E (B v) & E (O N) v Min for Justice & Refugee Applications Commissioner

JurisdictionIreland
CourtHigh Court
JudgeMR. JUSTICE BIRMINGHAM
Judgment Date10 June 2008
Neutral Citation[2008] IEHC 230
Date10 June 2008

[2008] IEHC 230

THE HIGH COURT

[870 JR/2006] and [868 JR/2006]
E (B V) & E (O N) v Min for Justice & Refugee Applications Commissioner

BETWEEN

B. V. E. AND O. N. E. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND B. V. E.)
APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM and THE REFUGEE APPLICATIONS COMMISSIONER
RESPONDENTS

REFUGEE ACT 1996 S11B

AKPOMUDJERE v MIN JUSTICE UNREP FEENEY 1.2.2007

STEFAN v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY 2001 4 IR 203 2002 2 ILRM 134

RYANAIR LTD v FLYNN & MCCAULEY 2000 3 IR 240 2001 1 ILRM 283 2000 ELR 161

AER RIANTA CPT v COMMISSION FOR AVIATION REGULATION UNREP 4.6.2003 2003/1/133 2003 IEHC 12

TRAORE v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2004 2 IR 607 2004/49/11175

N (A) v REFUGEE APPEALS TRIBUNAL & ORS UNREP BIRMINGHAM 10.6.2008 2008 IEHC 171

MCNAMARA v BORD PLEANALA 1995 2 ILRM 125

IMMIGRATION

Asylum

Credibility - Alleged error of fact - Whether alleged error of fact invalidated decision - Relevance of existence of statutory right to appeal - Whether question of availability of alternative remedy relevant where applicant seeking review in relation to credibility - Whether error of fact a proper matter for judicial review or matter for appeal -Whether error of fact within jurisdiction - Whether substantial grounds for seeking judicial review made out - Whether opportunity to probe issues as to error of fact at appeal hearing - Whether grounds relied on trivial, tenuous artificial or contrived - Aer Rianta cpt v Aviation Commissioner (Unrep, O'Sullivan J, 4/6/2003), A (OA) v Minister for Justice [2007] IEHC 169, (Unrep, Feeney J, 9/2/2007), McNamara v An Bord Pleanála (No. 1) [1995] 2 ILRM 125, N (A) v Refugee Appeals Tribunal [2008] IEHC 171, (Unrep, Birmingham J, 10/6/2008), Ojuade v Refugee Appeals Tribunal (Unrep, Peart J, 2/5/2008), T(AM) v Refugee Appeals Tribunal [2004] IEHC 219, [2004] 2 IR 607, Ryanair Ltd v Flynn [2002] 3 IR 240 and Stefan v Minister for Justice [2001] 4 IR 203 considered - Refugee Act 1996 (No 17), s 11 - Leave to seek judicial review refused (2006/870JR & 2006/868JR - Birmingham J - 10/6/2008) [2008] IEHC 230

E (B V) v Minister for Justice, Equality and Law Reform

Facts: The applicant minor, suing through her mother, alleged that the decision of ORAC holding her application to lack credibility was based on an error of fact as to her residence and a reference to s. 11B Refugee Act 1996. It was alleged that the minor would be exposed to female genital mutilation in Nigeria.

Held by Birmingham J. that in neither case substantial grounds had been made out and the application would be refused and both applicants would be left to their remedy by way of appeal. Fears expressed as to female genital mutilation were unimpressive. If any error occurred, it was within jurisdiction. References as to s. 11B were entirely understandable in the decision of ORAC.

Reporter: E.F.

1

MR. JUSTICE BIRMINGHAM delivered on the 10th day of June 2008

2

1. These two cases have been heard one immediately after the other, so I am giving one judgment that will deal with both cases. The cases are essentially linked, in the sense that the first named applicant (2006/870 JR) is the mother of the second named minor applicant (2006/868 JR) and has acted as next friend in relation to the second set of proceedings. At issue in these proceedings are challenges to a decision/recommendation of the Office of the Refugee Applications Commissioner ("ORAC"), dated 7th July 2006, which recommended that the applicant not be declared to be a refugee within the meaning of the Refugee Act 1996 (as amended).

I. The Adult Applicant's Case
3

2. The adult applicant states that she is a national of Nigeria, born on 7 thDecember, 1966. She states that she arrived in the State on 7 th June, 2006, having travelled by road from Lagos to Ghana, by air from Ghana to Milan and by train and ship from Milan to Ireland. It is her case that she is at risk of persecution in Nigeria, arising from her husband's political activities. Her husband is, she says, a member of an organisation known as the youth activity group, which has resulted in her being targeted by the Nigerian military.

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3. In particular, the adult applicant refers to an incident that she says occurred on 17 th February, 2006, when armed military personnel came to the village where she was living and began dragging people from their houses. The military mainly focussed on men on that occasion. This enabled the applicant to make her escape from the incident scene, though she states that she was the subject of brutal beating by the military on this day. The applicant then moved to another village, Seigbene, and then to another village again, Odi, and again from there to a further village, Akbore, where she remained for about two months before leaving Nigeria.

5

4. The adult applicant expresses her concerns now partly in terms of a fear that she - and no doubt other persons in similar positions to her - would be arrested as a means of applying pressure on her husband to come out of hiding.

The ORAC decision/recommendation
6

5. In her negative decision/recommendation in respect of the adult applicant, the ORAC-authorised officer felt that there were - to use her phrase - certain credibility issues surrounding the applicant's testimony which served to undermine her allegations. The ORAC officer suggested that if the military were looking for the applicant, they could have located her during the February to June period while she was in Nigeria, and that this was particularly so having regard to the resources available to a military force. The ORAC officer concluded, arising from this view, was that it was unlikely that the adult applicant would be targeted if returned to Nigeria. The ORAC officer also considered that the adult applicant's account of the escape indicated that she was not, in fact, being targeted personally and that part of her "testimony" was seen as lacking credibility.

7

6. The ORAC officer also criticised the applicant for her lack of knowledge about a particular location in Nigeria, the city of Warri. I will return to this aspect, which is at the heart of the challenge.

The Issues in the Case
8

7. There are essentially two bases for the applicant's challenge to the ORAC decision/recommendation, one primary and one secondary, which I would summarise as follows:-

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a a. An alleged error of fact as to whether the applicant was born in or was a resident of Warri; and

10

b b. A reference to section 11B of the Refugee Act 1996, as amended.

11

8. Before assessing these matters in detail, I pause to note that what is in issue here is a challenge to a recommendation of ORAC. This in a situation where the applicants have a statutory right to appeal, which appeal will involve an oral hearing. More particularly, this is a challenge based on an alleged error of fact which, it is said, invalidates the decision and, in particular, undermines the conclusion in relation to credibility. Now, as I have said more than once, the relevance of the existence of an appeal has been considered in a number of different contexts, and in particular has been considered in the asylum context.

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9. The decision in Akpomudjere v The Minister for Justice, Equality and Law Reform & Ors (unreported, High Court, 1 st February,...

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