B.N (Nigeria) v Minister for Justice, Equality and Law Reform and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 23 April 2015
• Neutral Citation: [2015] IEHC 255
• Court: High Court
• Date: 23 April 2015

[2015] IEHC 255

THE HIGH COURT

[No. 408 J.R./2010]

N (B) [Nigeria] v Min for Justice & Refugee Appeals Tribunal (Garvey)

JUDICIAL REVIEW

BETWEEN

B.N (NIGERIA)

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, BEN GARVEY (SITTING AS THE REFUGEE APPEALS TRIBUNAL)

RESPONDENTS

REFUGEE ACT 1996 S16(2)

EEC DIR 83/2004

EEC DIR 85/2005

REFUGEE ACT 1996 S13

DHOUMO v BOARD OF IMMIGRATION APPEALS 2005 416 F 3D 172

S (E) v REFUGEE APPEALS TRIBUNAL UNREP COOKE 15.7.2009 2009/51/12901 2009 IEHC 335

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

S (R) (A MINOR) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP MAC EOCHAIDH 13.2.2014 2014 IEHC 55

Asylum – Judicial review – Order of certiorari – Refugee Act 1996 (as amended).

Facts: The applicant sought an order by way of judicial review for an order of certiorari quashing the decision of the second named respondent refusing the refugee status of the applicant. The applicant also sought a restraining order against the respondent asking not to take any further steps pending determination of the proceedings. The applicant argued that the second named respondent had erred in law in making the decision. The applicant claimed that the decision was invalid as a proper objective assessment of the applicant's credibility was not undertaken.

Mr. Justice Eagar held that the application seeking an order of certiorari quashing the decision of the second named respondent would be refused. The Court adopting the decision in R.S. (a minor) v. The Refugee Appeals Tribunal & The Minister for Justice Equality and Law Reform held that the second named respondent had reasonably decided the matter. The Court held that the statement of the second named respondent regarding the impossibility of ascertaining the true identity or nationality of the applicant would be sustained. The Court held that the second respondent was not under a duty to identify the nationality of the applicant. Further, the request for the restraining order against the respondent asking not to take any further steps pending determination of the proceedings would be denied.

1 JUDGMENT of Mr. Justice Eagar delivered on the 23th day of April, 2015

2 1. This is a telescoped application to quash the decision of the second named respondent issued on the 5 March, 2010 in respect of the applicant's application for refugee status. The notice of motion and statement of grounds in this case was returnable on the 10 ^th May 2010, and the reliefs sought were as follows:-

3 1) An order for certiorari seeking the quashing of the decision of the second named respondent pursuant to s. 16 (2) of the Refugee Act 1996 (as amended) (hereinafter "the Act of 1996");

4 2) an injunction restraining the first respondent from taking any further steps in relation to the applicant's application for refugee status pending the determination of these proceedings.

5 2. The grounds upon which reliefs are pursued in this case are as follows:-

6 a) The Refugee Appeals Tribunal erred in law and in fact and in breach of fair procedures in failing to have due regard to its obligations pursuant to the European Communities (Eligibility for Protection) Regulations 2006 and the EU Council Directive 2004/83/EC of the 29 ^th April, 2004 (insofar as the provisions thereof have not been transposed into domestic law by the said regulations);

7 b) the Refugee Appeals Tribunal failed to have due and proper regard to the provisions of Council Directive 2005/85/EC of the 1 ^st December 2005;

8 c) no proper regard has been had to the matter set out in the documentation furnished with the applicant's notice of appeal furnished herein and the decision is invalid;

9 d) the Refugee Appeals Tribunal failed to weigh appropriately the details given by the applicant and failed to assess the legal requirement as a matter of law to a well-founded fear of persecution;

10 e) no proper forward looking test was carried out and the process of which the credibility of the applicant appears to have been determined is invalid in that, inter alia, same is based on supposition and surmise rather than a proper objective assessment of the applicant's claim. No proper objective assessment of the applicant's credibility has been undertaken and the decision is invalid;

11 f) insufficient or inadequate or no consideration of the applicant's application.

