A (C) v Refugee Applications Commissioner and Others

• Jurisdiction: Ireland
• Judge: MR. JUSTICE BIRMINGHAM
• Judgment Date: 02 July 2008
• Neutral Citation: [2008] IEHC 261
• Court: High Court
• Date: 02 July 2008

[2008] IEHC 261

THE HIGH COURT

[214 JR/2007]

A (C) v Refugee Applications Commissioner & Ors

BETWEEN

C. A.

APPLICANT

AND

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

RESPONDENTS

STEFAN v MIN JUSTICE & REFUGEE APPEALS AUTHORITY 2001 4 IR 203 2002 2 ILRM 134

F (A) v MIN JUSTICE & ANOR UNREP HERBERT 8.5.2008 2008 IEHC 138

LEARY v NATIONAL UNION OF VEHICLE BUILDERS 1971 CH 34

REFUGEE ACT 1996 S11A(3)

REFUGEE ACT 1996 S16A

Z (A) v REFUGEE APPLICATIONS COMMISSIONER & ANOR UNREP MCGOVERN 6.2.2008 2008 IEHC 36

N (FR) & ORS v MIN JUSTICE UNREP CHARLETON 24.4.2008 2008 IEHC 107

OPEOGUN v MIN JUSTICE UNREP BIRMINGHAM 27.6.2007 EX TEMPORE

CANADA (AG) v WARD 1993 2 SCR 689

B (OG) v MIN JUSTICE UNREP BIRMINGHAM 3.6.2008 2008 IEHC 229

K (G) & ORS v MIN JUSTICE & ORS 2002 2 IR 418 2002 1 ILRM 401

N (FR) & ORS v MIN JUSTICE UNREP CHARLETON 24.4.2008 2008 IEHC 107

PANTSULAYA v MIN JUSTICE & ANOR 2003 4 IR 200 2003/44/10658

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 ART 7

R (OBASI) v SECRETARY OF STATE FOR THE HOME DEPARTMENT UNREP QUEEN'S BENCH (ADMIN) 16.2.2007 2007 EWHC CIV 381 (ADMIN)

BITI v RYAN (REFUGEE APPEALS TRIBUNAL) & ORS UNREP FINLAY GEOGHEGAN 24.1.2005 2005/4/827 2005 IEHC 13

REFUGEE ACT 1996 S11(6)

IMMIGRATION ACT 2003 S10

IMMIGRATION ACT 2003 S20

REFUGEE ACT S20

MOYOSOLA v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP CLARKE 23.6.2005 2005/40/8261 2005 IEHC 218

1 MR. JUSTICE BIRMINGHAM delivered on the 2nd day of July 2008

2 1. The applicant in the present this case is a Nigerian national, born on 7 ^th November, 1976, who arrived in this State on 18 ^th December, 2006 and then applied for asylum. He was interviewed by an officer of the Office of the Refugee Applications Commissioner ("ORAC") on 31 ^st January, 2007 and a decision/recommendation issued on 1 ^st February, 2007 that the applicant should not be declared to be a refugee. The applicant has sought to challenge that decision and, by order dated 10 ^th December, 2007, leave was granted to seek judicial review. I understand the granting of leave was not opposed by the respondents.

The Basis for the Claim of Asylum

3 2. The applicant puts his entitlement to asylum on the basis that he was a former member of the Movement for the Actualisation of the Sovereign State of Biafra ("MASSOB"), an organisation which he says he joined in 2005. In deciding to join the organisation, he was influenced by the fact that his father was a member. However, he and his father separately withdrew from MASSOB and his father certainly and perhaps the applicant, although there seems a little uncertainty about this, joined the People's Democratic Party ("PDP"), a party described as mainstream. It is, in fact, a party that in recent times has been the party of government. The PDP received the highest vote in the 1988 municipal election and in the 1999 state election. It won an overall majority in both houses in the federal election of that year and, again, won big majorities in the legislative and presidential elections in 2003.

4 3. The applicant indicates that he and his father, by withdrawing from MASSOB, incurred the hostility of that organisation, which suspected his father - wrongly, he says - of passing information about the movements and activities of MASSOB to the police. The applicant states that shots were fired at him on one occasion by two persons on a motorcycle. It is implicit in the application that he believes MASSOB to be involved in this incident. In the aftermath of this incident, the applicant's father arranged for him to leave Nigeria and travel to this State, initially using a passport which did not contain his photo or name.

The Issues in the Case

5 4. Four issues are raised in the recommendation of the Office of the Refugee Application Commission, ("ORAC"), relevant to the question of whether the applicant should be declared a refugee. These are:

6 a a. The credibility of the applicant;

7 b b. The availability of state protection;

8 c c. The possibility of internal relocation; and

9 d d. Reliance on country of origin information.

