D.D.A. [Nigeria] v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 18 July 2012
• Neutral Citation: [2012] IEHC 308
• Court: High Court
• Date: 18 July 2012

A (D D) [Nigeria] v Min for Justice & Refugee Appeals Tribunal

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

D. D. A. [Nigeria]

APPLICANT

AND

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

RESPONDENTS

[2012] IEHC 308

[No. 708 J.R./2008]

THE HIGH COURT

IMMIGRATION LAW

Asylum

Error of law - Clear and intelligible reasons for decision - Hypothesis as to tribunal's reasoning - Credibility - Internal relocation - International protection - Subsidiary protection - Temporary permission to remain - Whether error of law - Whether decision unlawfully flawed and unsound - Whether inadequate adjudication of applicant's appeal - Whether legal incompatibility between application for refugee status and temporary permission to remain - Ruiz Zambrano v Office National d'Emploi Case C-34/09 [2011] ECR I-01177; Clare Co Council v Kenny [2008] IEHC 177, [2009] 1 IR 22; Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701; O'Donoghue v An Bord Pleanála [1991] ILRM 750 and Delacre v Commission (Case C-350/88) [1990] ECR I-395 considered - Refugee Act 1996 (No 17), s 13 - Immigration Act 1999 (No 22), s 3 - Guardianship of Infants Act 1964 (No 7), s 6A - Decision quashed (2008/708JR - Cooke J - 18/7/2012) [2012] IEHC 308

A(DD) v Minister for Justice, Equality and Law Reform

Facts: The applicant was a national of Nigeria. It was alleged inter alia that the Tribunal erred in basing his rejection upon a finding that protection by means of internal relocation was available, that the decision was flawed and unclear on the findings of a lack of credibility relative to internal relocation. It was argued by way of a preliminary objection that the applicant was not a refugee any longer and had temporary permission to remain until 2014. The Tribunal had found the applicant to have gone to Lagos and experienced no difficulty there for one week, thereby only addressing the question of internal relocation and had found little to support the claim in the country of origin information.

Held by Cooke J. quashing the Tribunal decision, that the explanation for impliedly rejecting the ground had not been stated. In the absence of an explicit finding of disbelief, the decision had to be read as an acceptance that at least some of the events had occurred such that he had some need for protection. The applicant was a refugee for the purposes of the application.

REFUGEE ACT 1996 S13

GUARDIANSHIP OF INFANTS ACT 1964 S6A

ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI (ONEM) 2011 AER (EC) 491 2011 2 CMLR 46 2011 2 FCR 491

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION)

CLARE CO COUNCIL v KENNY 2009 1 IR 22

MEADOWS v MIN FOR JUSTICE 2010 2 IR 701

O'DONOGHUE v BORD PLEANALA 1991 ILRM 750

DELACRE v EC CMSN 1990 ECR I-395

1 JUDGMENT of Mr. Justice Cooke delivered the 18th day of July 2012

2 1. By order of the Court (Cooke J.) of the 27 ^th July, 2011, the applicant was granted leave to apply for judicial review of the decision of the Refugee Appeals Tribunal dated the 17 ^th April, 2008, given upon his application for asylum under the Refugee Act 1996 (as amended). Leave was granted upon three grounds as follows:

3 (1) The Tribunal erred in law in basing the rejection of his appeal upon a finding that protection by means of internal relocation within Nigeria was available to the applicant without considering ground 7, of the notice of appeal dated the 10 ^th February, 2008, and the country of origin information cited therein and in failing to state any reason for the rejection of that ground;

4 (2) The decision is unlawfully flawed and unsound in that it is unclear and ambiguous as to whether the Tribunal member accepts or departs from the findings of lack of credibility on the applicant's claim contained in s. 13 of the Report of the Commissioner when proceeding to deal exclusively with the issue of internal relocation;

5 (3) The decision is an inadequate adjudication on the applicant's appeal in that it fails to consider and decide and to give reasons for rejecting ground 6, of the notice of appeal directed at the finding of the availability of state protection in Nigeria.

