BW v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 15 November 2017
• Neutral Citation: [2017] IECA 296
• Date: 15 November 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation: [2017] IECA 296 Record Nos. 2016/289 and 2016/453

Between:

BW (Nigeria)

APPLICANT/APPELLANT

- AND–

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

AND

IRELAND

RESPONDENTS/RESPONDENTS

[2017] IECA 296

Peart J.

Finlay Geoghegan J.

Peart J.

Hogan J.

Neutral Citation: [2017] IECA 296

Record Nos. 2016/289 and 2016/453

THE COURT OF APPEAL

Administrative & constitutional law – Judicial review – Refugee status – Refusal of status – Application for judicial review

Facts: The applicant had applied for refugee status following the shooting of her husband in Nigeria. Her application was based on the fear of persecution because of the shooting. Her claim had been refused due to adverse credibility findings and the High Court had refused her application for review of the refusal. She now appealed against the High Court’s decision, with the respondent appealing against the High Court’s order permitting a late amendment of her statement of grounds.

Held by Mr Justice Peart, that the respondent’s appeal would be dismissed and the applicant’s appeal allowed. In respect of the amendment, the High Court was satisfied that the amendment, although late, did not result in prejudice. The appropriate test for determining the matter was applied correctly. In respect of the applicant’s appeal, the Court was persuaded that the procedure in which the Tribunal made credibility findings was unfair, as it did not give the applicant sufficient opportunity to comment or address matters.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 15TH DAY OF NOVEMBER 2017

1 There are two appeals for determination. Firstly, there is BW's appeal against the that part of the order of the High Court (Humphreys J.) dated 27th November 2015 which refused her application for reliefs by way of judicial review of the decision of the Refugee Appeals Tribunal that she is not entitled to a declaration of refugee status (Appeal No. 2016/289). Secondly, there is the respondents' appeal against an order made by the High Court (Humphreys J.) dated 6th November 2015 permitting the applicant to amend her statement of grounds during the course of the hearing itself by the inclusion of an additional ground as set forth in the said order (Appeal No. 2016/453). Before addressing these appeals I will provide some factual background.

Some factual background

2 The applicant came to this country on the 17th March 2007 but did not apply for asylum until 27th September 2011 following her arrest by An Garda Siochana for failure to produce identification documentation when requested to do so. This four and a half year delay explains why her appeal to the RAT against the recommendation of the RAC that her application for refugee status be refused was a papers-only appeal, and not by way of oral hearing (see s.13(6)(c) of the Refugee Act, 1996, as amended). She accepted that her application was late and that she had no entitlement to an oral hearing. She submits nevertheless that the RAT was obliged to take particular care where the appellant has no opportunity to respond to concerns in the mind of the Tribunal, particularly where some of those concerns had not been raised at her ORAC interview, and have resulted in adverse credibility findings by the Tribunal. I will return to that question.

3 Her claim for asylum was based on a fear of persecution arising from the shooting dead of her husband in Nigeria on the 2nd October 2006. It appears that he was the leader of a political group in the Niger Delta region named “the Asatoro Group” which was opposed to the government, and that he was killed by supporters of the government. She claimed that each group blamed the other for her husband's death. She claimed that members of the Asatoro group visited her house after the shooting looking for money and documents which they claimed her husband had stolen from them, and told her that she would be killed also if she did not hand over the money and documents. She was forced to flee her home, and was also in fear of her husband's family who blamed her for her husband's death. She fears for her life if she were to return to Nigeria.

4 At her ORAC interview it was put to the applicant that research carried out by ORAC had not disclosed any group operating in Nigeria under the name “Asatoro”, and that the absence of such information ‘casts doubt on the existence of this group’. She was asked if there was anything she would like to say in response. She replied that this was very surprising, and added: ‘there are things that happen that aren't on the internet. You can't even get the internet to work in that area’.

