3d 908 and Aguilera-Cota v. United States INS, 914 F.2d 1375), accepting it as persuasive authority for the proposition that ‘the fact that some important detail is not included in the application form completed by the applicant when he/she first arrives is not of itself sufficient to form the basis of an adverse credibility finding.'

50. I accept that as the law. However, leaving aside both the possibility of an imperfect analogy with the asylum application procedure in the United States and the potential implications of the distinction between the completion of an asylum application (‘ASY-1') form and an ORAC questionnaire in this jurisdiction, the real difficulty for the applicant is that in neither instance to which he refers did the tribunal rely on the omission of an important detail in his ORAC questionnaire as providing in itself the basis of an adverse credibility finding.

51. In the first instance, the tribunal rejected the credibility of the applicant's account of his arrest and detention in police custody for one month in February/March 2011 as a result, in his words, of his campaigns as a grass-roots mobiliser. In doing so, as the applicant acknowledges, the tribunal relied not only upon his failure to mention in his ORAC questionnaire a particular advocacy group for HIV sufferers with which, later in his s. 11 interview, he claimed to have been involved at the time of his arrest, but also the perceived discrepancy between his reference to ‘one of my campaigns' in describing his activism in his ORAC questionnaire and his acknowledgment in the course of his s. 11 interview, as a fluent English speaker, that he was only informally involved with that advocacy group and only attended its meetings ‘from time to time.' Moreover, it is clear from the IPAT decision that the tribunal also relied upon what it found to be the vagueness or lack of specificity of the applicant's answers to questions about the nature and extent of his involvement with that group as part of the basis upon which it rejected the credibility of that aspect of his claim.

52. In the second instance, the tribunal rejected the credibility of the applicant's account of his arrest and detention by the police for two weeks in October/November 2009. In doing so, it relied in significant part on the applicant's failure to disclose in his questionnaire that the discovery and reporting to the police of his homosexual identity - in unexplained circumstances - through his involvement in a football club, which he had disclosed in his questionnaire, was actually a report to the police by the parents of one of his teammates that they had discovered their son had been in a nine-month sexual relationship with the applicant, a detail the applicant disclosed in the course of his s. 11 interview. While this strikes me as, at most, a limited omission, the IPAT decision expressly states that, in rejecting that aspect of the applicant's claim on the balance of probabilities, it did so by considering it in conjunction with the adverse credibility findings that the tribunal had already made on other aspects of the applicant's statements.

iv. fair procedures in the assessment of credibility

53. The applicant argues that the tribunal breached his entitlement to fair procedures and natural and constitutional justice by failing to put certain matters to him in the course of the appeal that it later relied on to make adverse credibility findings against him.

54. The applicant takes as his starting point for this argument the decision of this Court in N (A.Z.) v Refugee Appeals Tribunal & Anor [2009] IEHC 432, (Unreported, High Court (Clark J), 7th October, 2009) but without relying on that decision as authority for any identified principle or principles. Rather, the applicant seeks to draw a series of distinctions between the facts of that case and those of this one, as the basis for suggesting that, while the challenge brought to a decision of the tribunal by the applicant in that case was unsuccessful, the applicant's challenge to the IPAT decision in this case should succeed.

55. The applicant's fundamental complaint in this regard relates to the tribunal's finding that the applicant had failed to establish the credibility of his claim to have attended a particular university in Nigeria for four years, where he claimed to have experienced harassment and discrimination from students, staff and administrators between May 2006 and September 2008.

56. The relevant part of the analysis of credibility section of the IPAT decision is as follows:

      ‘[5.29] In the questionnaire, the [applicant] said that he studied for, and was awarded, a B.Sc. by [the university]. At the appeal hearing, he said he was awarded a B.A. The SPIRASI report records him as having been awarded an M.A.

      [5.30] When asked to explain the discrepancy between the questionnaire and his testimony at the appeal hearing, the appellant said he had been mistaken in what he had written. He was adamant he was awarded a B.A.

      [5.32] The Tribunal does not accept the appellant's explanation as reasonable. Although the matter might seem relatively inconsequential when taken on its own, the Tribunal finds that, when combined with the adverse credibility findings already made in this decision, the discrepancy is undermining of the appellant's credibility to the extent that it has not been established on the balance of probabilities that he ever studied at [the university].'

