E (C) v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 11 January 2012
• Neutral Citation: [2012] IEHC 3
• Court: High Court
• Date: 11 January 2012

[2012] IEHC 3

THE HIGH COURT

[No. 1301 J.R./2008]

E (C) v Min for Justice & Ors

BETWEEN/

C.E.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE REFUGEE APPLICATIONS COMMISSIONER IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

REFUGEE ACT 1996 S13(6)(C)

REFUGEE ACT 1996 S13(5)(A)

GARVEY v IRELAND 1981 IR 75

REFUGEE ACT 1996 S11(C)

REFUGEE ACT 1996 S16(8)

J (L O) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP HOGAN 16.12.2011 2011 IEHC 493

REFUGEE ACT 1996 S16(8)

O (A S) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 9.12.2009 2009/43/10639 2009 IEHC 607

REFUGEE ACT 1996 S13(10)

E (S B) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 25.2.2010 2010/17/4323 2010 IEHC 133

TOMLINSON v CRIMINAL INJURIES COMPENSATION TRIBUNAL 2005 1 ILRM 394

O'DONNELL v TIPPERARY (SOUTH RIDING) COUNTY COUNCIL 2005 2 IR 483

N (B N) v MIN FOR JUSTICE & REFUGEE APPLICATIONS COMMISSIONER 2009 1 IR 719

STEFAN v MIN FOR JUSTICE 2001 4 IR 203

ANISMINIC LTD v FOREIGN COMPENSATION COMMISSION 1969 2 AC 147

IMMIGRATION LAW

Asylum

Judicial review - Leave - Decision of commissioner - Nigerian national - Negative credibility findings - Whether right to fair procedures infringed - Whether failure to put to applicant that work reason for arrival - Duty to cooperate - Opportunity to explain given - Whether failure to inform applicant that details of incident relied upon could not be found - Failure to put question of internet searches to applicant - Option of internal relocation - Whether applicant should be required to appeal - Whether error of commissioner went to jurisdiction - Technical error - Garvey v Ireland [1981] IR 75; LOJ v Refugee Appeals Tribunal [2011] IEHC 493, (Unrep, Hogan J, 16/12/2011); O v Refugee Appeals Tribunal [2009] IEHC 607, (Unrep, Cooke J, 9/12/2009); E v Refugee Appeals Tribunal [2010] IEHC 133, (Unrep, Cooke J, 25/2/2010); Tomlinson v Criminal Injuries Compensation Tribunal [2005] ILRM 394; O'Donnell v Tipperary (South Riding) County Council [2005] 2 IR 483; BNN v Minister for Justice, Equality and Law Reform [2008] IEHC 308, [2009] 1 IR 719; Stefan v Minister for Justice [2001] 4 IR 203 and Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 considered - Refugee Act 1996 (No 17), s 13(10) - Leave refused (2008/1301JR - Hogan J - 11/1/2012) [2012] IEHC 3

E (C) v Refugee Appeals Tribunal

2 2 1.1 This application for leave to apply for judicial review of a decision of the Refugee Applications Commissioner on 30 ^th October, 2008, rejecting her claim for asylum. One might wonder why the applicant has not pursued the more conventional route of appealing this decision in the first instance to the Refugee Appeal Tribunal before then, if necessary, exploring the options of judicial review in the event that such an appeal were to be unsuccessful. It must be borne in mind, however, that the Commission invoked s. 13(6)(c) of the Refugee Act 1996 ("the 1996 Act") by finding that the applicant had not made an application for asylum as soon as reasonably practicable after her arrival in the State and had given no reasonable excuse in that regard for failing to do so.

2 2. The effect of this finding is that the applicant will be denied the benefit of an oral hearing before the Refugee Appeal Tribunal: see s. 13(5)(a) of the 1996 Act (as amended). While the applicant has sought to challenge the constitutionality of these provisions, this issue was not pursued at the hearing before me.

3 3. Before considering this question, however, it is necessary first to examine the background facts. The applicant, Ms. CE, is a Nigerian national who worked as a cook for a prominent Nigerian politician in Abuja. In December, 2007 she submitted an application for a visa to our Embassy in Abuja on the basis that she wished to attend the wedding of her brother in Cork. To this end, the applicant submitted a sponsor's letter from her husband and a wedding invitation.

