B.W. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 27 November 2015
• Neutral Citation: [2015] IEHC 759
• Docket Number: [2012 No. 335 J.R.]
• Court: High Court
• Date: 27 November 2015

IN THE MATTER OF THE REFUGEE ACT 1996, AS AMENDED, AND

IN THE MATTER OF THE IMMIGRATION ACT 1999, AND

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, AND

IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)

BETWEEN

B.W.

APPLICANT

AND

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

RESPONDENTS

(No. 2)

[2015] IEHC 759

Humphreys J.

[2012 No. 335 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – The Refugee Act 1996 – The Immigration Act 1999 – The Illegal Immigrants (Trafficking) Act 2000 – The European Convention on Human Rights Act 2003 – Fear of persecution – General credibility – Paper-only appeal – Failure of decision maker to inform the applicant of certain issues – Breach of fair procedures – certiorari

Facts: The applicant sought leave to apply for an order of certiorari by way of judicial review for quashing the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicant not be declared a refugee. The applicant contended that the first named respondent had failed to consider the relevant document and reached the credibility findings on a paper-only appeal without affording her an opportunity to adduce evidence. The first named respondent alleged that she feared persecution in the country of origin following the death of her husband, who was a leader of a known group.

Mr. Justice Richard Humphreys granted leave but refused to grant an order of certiorari to the applicant. The Court held that the finding of the first named respondent that the relevant document failed to demonstrate a link between the death of the husband and his affiliation with a known group was legitimate and rational. The Court, however, held that the finding by the first named respondent in relation to the death certificate of the husband of the applicant bearing the same date as the date of his death casted doubt for which the first named respondent needed to seek explanation from the applicant and thus, that part of the decision was erroneous. The Court opined that in a paper-only appeal, the decision-maker needed to exercise extreme care, but it would not be appropriate for the decision-maker to give specific opportunity to the applicant to comment in cases where the account given by the applicant was found to be implausible or there were contradictions in documents or the issues had adequately been dealt with by the prior forum. The Court held that where the decision-maker came into possession of new information changing the decision of the decision-maker substantially, it was bound to inform the applicant about that new information. The Court found that in the present case, the findings of the first named respondent could be sustained notwithstanding the erroneous findings in relation to the death certificate of the husband of the applicant as the certificate was not inherently implausible on its face, making it unforeseeable for the applicant that there could have been issues with it.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 27th day of November, 2015

1 The applicant's claim for refugee status arises from difficulties she encountered in Nigeria, her country of origin, arising from the involvement of her late husband as leader of a political group known as ‘ Asatoru’ in the Niger Delta. Following the killing of her husband on 2nd October, 2006, the applicant says she had to flee her home in fear of retribution from a number of sources. She particularly feared:-

(i) her husband's family who blamed her for his killing;

(ii) the political group to which her husband belongs, who were seeking money and documents from her; and

(iii) the governmental authorities in Nigeria on the grounds of her imputed political opinion, or a perception that she had knowledge relating to the political group in question.

2 The applicant arrived in Ireland on 17th March, 2007, but did not make an application for refugee status until 27th September, 2011. She accepts that she failed to make an application as soon as reasonably practicable after her arrival in the State. By reason of a finding to this effect, her appeal to the Refugee Appeals Tribunal was confined to an examination of the papers only, without an oral hearing, and she raises no complaint in relation to this procedure in the present case.

3 The s. 13 report of the Commissioner rejecting her claim is dated 8th November, 2011. The applicant's statements were found ‘ to be lacking in coherence and plausibility and her general credibility has not been established’.

4 A notice of appeal to the tribunal was issued on her behalf dated 29th November, 2011. Following this notice of appeal, a further letter dated 8th December, 2011was sent by her solicitors to the tribunal enclosing a newspaper article which was believed to be of relevance to her appeal. Mr. Michael Lynn, S.C. and Mr. Garry O'Halloran, B.L. who appeared for the applicant were not in possession of instructions at the hearing as to why this newspaper article was not put before the Refugee Applications Commissioner. The article was a copy of the front page of the Independent Monitor newspaper of 9th October, 2006, together with an article on p. 6 referring to the death of the applicant's husband.

