B.Y. (Nigeria) v Refugee Appeals Tribunal and Others

JurisdictionIreland
JudgeMs. Justice Stewart
Judgment Date05 February 2015
Neutral Citation[2015] IEHC 60
CourtHigh Court
Date05 February 2015
Y (B)(Nigeria) v Refugee Appeals Tribunal & Ors
JUDICIAL REVIEW
No Redaction Needed
Approved Judgment
IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED)
IN THE MATTER OF THE IMMIGRATION ACT 1999
IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 20032003 SECTION 3(1)

BETWEEN

B.Y. (NIGERIA)
APPLICANT

AND

REFUGEE APPEALS TRIBUNAL MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM ATTORNEY GENERAL IRELAND
RESPONDENTS

[2015] IEHC 60

[No. 316 J.R./2011]

THE HIGH COURT

Immigration and asylum – Refugee status – Fear of persecution – Applicant seeking refugee status due to fear of persecution – Whether applicant should be confined to a paper-only appeal

Facts: The applicant is a Nigerian national. She was a police woman and was forced to flee Nigeria as a result of being repeatedly targeted by a criminal gang, who had already, she alleged, killed her mother, husband and daughter. She arrived in Ireland in November, 2010. She applied for asylum at the Offices of the Refugee Applications Commissioner (ORAC) claiming a fear of persecution. The applicant maintained during the asylum process that she had 9 years of formal education and had worked for 21 years as a police officer in Nigeria. She submitted a Nigerian “police warrant card” as her only evidence of identity. In February, 2011, she was advised by ORAC that the recommendation was that she should not be declared to be a refugee as she had not established a well-founded fear of persecution as required by s. 2 of the Refugee Act 1996. ORAC found, pursuant to s. 13(6) of the 1996 Act, that the applicant had not sufficiently displayed that she was a serving police officer in the city of Akure as claimed. The Commissioner further found that the applicant had no supporting knowledge of a significant criminal event in that area of Nigeria with links to the police station she stated she had been affiliated to. The Commissioner found that 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 was manifestly unfounded. The applicant appealed to the first respondent, the Refugee Appeals Tribunal, which affirmed the recommendation of the Commissioner. The applicant applied to the High Court seeking an order of certiorari by way of an application for judicial review quashing the decision of the tribunal to affirm the recommendation of the Commissioner. The applicant further sought an order remitting the appeal of the applicant for determination de novo by a separate member of the tribunal. The applicant”s submissions before the Court centred primarily on the provisions of s. 13(6) and, in particular, focused on the fact that the appeal to the tribunal was conducted on the basis of a paper review only.

Held by Stewart J that, having considered VM (Kenya) v Refugee Appeals Tribunal & ors [2013] IEHC 24, extreme care is required by tribunal members when conducting paper-only appeals. Stewart J accepted that the applicant being heard does not necessarily entail her being present at the appeal hearing; however, if the tribunal member is to effectively ignore and/or abandon the findings made by the Commissioner and upon which the s.13(6) decision was arrived at and then proceed to make further adverse credibility findings in respect of the applicant, it seemed to Stewart J that natural and constitutional justice, fair procedure and audi alteram partem require that the applicant should be afforded the right to be heard and/or have an input into the process prior to the matter being determined.

Stewart J held that she would grant leave and grant an order of certiorari quashing the decision of the tribunal member. She further made an order remitting the appeal of the applicant for a determination de novo by a different member of the tribunal. Stewart J held that the applicant remained bound by the s. 13(6) finding and is confined to a paper-only appeal. Stewart J held that it was not for the Court to direct the tribunal as to how it should deal with the practicalities of the rehearing; it was a matter for the tribunal to devise a mechanism to facilitate the applicant in having her views heard on the issues of concern to the tribunal member.

Application granted.

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S13(6)

REFUGEE ACT 1996 S13(6)(B)

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S13(5)

N (SU) [SOUTH AFRICA] v REFUGEE APPLICATIONS CMSR UNREP COOKE 30.3.2012 2012/33/9649 2012 IEHC 338

REFUGEE ACT 1996 S13(6)(E)

REFUGEE ACT 1996 S12(4)

REFUGEE ACT 1996 S16(16)

M (V) [KENYA] v REFUGEE APPEALS TRIBUNAL & ORS UNREP CLARK 29.1.2013 2013/31/9210 2013 IEHC 24

REFUGEE ACT 1996 S13(6)(A)

1

1. This matter was heard on the 14 th day of November, 2014, by way of a 'telescoped' application for leave to apply for judicial review together with the substantive leave sought.

2

2. The applicant seeks an order of certiorari by way of an application for judicial review quashing the decision of the first named respondent to affirm the recommendation of the Refugee Applications Commissioner and notified to the applicant by letter dated the 7 th April, 2011. The applicant further seeks an order remitting the appeal of the applicant for determination de novo by a separate member of the Refugee Appeals Tribunal (RAT).

BACKGROUND
3

3. The applicant is a Nigerian national born, on the 12 th December, 1969. She was a police woman and was forced to flee Nigeria as a result of being repeatedly targeted by a criminal gang, who had already, she alleges, killed her mother, husband and daughter. She arrived in Ireland on the 24 th November, 2010. She applied for asylum at the Offices of the Refugee Applications Commissioner (ORAC) on the 25 th November, 2010, claiming a fear of persecution in Nigeria from a criminal gang. The applicant maintained during the asylum process that she had 9 years of formal education and had worked for 21 years as a police officer in Nigeria. She submitted a Nigerian 'police warrant card' dated 2 nd July, 2004, as her only evidence of identity.

4

4. She completed an ASY1 form on the 26 th November, 2010, and on the 6 th November, 2010, she completed the application for refugee status questionnaire.

5

5. On the 27 th day of January, 2011, she was interviewed pursuant to s.11 of the Refugee Act 1996 (as amended). The interview was conducted in English.

6

6. By letter in writing dated the 7 th February, 2011, she was advised by ORAC that the recommendation was that she should not be declared to be a refugee and a s. 13(1) report, pursuant to the Refugee Act 1996 (as amended), was included with the said letter.

7

7. The report concluded that the applicant had not established a well-founded fear of persecution as required by the s.2 of the Refugee Act 1996 (as amended). The report found, pursuant to s. 13(6) of the Refugee Act 1996 (as amended), that the applicant had not sufficiently displayed over the course of the s.11 interview that she was a serving police officer in the city of Akure as claimed.

8

8. The Commissioner further found that the applicant had no supporting knowledge of a significant criminal event in that area of Nigeria with links to the police station she stated she had been affiliated to and had no documentation to support her contention that the events described in the questionnaire actually occurred.

9

9. Having regard to the these findings, s.13(6)(b) of the Refugee Act 1996 (as amended) applied to this application; the effect of such was that any proposed appeal, by the applicant in respect of the Commissioner's findings, to the tribunal, would be by way of a paper review...

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    ...& ors. [2012] IEHC 338; V.M. (Kenya) v. Refugee Appeals Tribunal & ors. [2013] IEHC 24; B.Y. (Nigeria) v. Refugee Appeals Tribunal & ors. [2015] IEHC 60; and S.K. v. Refugee Appeals Tribunal & anor. [2014] IEHC 520. 6 In relation to the decision of the commissioner, the applicant submitted ......
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