4 4. This appears to have been a charade, since Ms. E. admitted during the course of the s. 11 interview that the groom was a friend and not her brother. One may well doubt whether the visa would have been granted but for this misrepresentation.

5 5. At all events, Ms. CE arrived in Ireland on a flight with Turkish Airlines on 28 ^th December, 2007, and she was scheduled to leave the State by 2 ^nd January, 2008, at the very latest. It is common case that she did not take the return flight to Nigeria and that the next time that she came to the attention of officialdom was in September, 2008 when was arrested by members of An Garda Síochána while working under a false identity in a public house in a Dublin suburb. The applicant applied for asylum shortly afterwards.

6 6. The applicant's case for asylum may be summarised as follows. She says that in November, 2007 three men (of whose identity she is unaware) approached her with a bag of money and a bottle and she was instructed to empty the contents of the bottle into the food of her politician employer. While she took the bottle, she refused to carry out the instruction. It is now contended that Ms. E.'s life is under threat as a result, since the three individuals wish to take retribution against her for failing to carry out their instructions.

7 7. Ms. E. further contends that since her arrival in Ireland she has learnt via a telephone call from her cousin that a woman who was travelling in her husband's car was shot dead, adding that she presumed that the assailants thought that the occupant of the car was her. This incident was said to have occurred on a motorway towards the end of December, 2007.

8 8. The Commission member found against the applicant on credibility grounds. Ms. E. maintained that the reason she had not taken the return flight home was because she was ill at the time, yet she acknowledged that she did not get medical attention at the time and nor did she make alternative arrangements to travel home after she recovered from illness. The Commission likewise pointed to the fact that the applicant had only applied for asylum some eight months after her arrival and then only after she had been arrested in circumstances where she had been working illegally. In those circumstances, the Commission not unnaturally drew the inference that the applicant's conduct was not consistent with a genuine fear for her life and that the main reason for her arrival in the State was to work illegally.

9 9. The Commission could not, moreover, find any evidence from any reputable source that any person corresponding to the person named by Ms. E. as having been killed by assailants was so killed. This was another reason to find against the applicant on credibility grounds.

The fair procedures challenge

10 10. The applicant contends, however, that the Commission member infringed her right to fair procedures in three separate respects, each of which we can separately consider.

Ground 1: The reason why Ms. E. came to Ireland

11 11. The first ground of challenge is that the Commission member never put specifically put to the applicant that the reason why she came to Ireland was to work. It is true that this question was not put in express and specific terms, but the applicant can really have been under no illusion as to the line of questioning being pursued by the Commission member. The applicant was asked a number of questions regarding the wedding, her failure to take the return flight, whether she sought medical help for illness and the circumstances in which she came to be working in the public house in the Dublin region.

12 12. There then followed this exchange:

"Q.	Why did you not apply for asylum when you first came to Ireland?
A.	I didn't want to be a burden on the government.
Q.	But you said that you feared for your life. That is not consistent with not applying for asylum?

A. When I hear that they kill a person in my husband's car, I just believed that they thought it was me."

13 13. To my mind, the applicant was given every reasonable opportunity to explain the delay and, indeed, the unusual circumstances in which she came to make an asylum claim. The obligation to respect fair procedures is not an exercise in pure formalism, but it is rather an opportunity to enable the person affected to fairly put his or her case. This obligation further sees to it that, in the words of the Preamble to the Constitution, "the dignity…of the individual may be assured", in that no agent of the State can otherwise invoke the power of the State in a manner affecting legal rights or interests without giving that a person such an opportunity: cf. by analogy the comments of Henchy J. in Garvey v. Ireland [1981] I.R. 75, 99. The notion of dignity of the individual - with its implication of the importance of treating all citizens with courtesy and respect - requires no less.

14 14. In the context of an asylum application, it is essentially a co-operative dialogue between the applicant and the decision-maker. This is, in any event, reflected in the language of s. 11C of the 1996 Act (as amended) which provides...