5 The tribunal replied on 17th January, 2012, seeking the original newspaper and asking for observations on an apparent discrepancy between the article which referred to a death by shooting of the husband, and the medical certificate which did not refer to gunshot wounds as a cause of death. This letter of 17th January, 2012 was not formally exhibited but I was provided with a copy on an agreed basis.

6 The applicant's solicitors replied by letter dated 30th January, 2012, enclosing an original copy of the newspaper and offering what they considered to be an explanation for the discrepancy between the medical certificate and the newspaper article, essentially that the medical certificate was confined to the medical cause of death.

7 The tribunal ultimately decided to affirm the decision of the Commissioner and issued a decision dated 15th March, 2012, under cover of a letter dated 22nd March, 2012. This decision contained a number of adverse findings in relation to the applicant.

8 The notice of motion seeking leave to apply for certiorari by way of judicial review to quash the tribunal decision is dated 16th April, 2012, and is therefore approximately a week out of time.

9 I am informed that the applicant has since been given some form of leave to remain in the State, although Ms. Silvia Martinez, B.L., for the State was not in possession of instructions as to the exact duration of this leave to remain.

Extension of time

10 In view of the relatively short delay in issuing the notice of motion, the absence of objection from the State, the absence of prejudice to the State, and the furnishing of reasons for the delay, I will make an order extending time for the bringing of the application.

11 In my earlier judgment dated 17th November, 2015, I have already dealt with an application for leave to amend on behalf of the applicant and I now address the issues as they arise on the pleadings as so amended. On that date I also gave liberty to the respondents to file a formal statement of opposition, which had not previously been done in this case.

Was the decision tainted by a fundamental error of fact?

12 To understand the submission made by Mr. Lynn under this heading, it will be necessary to refer to the opening paragraph of the newspaper article relied on by the applicant, because the case made under this heading is that this article was essentially ignored.

13 The article begins by stating that:-

‘The leader of “ASATORU GROUP” one of the plethora of autonomous smaller Militias operating in the Niger Delta Region of Nigeria under the control of Niger Delta People's Volunteer Force leader Alhaji Mujahid Dokubo-Asari has been shot dead by unknown gunmen on 02/10/2006 …’

14 Turning to the decision of the tribunal, there is a reference to the newspaper article on p. 13. However, the tribunal goes on to say on p. 16 of the decision that apart from a particular court document,

‘the applicant has put forward no objective country of origin information, viz newspaper reports or police or medical reports to corroborate or substantiate her claims linking her deceased husband to well known Niger Delta resistance groups.’

15 The applicant's complaint is essentially that because the applicant did put forward a newspaper report which the tribunal had regard to in an earlier part of its decision, the tribunal fell into fundamental error by stating at this later point that the applicant had failed to put forward newspaper reports linking her deceased husband to ‘ well known Niger Delta resistance groups’.

16 However, the meaning of this latter phrase appears to be explained by the following paragraph of the decision, in which the tribunal Member states that country of origin information does not mention the ‘ Asatoro’ organisation.

17 I therefore can only read the statement about the failure to produce newspaper reports as meaning that in the view of the tribunal, the applicant had failed to put forward reports linking her husband to a ‘ well known’ resistance group as opposed to any resistance group. The tribunal was clearly aware of the linkage to the ‘ Niger Delta Peoples Volunteer Force’ because that is referred to (by what appears to be an incorrect acronym NDPVE) in the very next paragraph of the tribunal decision.

18 Given that the tribunal was clearly aware of the article and considered its contents, I can find no error of fact in this regard, still less a fundamental error of fact.

Did the tribunal findings...