57. The applicant appears to argue that it was not sufficient for the tribunal to put the alleged discrepancies concerning the nature of the qualification he received from the university but, rather, it was necessary, as a matter of fair procedure, to go on to put to the applicant that the credibility of his claim to have attended that university was at stake, as was - as a necessary consequence - the credibility of his claim to have been persecuted on the grounds of his sexual orientation there.

58. In advancing that argument, the applicant relies in part, on the assertion that, ‘unlike in [ N (AZ)] ', it was not made obvious by the tone or nature of the questions asked that the credibility of the applicant's claim to have attended that university was in issue. Although, rather unhelpfully, the applicant's submissions do not identify the contrasting finding in N(AZ) upon which he seeks to rely, this seems to be an invocation of the reference in that case to a question put to the refugee status applicant by the presenting officer having been, in the view of Clark J (at para. 41), ‘loaded with irony indicative of incredulity.'

59. Two things are clear. The first is that this Court is no better able to adjudicate on the tone of questions put to a witness in the course of a hearing that led to a decision under review than it is to adjudicate on the demeanour of any witness at that hearing. The second is that neither the applicant in this case nor his legal representatives were required to infer anything from the nature or tone of any question put to the witness about his narrative account of the university qualification he had obtained; the applicant was directly asked to explain the obvious and admitted contradictions between what he had written in his questionnaire, what was recorded on the SPIRASI report (prepared and submitted on his behalf), and what he stated in his evidence to the Tribunal.

60. The other proposition on which the applicant relies in support of his argument on this point is that it was inherently unfair to reach an adverse credibility finding on an inconsistency that could have been resolved by independent verification of the fact at issue, in this instance the applicant's university qualification. Leaving aside that the applicant had not submitted independent verification of his attendance at that university and did not offer to procure it when the relevant discrepancies were pointed out to him, how can this court be satisfied that such verification was, or is, available? It is noteworthy in that regard that it has not been produced for the purpose of the present proceedings (not, of course, to support the applicant's refugee status claim on the merits, which is no concern of this Court, but to support his assertion that the relevant independent verification was there to be had and that the tribunal should have assumed or accepted as much). Thus, I can see no meaningful distinction between the circumstances of this case and those of the unsuccessful challenge to the validity of the decision in N(AZ).

61. On the closely related question of whether it was necessary to put to the applicant that the credibility of his claim to have attended the university was at stake, the applicant acknowledges in his legal submissions that ‘the principle of audi alteram partem does not require the determinative body to debate its conclusions in advance with the parties'; D.H. v Refugee Applications Commissioner [2004] IEHC 95; (Unreported, High Court, 27th May, 2004) (at p. 19)

62. In their written submissions, the respondents refer the Court to certain passages from two separate judgments of this Court. The first is the following from the judgment of McMahon J in P.S. v Refugee Applications Commissioner [2008] IEHC 235, (Unreported, High Court, 11th July, 2008):

      ‘Clearly, not every matter must be put to the applicant or [his or] her advisors. It is not incumbent on the Commissioner after every question is answered to say to the applicant:-

        "I am not sure I believe your answer. It may be when I assess the matter fully and examine the evidence in its totality that I will reject your answer to this question. What have you to say to that?"

      It is quite clear to all who participate in this exercise especially where the applicant is assisted by legal advisors, that the application will be at risk if the applicant is not believed, and that the principal onus of proof lies on the applicant who is in appropriate cases to be given the benefit of the doubt.'
63. The second comes from the decision of Hedigan J in B.N.N. v Refugee Applications Commissioner [2008] IEHC 308, (Unreported, High Court, 9th October, 2008):
      ‘33. It would be completely impossible to reach an expeditious conclusion if a decision-maker was required to debate with the person who is to receive the decision each and every one of the conclusions on credibility that he was going to reach. Moreover, if a decision-maker was to say to a person, in respect of each dubious comment, "I don't believe that is true", the person telling the story would lose the nerve to tell their story, true or false. It is important to bear in mind that the ORAC officer is not conducting a criminal trial. Rather, he or she is conducting an investigative procedure, on an inquisitorial basis.'
64. As the respondents point out, those principles were quoted with approval by Mac Eochaidh J in T.A. and O.J.O. v Refugee Appeals Tribunal & Ors [2014] IEHC 204, (Unreported, 3rd April, 2014). Applying them to the facts of the present case, I am satisfied that there was no failure to accord to the applicant his entitlement to natural and constitutional justice and fair procedures.

Conclusion
65. I refuse the application.









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