C.O.I. v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 05 May 2006
• Neutral Citation: [2006] IEHC 136
• Date: 05 May 2006
• Court: High Court
• Docket Number: [2005 No. 887 JR],2005/887JR

[2006] IEHC 136

THE HIGH COURT

2005/887JR

ITAIRE v MIN FOR JUSTICE

ITAIRE v MIN FOR JUSTICE

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996 THE IMMIGRATION ACT 1999

AND THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

BETWEEN

CHRIS ONOS ITAIRE

APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S17(7)

S (E M) v MIN JUSTICE UNREP CLARKE 21.12.2004 2004/45/10370

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE ONIBIYO 1996 2 AER 901

TEWEDROS TADESSE HAILE v IMMIGRATION APPEALS TRIBUNAL 2002 INLR 283

LADD v MARSHALL 1954 1 WLR 1489

IMMIGRATION APPEAL TRIBUNAL EX PARTE AZIZ LATHAM 1999 EWHC 276 30.3.1999

R v SECRETARY OF STATE FOR THE HOME DEPT EX PARTE BOYBEYE UNREP NOURSE 14.5.1997

HALL v SIMONS 2002 1 AC 615

SHIRAZI v SECRETARY STATE FOR THE HOME DEPARTMENT 2004 2 AER 602

DIKILU v MIN JUSTICE UNREP FINLAY GEOGHEGAN 2.7.2003 2003/12/2596

O'KEEFE v AN BORD PLEANALA 1993 IR 39

GASHI v MIN JUSTICE UNREP CLARKE 3.12.2004 2004/19/4277

FASAKIN v MIN JUSTICE UNREP O'LEARY 21.12.2005

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

OSAYANDE & LOBE v MIN FOR JUSTICE 2003 1 IR 1

IMMIGRATION

Asylum

Refugee status - Fresh information - Request for permission from Minister for further application for refugee status - Positive decision in respect of asylum application of sister-in-law of applicant on similar grounds- Test applicable to fresh evidence claims -Whether appropriate test applied by Minister in considering request - Whether substantial grounds - Whether O'Keeffe test appropriate where protection of constitutional and human rights at issue - R v Secretary of State for the Home Department, ex p Onibiyo [1996] 2 All ER 901 considered; EMS v Minister for Justice [2004] IEHC 398 (Unrep, Clarke J,21/12/2004) and Gashi v Minister for Justice[2004] IEHC 394 (Unrep Clarke J, 3/12/2004) followed - Refugee Act 1996 (No 17),s 17(7) - Leave granted (2005/887JR -MacMenamin J - 5/5/2006) [2006] IEHC 136; [2007] 1 IR 718

I(CO) v Minister for Justice, Equality andLaw Reform

the applicant was refused recognition as a refugee, ultimately, by the Refugee Appeals Tribunal. He then sought permission from the respondent to make a further application for asylum, the respondent's consent being required pursuant to section 17(7) of the Refugee Act 1996, as amended, on the basis of the availability of fresh information not previously available. The application was refused by the respondent. The said information relied upon by the applicant was the fact that his sister in law had been granted asylum by the Refugee Appeals Tribunal, her claim being predicated on essentially identical facts and country of origin information as his. The applicant then sought leave to institute judicial review proceedings against the said refusal.

Held by Mr Justice MacMenamin in granting leave that it was arguable that the respondent had failed to apply the correct test in determining whether to re-admit the applicant to the asylum process, namely whether there was a realistic prospect that a favourable view could be taken by the statutory bodies charged with the task of assessing the fresh claim for asylum on the basis of the new information despite the unfavourable conclusion reached in the earlier claim. Further, where constitutional or human rights were at stake, it was arguable that the standards of judicial scrutiny that applied to normal judicial review cases could fall short of what was required for their protection and on that basis it was arguable that the respondent's decision was irrational.

Reporter: P.C.

1 EX TEMPORE JUDGMENT by Mr. Justice John MacMenamin on the 5th day of May, 2006.

2 The applicant is a national of Nigeria.

3 The essential facts upon which this application is based are that on the 26th May an application was made to the respondent requesting his permission for a further application for a declaration of refugee status to be made by the applicant, his consent being required pursuant to s. 17(7) of the Refugee Act 1996. The application was stated to be based on the availability of fresh information which was not previously available and/or through no default of the applicant not previously presented in the course and processing of the applicant's application for refugee status by the office of the Refugee Applications Commissioner (RAC) and the Refugee Appeals Tribunal (RAT).

