A (CC) v Min for Justice & Refugee Appeals Tribunal (Garvey)

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 25 November 2014
• Neutral Citation: [2014] IEHC 569
• Court: High Court
• Date: 25 November 2014

[2014] IEHC 569

THE HIGH COURT

[No. 53 J.R./2009]

A (CC) v Min for Justice & Refugee Appeals Tribunal (Garvey)

JUDICIAL REVIEW

BETWEEN

C.C.A.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY AND BEN GARVEY SITTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

REFUGEE ACT 1996 S11B

BISONG v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (GARVEY) UNREP O'LEARY 25.4.2005 2005/4/814 2005 IEHC 157

KEAGNENE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (NICHOLSON) UNREP HERBERT 31.1.2007 2007/31/6465 2007 IEHC 17

E (M) v REFUGEE APPEALS TRIBUNAL & ORS UNREP BIRMINGHAM 27.6.2008 2008/22/4746 2008 IEHC 192

A (C) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (GARVEY) UNREP MAC EOCHAIDH 20.12.2012 2012/46/13992 2012 IEHC 564

Refugee Appeals Tribunal – Creditability Finding – Fear of Persecution and/or death – Asylum – Rationale behind discretion – Judicial Review

The factual matrix of this case revolved around a decision by the Refugee Appeals Tribunal (RAT) to deny an applicant Refugee Status based upon an alleged lack of creditability. The applicant, a Nigerian National, sought an order of certiorari against the decision of the RAT claiming that it was made irrationally and without reasons. The Applicant contended that he had a legitimate fear of persecution or even death from an organization known as the Movement for the Emancipation of the Niger Delta (MEND) if he returned back to Nigeria. The issue came before Barr in the High Court.

Barr J. carefully dissected the submissions from the applicant and the creditability hearing initiated by the RAT. The applicant explained that organizations like MENC are said to engage in violent activities and ran a campaign of attack on Shell Oil installations in Nigeria. Originally the applicant was apart of this said group but since had jumped ship and ended up employed by Shell. The applicant explained that with his help the company was able to secure the release of a number of hostages, which made him a target for the group. The applicant contended that he was then kidnapped and imprisoned, only to be later freed by an ally within the MEND. The RAT impugned the creditability of the applicant”s account of events before arriving in Ireland. Specifically the RAT was suspicious of the applicants alleged escape from captivity, his route taken to Ireland and his overall reasons for seeking asylum. Following the principles laid down in such cases such as M.E. v. Refugee Appeals Tribunal [2008], Barr J. made it clear that there is no doubt that a Tribunal Member should not base an adverse credibility finding on speculation or conjecture. Barr J. concluded that in the circumstances If the Tribunal Member was not going to accept the explanations given, it was necessary to set out in clear terms why this was so. As the three impugned findings were part of a wider set of credibility findings that had a cumulative effect in the decision, it is not possible to say whether these were major or minor credibility findings. Barr J stated that in this instance, it is necessary to quash the entire decision.

Background

1 1. The applicant was born in Nigeria in 1967. He married in 2000 and is the father of four children. It is the applicant's case that he was a member of the Niger Delta Vigilantes ("NDV") and subsequently was a member of the Movement for the Emancipation of the Niger Delta ("MEND"). These organisations are said to engage in violent activities and ran a campaign of attack on Shell Oil installations in Nigeria.

2 2. The applicant states that he had participated in the activities of these groups by driving other members to various sites, including to the houses of people who were going to be kidnapped by the group. The applicant stated that in 2004, he obtained employment with a company called RANC which did work for Shell. He stopped carrying out work for MEND at that time. He was employed as a business development manager by that company.

3 3. In or about 2005, he obtained work directly with Shell. He was employed as a telephone and fax operator with the company. It is the applicant's case that while working for Shell he imparted certain information to the company about the activities of MEND and in relation to the location of some of their hideouts. As a result of this information, the company was able to secure the release of a number of hostages, who had been kidnapped by MEND. It is also alleged that a number of MEND operatives were killed in the rescue operation.

4 4. It states that as a result of imparting this information, MEND operatives came to his house one night in November 2007. They kidnapped the applicant and brought him to a forest where he was placed in a deep hole.

5 5. The applicant states that the MEND operatives left him in the hole because they had other operations in relation to a ship to attend to. According to the applicant a friend of his, who was also a member of MEND, came on the second day and provided a rope with which the applicant was able to make good his escape.

6 6. The applicant states that he fled first to Zimbabwe, where he spent approximately one month hiding out in a friend's house in the city of Bulawayo. He then went to South Africa where he stayed for three months. He states that due to an upsurge in violence towards foreigners he decided to leave South Africa.

7 7. For the sum of $5,000, he was put in touch with an agent who secured his escape to Ireland via Dubai.

8 8. The applicant arrived in Ireland on 26 ^th May, 2008. He sought asylum on arrival in the State. The applicant filled out the usual ASY1 form and filled out the questionnaire and had an interview. His application for refugee status was declined by the Office of Refugee Applications Commissioner ("ORAC"). He appealed to the Refugee Appeals Tribunal ("the RAT"), who upheld the ORAC decision holding that the applicant's story was not credible.

9 9. In these proceedings, the applicant seeks an order of certiorari against the decision of the RAT dated 7 ^th December, 2008. In summary, the applicant claims that the credibility findings made in the RAT decision were made irrationally and without reasons.

10 10. Counsel for the respondent has argued that the credibility findings under attack in this application have to be viewed against the decision as a whole. In this regard, the following portion of the RAT decision entitled "The Applicant's Claim" is of relevance:-

"The applicant maintains that because he spoke to the tea lady in Shell, members of MEND kidnapped and tried to kill him by placing him in a deep hole. He was referred to his Questionnaire where he stated he gave information to Shell about the secrets of MEND containing, inter alia, strengths, weaknesses, tactics, training methods, numbers and locations, and also forest and swamp areas where this terror group held hostages. The applicant stated that as a result of disclosing this information, Shell workers were released without paying a ransom. It was put to him that these details would not represent casual talk to the tea lady resulting in the applicant having to flee Nigeria. The applicant replied 'I told the tea lady only because I didn't like what MEND were doing to Shell'. He was referred to his interview where he stated the Niger Delta Vigilante group is not a violent one and his role was to look out for troublemakers. It was put to him that country of origin information states that it was a violent organisation responsible for many attacks and killings. The applicant replied 'they were not violent'. He was asked why he did not claim asylum in South Africa and he replied 'I never thought of it'. He said that it...