5 The s. 13 Report prepared by ORAC indicates that certain documents were submitted by the applicant, which included a photocopy of a Medical Certificate of Cause of Death of the applicant's husband, two pages of information relating to the Niger Delta People's Volunteer Force, one page of information relating to the Asatoro Group to which was attached a copy judgment purporting to be from the Supreme Court of Nigeria referred to in that single page document. The author of the Report comments ‘ORAC is unable to verify the authenticity of these documents’.

6 ORAC considered that the applicant's claim may constitute a severe violation of basic human rights, and therefore may be considered persecutory in nature, and could, subject to the well-foundedness of the claim, satisfy the persecution element of the refugee definition. In the s. 13 Report ORAC examined whether a well-founded fear had been established, and concluded that it was not. It concluded also that it was difficult to accept that there was no mention of the Asatoro group in any of the available country of origin information, and that ‘this serves to undermine the credibility of her claim’.

7 ORAC also considered the documentation submitted by the applicant, and concluded that the lack of reference to the Asatoro group in the Supreme Court judgment submitted (which related to a bail application by a man named Asari who with others was facing charges of treasonable felony arising from incidents in 2004 and 2005) undermined the applicant's credibility. Other groups are mentioned in the report of the judgment but not the Asatoro group. At interview the applicant had stated that her husband had also been arrested for a period of one week in 2005, and on other occasions. However, ORAC concluded that it was difficult to accept that he would have been released if he was wanted for crimes serious enough to be considered a treasonable felony. ORAC stated that this served to undermine the credibility of the information provided by the applicant in relation to the Asatoro group which in turn served to undermine the credibility of the applicant's claim.

8 At interview the applicant was asked about her fears of what might happen to her if returned to Nigeria. She stated that the government in Nigeria believes that she is also a member of the Asatoro group since her husband was a member. It was put to her that it was difficult to accept that if this was the case, why she had not been arrested. She stated that she was questioned by the police at the time about her husband's involvement with the Asatoro group. But ORAC stated in the report that it appeared that she had been treated fairly by the police and had not been detained. The applicant was asked why, if she had been treated fairly then, she would not be treated fairly again in the future if returned. She replied that the police would not treat her fairly when the documents they were looking for had not been provided to them.

9 ORAC concluded that the applicant had not provided sufficient evidence to indicate that she was at risk from the Nigerian authorities. Its overall conclusion in relation to a well-founded fear is expressed in the final sub-paragraph of paragraph 3.3 of the report (page 5 of 7) as follows:

‘With regard to significant aspects of the applicant's claim, as laid out above, the applicant's statements have been found to be lacking in coherence and plausibility, and her general credibility has not been established. As such, it is not considered that the applicant has credibly established her claim within the meaning of Regulation 5(3) of the European Communities (Eligibility for Protection) Regulations 2006. Having regard to the above analysis of the application, as well as the finding in paragraphs 3.3.2 below [that relocation was not available to the applicant], it is considered that the applicant has not demonstrated a well-founded fear of persecution in Nigeria.’

10 An appeal was lodged with the RAT on 29th November 2011. The grounds were simply stated, being that the RAC erred in fact and in law, but without specifying in what way this occurred. In addition it was stated that further information and supporting evidence was on its way from Nigeria and would be provided within two weeks. In due course this was provided by the applicant's solicitor by letter dated 8th December 2011. It comprised a copy of the ‘Independent Monitor’ newspaper of the 9th October 2006 which carried a report on page 6 of the shooting dead of the applicant's husband on the 2nd October 2006, describing him as ‘the leader of the ‘Asatoru Group one of the plethora of autonomous smaller militias operating in the Niger Delta …’. It stated also that his widow [naming the applicant] ‘is hunted by the police and the family of her late husband in connection with circumstances surrounding her husband's death’. The solicitor stated also that he held the original of the newspaper should any further validation of same be required.

11 It would appear that by letter dated 17th January 2012 the RAT asked for the original newspaper and this was duly provided by letter dated 30th January 2012. That letter refers also to some concern raised by the RAT regarding the cause of death of the...