E (B)(Nigeria) and Others v Refugee Appeals Tribunal and Others

JurisdictionIreland
JudgeMs. Justice Stewart
Judgment Date19 November 2015
Neutral Citation[2015] IEHC 731
CourtHigh Court
Date19 November 2015

[2015] IEHC 731

THE HIGH COURT

[No. 1208 J.R/2011]
E (B)(Nigeria) & Ors v Refugee Appeals Tribunal & Ors
No Redaction Needed
Approved Judgment
JUDICIAL REVIEW

BETWEEN

B.E. (NIGERIA)
V.D. (NIGERIA)
(a minor suing by her mother and next friend B.E.)
E.D. (NIGERIA)
(a minor suing by his mother and next friend B.E.)
M.D. (NIGERIA)
(a minor suing by her mother and next friend B.E.)
APPLICANTS

AND

REFUGEE APPEALS TRIBUNAL MINISTER FOR JUSTICE AND EQUALITY ATTORNEY GENERAL
RESPONDENTS

Asylum, Immigration & Nationality – Appeal against the decision of the Refugee Appeals Tribunal – Certiorari – European Communities (Eligibility for Protection) Regulations, 2006 – Fear of persecution – Paper-only appeal – Lack of oral hearing – Breach of fair procedures

Facts: The applicants sought an order of certiorari for quashing the decision of the first named respondent affirming the recommendation of the Offices of the Refugee Applications Commissioner that the applicants should not be declared a refugee. The first named applicant being the mother of the other three minor applicants contended that she feared of being persecuted in the country of origin as her father, a Christian was killed by the local Muslims after a Christian person became the president of the country of origin. The first named respondent contended that there was no evidence substantiating the claim of the applicant and there was no objective basis for her subjective belief that state protection would not be available to her. The applicant further contended that since she was not given an opportunity of an oral hearing, she was much less likely to succeed at appeal.

Ms. Justice Stewart refused to grant an order of certiorari to the applicant. The Court held that the findings made by the first named respondent were cogent and rational as there was lack of objective basis for the subjective belief of the applicant. The Court found that the fact that the applicant successfully relocated internally within country of origin suggested that there was no imminent danger to the applicant. The Court observed that the present forum was not an appropriate forum to challenge that an oral hearing was not afforded to the applicant and in that case, the applicant should have challenged the decision of the Offices of the Refugee Applications Commissioner before an appeal to the Refugee Appeals Tribunal was taken.

1

JUDGMENT of Ms. Justice Stewart delivered on the 19th day of November, 2015

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1. This is a telescoped hearing of judicial review seeking certiorari to quash a decision of the Refugee Appeals Tribunal affirming the negative recommendation of the Refugee Applications Commissioner that the applicants should not be declared refugees, dated 25 th November, 2011, notified to the applicants by cover letter dated 30 th November, 2011, and remitting the appeal of the applicants for de novo consideration by a different tribunal member.

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2. The proceedings were issued on 20 th December, 2011 thereby outside the 14-day timeframe for issuing judical reviews of this nature. The first named applicant explained the delay on affidavit and in light of the explanation provided, I am satisfied in this case, there are good and sufficient reasons provided and I do thereby extend the time.

BACKGROUND
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3. The application are a mother and her three children and are Nigerian nationals. The mother, and first named applicant, was born on 23 rd April, 1975; the second named applicant, her daughter, was born on 3 rd May, 2007; the third named applicant, her son, was born 28 th November, 2008; and the fourth named applicant, her daughter, was born on 28 th November, 2010. As the second, third and fourth named applicant are all minors, the first named applicant, their next friend in this set of proceedings, spoke for the family unit at the s. 1 1 interview. The following is her account of the events that gave rise to the alleged persecution, which led to her claiming international protection in Ireland.