10 5. I would note at the outset that there is a disagreement between the parties as to whether there was a concluded finding in relation to credibility.

11 6. Each of these issues is the subject of criticism and requires consideration.

Context of the Present Application

12 7. Before coming to the specifics of the challenge, it is appropriate to put the present challenge in context. This is a challenge to a recommendation of ORAC. It therefore raises for consideration what relevance is to be accorded to the availability of an alternative remedy in the form of a statutory right to appeal to the Refugee Appeals Tribunal ("RAT"). The question of the extent to which the availability of an alternative remedy by way of appeal is relevant has been considered by our courts in many different context, including the Planning and Compensation Code, District Court appeals and, most immediately, the asylum context.

13 8. The starting point for consideration of the issue of the asylum context must be the case of Stefan v The Minister [2001] 4 IR 2003, which makes clear that the whole asylum process is a two-stage one. It follows, therefore, that an applicant is entitled to fair procedures at each stage. It is, however, worth noting how fundamental was the defect in issue in Stefan, where documents were never translated and so were never considered at all in the first instance.

14 9. The law in this area has been helpfully reviewed in Akpomudjere v The Minister for Justice, Equality and Law Reform & Ors (unreported, High Court, Feeney J., 1 ^st February, 2007). It seems to me that what emerges from the consideration of the cases that Feeney J. referred to is that the existence of a right to appeal is not, per se, a bar to relief but that the existence of a real and substantial alternative remedy is a highly relevant consideration when the question comes to be considered as to how the Court is to exercise its undoubted discretion to grant or refuse relief.

15 10. Ms Carroll, Barrister-at-Law on behalf of the applicant, has placed heavy reliance on the case of A.F. v The Minister for Justice, Equality and Law Reform & Anor [2008] IEHC 138 (Herbert J.), and also on the English case of Leary v National Union of Vehicle Builders [1971] Ch 34. In A.F., Herbert J. appears to approve of the line of authorities, indicating that the issue goes to discretion. He felt, however, that it was appropriate that leave be granted in that case, given the criticisms that were being advanced. He appears to have been influenced by the provisions of section 11A (3) and 16A of the Refugee Act 1996 (as amended), which provide that where an applicant appeals, it is for him to show that he is a refugee and that the Tribunal is required to consider the report of the Commissioner. The judgment of Megarry J. in Leary contains some broad statements of principle expressed in characteristically forceful language. The ratio of the case seems to be founded in the fact that an applicant was expelled at a meeting of which he had no notice. Thus, there was never any real hearing at all in the first instance.

16 11. Ultimately, it seems to me that it is not possible to determine what the most appropriate remedy is without considering the nature of the challenge and which aspects of the challenge are made out. Obviously, if none of the criticisms are substantiated, the issue will not require further consideration. However, if some criticisms at least are made out, then it becomes necessary to consider whether the defects are so fundamental that the applicant has been denied consideration by a two-stage process or whether, alternatively, the remedy by way of appeal provided by statute is one that provides an adequate remedy. In deciding whether the statutory right of appeal is inadequate, regard should be had to the approach identified by McGovern J. in Zadeh v The Refugee Applications Commissioner & Anor [2008] IEHC 36, who commented:

"While there may be circumstances in which an error made by the RAC should properly be dealt with by an application for judicial review, the Courts should only grant leave to an applicant where the issues cannot adequately or conveniently be resolved before the RAT."

Standard of Review

17 12. The approach that this Court should take to review has also been canvassed during the course of proceedings. In that regard I draw attention to the case of N, E & O v The Minister for Justice, Equality and Law Reform [2008] IEHC 107, where it fell for consideration whether a heightened standard of review or the ordinary standard should apply when the Court is examining an application for subsidiary protection. Charlton J. commented that:-

"[…] a decision on the country of origin of an applicant and the availability of protection within its territory should be scrutinized if a judicial review is taken and the decision should only stand if it be a rational one that is fairly supported by the country of origin information."

18 13. That is what he felt the relevant Council Directive was seeking to achieve.

19 14. In Opeogun v The Minister for Justice, Equality and Law Reform ( ex tempore judgment, High Court, Birmingham J., 27 ^th June, 2007), I respectfully expressed myself to be in agreement with the approach taken by Charlton J. I commented that our legal tradition has long been to approach all cases involving human rights with particular care and caution and that that approach will of course be applied to the judicial review of asylum and immigration decisions.

(a) The Question of Credibility

20 15. In the first instance, it is...