E.D. v Refugee Applications Commission and Another

JurisdictionIreland
JudgeMR JUSTICE CHARLETON
Judgment Date22 February 2008
Neutral Citation[2008] IEHC 56
Date22 February 2008
CourtHigh Court

[2008] IEHC 56

THE HIGH COURT

[No. 454 JR/2006]
D (E) v Refugee Applications Commission & Min For Justice

BETWEEN

E.D.
APPLICANT
-and-
THE REFUGEE APPLICATIONS COMMISSION AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S16A

IMMIGRATION ACT 2003 S7(i)

HORVATH v SECRETARY OF STATE FOR THE HOME DEPARTMENT 1999 INLR 7

KIKUMBI v REFUGEE APPLICATIONS COMMISSIONER & MIN FOR JUSTICE UNREP HERBERT 7.2.2007 2007 IEHC 11

IMAFU v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (O'BRIEN) UNREP CLARKE 27.5.2005 2005/31/6380 2005 IEHC 182

REFUGEE ACT 1996 S11B

IMMIGRATION ACT 2003 S7(f)

O'REILLY v MACKMAN 1983 2 AC 237

STEFAN v MIN JUSTICE 2001 4 IR 203 2002 2 ILRM 134 2001/23/6290

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

MCGOLDRICK v BORD PLEANALA 1997 1 IR 497

Abstract:

Immigration - Asylum - Judicial review - Refugee - Leave - Substantial grounds - Refugee Act 1996 - Illegal Immigrants (Trafficking) Act 2000

Facts: The applicant sought leave to judicially review a decision of the respondent refusing her refugee status. The applicant was associated with a political group seeking independence on behalf of Biafra in Nigeria and claimed that her home had been burned down. The respondent had found that she lacked credibility

Held by Charleton J (ex tempore) that the respondent had assessed the applicant as not having given a sufficient account of her transportation to Ireland. It was not possible to conclude that the respondent had erred in its approach to the assessment of credibility. The applicant had not lodged an appeal, which was significant. The application would be refused.

Reporter: E.F.

1

MR JUSTICE CHARLETON delivered on the 22nd day of February, 2008,ex tempore

2

This is an application pursuant to s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 for leave to commence judicial review proceedings against the respondents. The respondent refused the applicant a declaration under the Refugee Act 1996 that she was a refugee and instead of appealing that finding to the Refugee Appeals Tribunal, she seeks leave to commence this judicial review. She is only entitled to commence such a case if her grounds are demonstrated to be substantial, the test that the legislation obliges me to apply.

3

I think for the purposes of this application, I am obliged to look at it in a way that ensures that I am satisfied that human rights are not infringed. All of these cases are basically questions of fact before the Commission or the Tribunal as to whether an applicant is a refugee as defined by s. 2 of the Refugee Act 1996. There is a burden on the Commission or, on appeal, the Tribunal to make an enquiry into the circumstances of the case, and there is a burden as well on applicants to show they have a well-founded fear of persecution, whereby they are outside their country and unwilling to return for a reason based upon persecution, on grounds of their ethnicity or religion or membership of a social group. Once there is an appeal the applicant must satisfy the Refugee Appeals Tribunal that the recommendation to refuse refugee status to an applicant before the Refugee Applications Commission was incorrect; S.16A of the Refugee Act 1996, as inserted by s. 7(i) of the Immigration Act 2003.

Persecution
4

That being the definition of section 2 of the Refugee Act 1996, the real issue almost always is whether this person is, or is not, a refugee. In this case, the applicant came to Ireland in December, 2005 and the account she gave was that she was associated with a political group which seeks independence on behalf of Biafra from the Federal Republic of Nigeria. People who are old enough will remember that Biafra had historically sought independence from Nigeria and there was a very bloody civil war in the 1960s with a dreadful toll in terms of starvation in its aftermath. The movement for Biafran independence has continued, according to the applicant, and the country of origin information certainly suggests that this is to some degree correct. The particular independence movement organization, MASSOB, of which the applicant claimed her husband to have been a member, is one which is frowned upon by the Nigerian state. So, is there information that suggests that there is persecution of those who seek the independence of Biafra? According to the relevant country of origin information, which I recite without disapproval or approval, things can get so bad for MASSOB members that there have been military operations to hunt for persons affiliated with the independence movement. From the country of origin information that was before the Refugee Applications Commission, I note that a large number of suspected MASSOB members, or sympathizers, are detained by the Nigerian government in Abuja and that the government has refused to release them on bail. An act of treason in Nigeria is punishable by the death penalty. Seeking to break up the national territory of Nigeria can be regarded, in some circumstances, as the offence of treason. In addition, despite the fact that no governor has signed a death penalty order for treason, there have been allegations of extrajudicial killings and there has been a claim put forward by one source that in Nigeria the police force frequently kills members of MASSOB, and others associated with it, with impunity. By reciting this, I am not finding that it is true but merely that such a case could be made to the respondents.

5

Therefore, it seems to me that if there is a factual basis upon which the applicant could claim to be associated with a political group, then there is perhaps a reasonable basis upon which she could claim that that political group is being persecuted. But the facts are crucial. As with the existence of a well known massacre in a well known place at a well known time, the issue is not so much whether the massacre happened but whether or not the applicant was part of the group that was thereby targeted. I cannot see that there is anything in these papers to suggest that this issue was approached by the Commissioner in a frivolous way. Rather, it is said in argument before this court that mistakes have been made in determining that the applicant does not have refugee status; that no country of origin information was put to the applicant; that an issue central to the ultimate decision was not put that the applicant that her husband resided in London for a substantial period of time; that credibility was examined in a vacuum; and that it should have been put to the applicant at the hearings that the Commissioner had doubts in relation to the account that she was giving. The real issue in this case is whether the Commission approached the question of the credibility of the applicant in the right way.

6

As to the country of origin information, it seems to me that the applicant has brought forward country of origin information, which I have just quoted in the earlier part of this judgment, and that this country of origin information could establish a degree of persecution of MASSOB members and their associates, but I do not know. It could establish it. There is an onus, certainly, on the Commission to make enquiries, but there is also an onus on an applicant to give a full and truthful account of events and that is the real issue in this case. I do not see that it was a matter influencing the Refugee Applications Commission that there was a negative finding against the applicant's husband who had, earlier than the applicant, applied for refugee status and had been refused it. The account relevant to the claim of persecution given by the applicant was that since her husband became involved in MASSOB, on the basis of a full-time job, he was working there all the time, every day, so she said, he had been arrested and that she as his spouse in consequence was frightened; that she had to move from her home to a different place where she was in a family compound; that her house there was burned down; that her husband left in terror; and...

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