4 The fresh information is stated to be matters concerning the successful outcome, OF an application for refugee status made by the applicant's sister-in-law Hannah Itaire, and in particular the content of a positive recommendation of the Refugee Appeals Tribunal in the appeal of Hannah Itaire.

5 The applicant's case is that the background circumstances, reasons, and basis for fear of persecution of Hannah Itaire are extremely similar to that of the applicant and that the applicant resided as a family member with Hannah Itaire since 1997. It is further submitted than an examination of the content of the respective applications for refugee status of the applicant and his sister-in-law Hannah Itaire discloses a very close similarity in the background and basis for the applications. They are similarly situated persons from the same family with the same reasons and basis for their fear of returning to their country of origin. It is further submitted that an examination of the decisions of the Refugee Appeals Tribunal in the appeal of the applicant and that of his sister-in-law discloses that the same objective material and basis submitted before the Tribunal members who adjudicated the appeals reached conflicting conclusions when presented with the same objective material.

6 By letter dated 21st July, 2005 the applicant was informed by the respondent that he had refused the said application pursuant to s. 17(7) of the Refugee Act 1996. As this letter forms an essential part of the case it is appropriate that it should be quoted in full. It read

"Dear Sirs

I am directed by the Minister for Justice Equality and Law Reform to refer to your letter of 26th May, 2005 on behalf of your above named client.

It has been noted that in your letter you referred to the successful outcome of a relatives application. It should be borne in mind that each asylum application is assessed on its own individual merits and consequently, comparison cannot be accepted as having relevance. The request to have Mr. Chris Onos Itaire readmitted to the asylum process under s. 17(7) of the Refugee Act 1996 as amended, has been considered. Having examined the submissions, made in support of this request and the earlier recommendations of the Refugee Applications Commissioner and the Refugee Appeals Tribunal it was decided that the new evidence submitted does not significantly add to the likelihood of the applicant qualifying for asylum on the totality of the evidence already available and considered. As a result it has been decided to refuse your client's request ...".

7 Section 17(7) of the 1996 Act as amended provides:

"7. A person to whom the Minister has refused to give a declaration may not make a further application for a declaration under this Act without the consent of the Minister".

8 The essential point which arises for consideration in the instant case is whether the applicant has established to the requisite standard substantial grounds in order to permit him to pursue the relief of judicial review.

9 It is not seriously in dispute that the preponderance of material which was before the two tribunal members was the same. In the case of the applicant's sister-in-law the tribunal member Ms. Margaret Levey concluded that the applicant's was supported by country of origin information and that the reasons for her circumstances and fear of persecution were directly related to her husband's involvement with the Urhobo Progressive Union and other organisations whose aims were the promotion of Urhobo rights in Warrai Nigeria. The applicant in the instant case is the "younger brother" referred to in his sister-in-law's case. In her decision the tribunal member Ms. Levey sets out and events giving rise to Hannah Itaire's fear of persecution and her flight with particular reference to the manner in which the applicant's elder brother Hannah Itaire's husband was targeted because of his political activity and ethnicity.

10 In the course of her decision Ms. Levey states that the Delta area is riven by ethnic tensions driven by conflict over the distribution of oil wealth. She further outlines country information indicating that there was a disturbance in August 2003 resulting in the death of hundreds of people and that a newspaper article submitted by the applicant's sister-in-law in support of her application (which article the applicant also submitted in support of his application) indicated that her husband Michael Itaire and his family had been missing since he survived the violent attack on his Warri residence by militia men. The article further states that what occurred to his brother may not be unconnected with a report that influential oil bunkerers had been identified and implicated for involvement in the Warri crisis. Ms. Levey accepted the account presented by the applicant's sister-in-law as being coherent plausible and corroborated by newspaper articles.

11 In the course of his own hearing the applicant outlined his political involvement with the same political organisation and stated that the latter organisation had been started by his brother Michael. The relevant tribunal member who dealt with the applicant's case had before him the same newspaper article which was before the decision maker in his sister-in-law's appeal and which was accepted by way of objective information as being...