C.C. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice McDermott
• Judgment Date: 28 October 2014
• Neutral Citation: [2014] IEHC 491
• Date: 28 October 2014

C (C) v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

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

C.C.

APPLICANT

AND

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

RESPONDENTS

[2014] IEHC 491

[No. 404 J.R./2010]

THE HIGH COURT

Permission to apply for Judicial Review – Refugee Appeal Tribunal – Order of Certiorari – Fear of Persecution upon return – Homosexuality discrimination – Minister of Justice and Equality

In this case the applicant sought leave to apply for judicial review for an order of certiorari and other reliefs challenging the decision of the first named respondent, the Refugee Appeals Tribunal to affirm the recommendation to deny the applicant refugee status and challenging the minister of justice for refusing his application for refugee status under s. 17 of the Refugee Act 1996. The applicant professed to a Fear of persecution upon return to Nigeria on account of his homosexuality. The application for leave to apply for Judicial Review came before McDermott J. in the High Court.

McDermott J. considered carefully the submissions put forward by the applicant and the procedure followed by the tribunal in assessing his refugee status. The applicant claimed that he had been repeatedly beaten because of his sexual orientation in Nigeria. The tribunal recognized that as regards state protection, it was noted that while sexual relations between gay men were outlawed in Nigeria and that openly gay men were likely to face societal discrimination and isolation. However, the respondents also produced some evidence that questioned the creditability of the applicant”s homosexual claims, namely that his accounts about having a girlfriend were inconsistent with other records. McDermott J. decided in this instance the tribunal was unable to produce a clear finding as to the sexual orientation of the applicant. McDermott J. agreed that the correct approach in such cases is to apply the test established in United Kingdom in H.J. (Iran) v. S.S.H.D., taking into account whether the applicant lived openly as a gay man or intends to in the future, or felt obliged to live discretely by reason of the violence and threats of others and the failure of the state to offer any state protection to the gay community and/or to encourage discrimination against him on the basis of the criminalisation of sexual relations between men. The tribunal failed to make a finding on the core element of the applicant”s claim and the evidence in respect of his sexual orientation and is, therefore, satisfied that the applicant has established a substantial ground upon which to grant leave to apply for judicial review. McDermott J. was satisfied that the orders made by the Tribunal and the Minister should be quashed and the matter remitted for further hearing before a different tribunal member

REFUGEE ACT 1996 S17

EEC DIR 2005/85

D (HI) & A (B) v REFUGEE APPLICATIONS CMSR & ORS 2013 2 CMLR 31 2013 AER (D) 74 (FEB)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(1)

J (H) [IRAN] v SECRETARY OF STATE FOR HOME DEPT 2011 1 AC 596 2010 3 WLR 386 2011 2 AER 591 2010 UKSC 31

A (M) [NIGERIA] v MIN FOR JUSTICE & ORS 2011 3 IR 41 2011/1/143 2010 IEHC 519

Q (S) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (LINEHAN) UNREP MCDERMOTT 28.2.2013 2013/43/12458 2013 IEHC 94

A (EP) v REFUGEE APPEALS TRIBUNAL UNREP MAC EOCHAIDH 27.2.2013 2013/1/78 2013 IEHC 85

ADAMS v MIN FOR JUSTICE UNREP COOKE 17.12.2009 (EX TEMPORE)

E (O) v REFUGEE APPEALS TRIBUNAL & ORS UNREP SMYTH 30.3.2011 2011/20/4967 2011 IEHC 149

K (G) & ORS v MIN FOR JUSTICE & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

S (C) & ORS v MIN FOR JUSTICE & AG 2005 1 IR 343 2005 1 ILRM 81 2004/45/10305 2004 IESC 44

1 1. This is a "telescoped" hearing in which the applicant seeks leave to apply for judicial review for an order of certiorari and other reliefs challenging the decision of the first named respondent ("the Tribunal") to affirm the recommendation of the Refugee Applications Commissioner, made 28 ^th January, 2010, and notified to the applicant by letter dated 5 ^th February. The applicant also challenges the decision of the second named respondent (the Minister) refusing his application for refugee status under s. 17 of the Refugee Act 1996 (as amended). The main grounds originally advanced in the original application related to a challenge by the applicant concerning the suggested incompatibility of provisions of the Refugee Act 1996, with Council Directive 2005/85/EC which, by reason of the decisions of the CJEU in H.I.D and B. A. ( C-175/11), could no longer be maintained. The more limited ground advanced was based on the alleged failure of the Tribunal to make any clear findings as to whether the applicant's evidence in respect of his claimed homosexual orientation or history was accepted. The applicant also challenged the decisions on the grounds that the incorrect legal test was applied to the issue of internal relocation considered by the Tribunal. The notice of motion seeking relief is dated 1 ^st April, 2010, outside the period of fourteen days provided for pursuant to s. 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000. The applicant seeks an extension of time claiming that he has demonstrated good and sufficient reason to the court to do so.

Background

2 2. The applicant was born on 6 ^th May, 1979, and is a Nigerian national. He claimed to be homosexual and, as a result of persecution, fled Nigeria in fear of his life. He arrived in Ireland on 19 ^th January, 2009, and applied for asylum.

3 3. In his questionnaire he claimed that he had been repeatedly beaten because of his sexual orientation. He had been discriminated against within his church and was not permitted to enter it anymore. His family turned against him and threatened to have his boyfriend killed. The police treated his complaints with derision and his sexual orientation was treated by his neighbours and friends as an abomination. He has been threatened that he will be killed if he returns to his village. At his s. 11 interview he claimed to have lived in Enugu state from 1997 until 2006. Prior to this he lived in his home village. In 2006 he moved to a different town where he remained until November, 2008. He then lived in Lagos between November, 2008 and January, 2009.

4 4. In his interview he claimed that he realised he was homosexual when he was 17, which he later corrected to some time in or about 2004, and that he never had a relationship with a woman. He claimed that he engaged in his first gay relationship in Enuga in 2004, and that it lasted for approximately four years. People became aware of it through his partner. During this period he conducted the relationship while living in his home village. When his neighbours discovered the relationship, he was attacked in January, 2006 and ran away. Though he did not need medical attention, he went to the local police who laughed at him. He was barred from his local church. His dates in the course of the s. 11 interview varied and the interviewer drew his attention to the fact that he was very vague about the details of important events and the dates upon which they occurred. He left the village five months after being beaten and travelled to Enuga. He family searched for him. When in Lagos, he contacted his mother and his older sister who informed him that the...