6 2. The applicant is a national of Nigeria who arrived in the State in January 2008, and made an application for asylum. The application was based upon his claim to fear persecution if returned to Nigeria as a result of his involvement in a dispute over a plantation boundary upon which he was required to adjudicate in his position of high chief of his village. He gave an account of having taken over from his father as chief in his rural village which gave him responsibilities in supervising village affairs, including resolving land and boundary disputes. He lived in the village in a house with his wife and daughter and also owned a poultry farm. He ruled on one boundary dispute which gave rise to disagreement among the villagers concerned and he claimed that his house was attacked and burned down. He said his wife had died as a result of the fire. He sent his daughter to live with an aunt.

7 3. He left the village and went to Lagos where he remained for a week before an agent arranged for his travel from Nigeria via France to Ireland at the beginning of January 2008.

8 4. In a report under s. 13 of the Act of the 1996, dated the 25 ^th January, 2008, the claim for asylum was given a negative recommendation based partly on doubts as to the veracity of the account he had given but also upon findings that he had not made sufficient efforts to secure protection in Nigeria by reporting the matter to the police. The Authorised Officer also made a finding as follows: “The applicant alleges that he could not relocate to anywhere in Nigeria as he believes he would be killed because of his involvement with land disputes. While this element of his claim cannot be proved (or disproved) it was not accepted that there was nowhere in his country he could go and live safely. Country of origin information from Nigeria would indicate that those who fear non state agents of persecution can quite easily relocate to prevent persecution occurring”. Annexed to the s. 13 Report was an extract from a UK Home Office, Border and Immigration Agency “Country of Origin Information Report” on Nigeria dated the 13 November, 2007, which cited at paras. 7.06 and 7.07 a British-Danish “Fact Finding Mission” Report to the effect, inter alia, that “[i]t is possible for Nigerians to relocate to another part of Nigeria to avoid persecution from non-state agents, however, those Nigerians who do relocate may encounter problems”. This was a reference to some individuals facing difficulties with regard to lack of acceptance by others in the new environment as well as lack of accommodation etc.

9 5. The hearing before the Tribunal took place on the 15 ^th April, 2008, and as already indicated, the appeal decision was given on the 17 ^th April, 2008.

10 6. Before dealing with the arguments addressed to the Court on the three leave grounds, it is necessary to rule upon a preliminary objection raised by the respondents arising out of events that have occurred since the judicial review proceeding was commenced and since leave was granted by the order referred to above. It was submitted that these developments clearly indicated that the applicant was not a refugee and had no need of international protection and that accordingly, the Court ought now to dismiss the proceedings as devoid of purpose.

11 7. The events to which this submission relates are as follows. The Tribunal appeal decision was apparently notified to the applicant and his then solicitors, the Refugee Legal Service, by letter of the 9 ^th June, 2008. The judicial review proceeding was issued out of the Central Office of the High Court on the 20 ^th June, 2008, but was not served upon the respondents until the 3 ^rd July, 2008. In the interim, on the 30 ^th June, 2008, after the expiry of the statutory period of fourteen days allowed for introducing a challenge by way of judicial review to a Tribunal decision, the Minister sent the applicant the standard “three options letter” under s. 3 of the Immigration Act 1999. At that point the first named respondent was unaware that the judicial review proceedings had been commenced.

12 8. No immediate response was apparently made by or on behalf of the applicant to the “three options” letter within the fifteen day period allowed, but on the 20 ^th November, 2009, that is, over a year later, the applicant through a different solicitor purported to make representations seeking leave to remain temporarily in the State under s. 3 of that Act. This application was based upon the fact that in the interim the applicant had formed “a long-term relationship” with an Irish citizen with whom he was living and a daughter was born to them on the 17 ^th June, 2009, and was accordingly, an Irish citizen. Although living together the applicant and his partner had not yet married as the latter was awaiting the outcome of divorce proceedings in respect of a previous marriage. (In March 2011, the partner consented to an order being made in the District Court under s. 6A the Guardianship of Infants Act 1964 appointing the applicant joint guardian of that child).

13 9. The Minister did not make any direct response to the representations and on the 31 ^st March, 2011, the solicitor in question wrote on behalf of the applicant notifying him of the joint guardianship and referring to the...