The applicant's claim

12 3. The applicant was born in 1970 in Harare, Zimbabwe, received approximately 14 years education, is single and worked as an electrician for six years on a farm in Zimbabwe. He claims his father was active in politics and that the applicant was also involved in same. He stated that his father is Nigerian and not Zimbabwean as he had earlier stated. He claims his problems commenced in 2000 when the government seized the farm which gave employment to the applicant's father along with the rest of his family. They struggled economically for the next three years. He claims that in 2002 he went to Greece with an agent. He had no money to go to that country and states the agent told him he would have to work for four years to pay back the cost of the journey, which was unusually funded by the agent. The applicant claims that while living in Greece the agent employed him to undertake illegal activities, i.e. printing pirate CDs. When he refused to carry out this work the agent said he would have to return with the applicant to Zimbabwe. Both of them left Greece after six months and returned to Zimbabwe and again the agent paid for his flight. The applicant claims that in 2005 his father went to court but never returned. The applicant claims nobody knows what happened to his father. He claimed that two weeks after his father disappeared the family home was burnt down. He said he did not report the matter to the police because he believed that they could not do anything. Two years later in March 2007 he claims he was attacked by three men, tied up, blindfolded and taken to an unknown place where he was detained for a day before being released. After that ordeal the applicant went into hiding and states that he wanted to find someone to bring him to Dublin. He needed money to pay an agent so he borrowed US$1,900 from friends. He left Zimbabwe in December 2007 and arrived in Ireland on the 2 ^nd January, 2008. After he applied, the applicant was furnished with a transfer order to Greece because it was established that he had sought asylum in that country prior to coming here. The applicant said he didn't wish to return to Greece because the agent might see him there and make trouble. He met a Polish girl in Ireland and lived with her for 18 months until she lost her job. The applicant then resurrected his asylum application

13 4. In answer to the presenting officer he said his girlfriend went back to Poland in December 2009 and thereafter the applicant was unable to sustain himself. In answer to further questions, he stated he visited Nigeria in 1997 with his father and doing so presented no problems. The applicant said his father had a Nigerian passport and he, the applicant, used his own passport and visa to travel to Nigeria. He was asked if he could have applied for Nigerian citizenship and he replied "Yes". He was asked why he did not apply for protection in Nigeria and he replied "As Ireland was better". It was put to him that if he went to Nigeria he could live there as a citizen. The applicant replied "Yes". The applicant said he had a choice but he preferred to come to Ireland. He referred to his questionnaire and the purported birth certificate submitted. There was inconsistent evidence in his birth certificate compared to the name used on his questionnaire. He was unable to explain the difference. It was also pointed out to him that the birth certificate contained reference to his father where it stated the nationality of the applicant's father was Zimbabwean and not Nigerian. The applicant said it was issued in 2004. He confirmed that it was again issued in 2007 and that it had the same inconsistencies. It was put to him that he had been given evidence that his father was born in Nigeria and the applicant said the birth certificate was a mistake. He was asked when did he go to Nigeria and he replied "I went there in 1997 and stayed until 1999". The applicant said he had a Zimbabwean passport but it got burnt when his house was destroyed. He was asked what name he used when filing an application in Greece and he replied "Paul Newman". He was asked why did he tell the Greek authorities that he was born in Sierra Leone. The applicant replied that the agent advised him.

The decision of the second named respondent

14 5. In his analysis of the applicant's claim the second named respondent indicated that the applicant presented as a 30 year old single male from Zimbabwe who claimed that owing to his involvement with a political group called the MDC (Movement for Democratic Change) (membership card put in evidence). He suffered persecution along with his father, a Nigerian national. He stated that in 2000, government forces seized the farm that he and his father worked on and that the family lost their livelihood as a result. Two years later he claims he went to Greece where he applied for asylum but left after six months when he did not like the type of illegal work offered to him by his agent. He and the agent then returned to Zimbabwe but he claims that in 2005 his father disappeared and the family home was burnt alongside all his documents. He claims that in March 2007 he was attacked by three people, tied up, blindfolded and detained for a day before being released. He went into hiding until he found an agent to bring him to Ireland. He borrowed the requisite money from friends and...