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4. The first named applicant lived with her parents in Kaduna. He father was a senior pastor of an Evangelical church. When Goodluck Jonanthan, a Christain, became president of Nigeria in 2010, the first named applicant stated that problems began with local Muslims. At her s. 11 interview, the first named applicant was asked, at question seventeen: "why did you leave Nigeria and come to seek asylum in Ireland?" The first named applicant replied as follows:

"I left Nigeria because there was a problem when Muslims came to my church after a Christian became president of Nigeria. The Muslims were angry and they came to my church and were beating people. They hit my father in his church and they continued to beat him until they killed him. My friend who lives in Kaduna came to assist me and helped me to run away and we moved to the southern part of Nigeria. We stayed there for about three months and two weeks. Then I tried to come back and see how things were in Kaduna. I tried to return to Kaduna and returned there where I met a woman. When we got down from the bus, this woman was shocked and said people were looking for my family. The woman told me that people from my church went and killed the head of the mosque. She said people were looking for us and she said she would help us. She brought us to a man who was my father's friend. He was shocked and he heard [about] the death of my father and he would help us to find a place to go. He took us to a place to hide. He took us to a faraway place and brought food for us. From there, he did everything and took our pictures and prepared our travel. On 20 th August, 2011, he came and told us that everything was ready. This man arranged our travel out of Nigeria and he told us that we were moving to Ireland on August 28 th, 2011. For me, it is a miracle to be saved and we are free. We then came to Ireland."

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5. The applicants arrived at Dublin airport on 29 th August, 2010, and presented at the offices of RAC that same day, and completed a s.8 interview. The first named applicant was interviewed pursuant to s. 11 of the Refugee Act 1996 (as amended) on 20 th September, 2011. The s. 13 report in respect of all four applicants was issued on 26 th September, 2011, which was sent to the applicants by cover letter dated 12 th October, 2011. The authorised officer found, inter alia, as follows:

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a a) The applicants did not provide any evidence to substantiate the claims made, which affected credibility;

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b b) The applicants returned to Kaduna after having safely relocated, which affected credibility;

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c c) The first named applicant lacked a basic knowledge of the city of Kaduna, where she claimed to have resided for her entire life;

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d d) The first named applicant did not provide a true and accurate account of her travel to Ireland;

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e e) There was no objective information provided regarding the group that might be targeting her and she had never been directly targeted, by her own account;

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f f) There is no objective evidence that she could not move elsewhere to avoid the group she perceived to be targeting her nor is there any evidence that she could not have sought the assistance of the state authorities.

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6. The authorised officer made a s. 13(6) (b) finding, namely:

"The applicant made statements or provided information in support of the application of such a false, contradictory, misleading or incomplete nature as to lead to the conclusion that the application is manifestly unfounded."

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The effect of this finding is that any appeal to the RAT would be by way of the papers-only, and no oral hearing would be held. The applicants appealed the negative recommendation to the RAT by form two, notice of appeal on 26 th October, 2011.

IMPUGNED DECISION
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7. The decision, dated 25 th November, 2011, affirmed the negative recommendation of the RAC. Under the heading 'analysis of the applicants' claim', exhibited from p.1 14 of the booklet of pleadings before this Court, the tribunal member scrutinised the applicants' claim. The tribunal member found as follows:

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a a) The first named applicant could not specify the group she was afraid of, beyond stating that she feared Muslims.

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b b) None of the four applicants "were hurt or traced in the attack on the church".

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c c) The applicants managed to move to another region for over three months without being traced, as the first named applicant had stated might happen.

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d d) The applicants returned to Kaduna after having claimed to have safely relocated.

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e e) Nothing occurred after the applicants returned to Kaduna and the first named applicant decided to leave the country on the direction of a woman and Mr. John.

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f f) The first named applicant did not have a basic knowledge of Kaduna when questioned at her s.l l interview.

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g g) The first named applicant has no objective basis for her subjective belief that state protection would not be available to her.

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h h) Over two pages, the tribunal member made findings in relation to internal relocation, with the caveat at the beginning: "Even, if it were the case that the Applicant and her children were refugees, which the Tribunal has decided they are not, the issue of internal relocation can be referred to". The decision-maker then goes on to analyse the particulars of the applicants' circumstances and the viability of internal relocation.

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8. The tribunal member concluded by affirming the recommendation of the RAC and denying the applicants a declaration of refugee status.

APPLICANTS' SUBMISSIONS
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9. Counsel for the applicants, Mr. Michael Conlon S.C. with Mr Garry O'Halloran B.L., submitted that the decision does not adhere to the standard of extreme care that is necessitated in papers-only appeals, and particularly in this...

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