Evuarherhe v The Minister for Justice Equality and Law Reform and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 26 January 2006
• Neutral Citation: [2006] IEHC 23
• Docket Number: [No. 887 JR/2004]
• Court: High Court
• Date: 26 January 2006

[2006] IEHC 23

THE HIGH COURT

[No. 887 JR/2004]

EVUARHERHE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL

JUDICIAL REVIEW

BETWEEN

PRINCE URUEMUSODE EVUARHERHE

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S2

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 100

IMAFU v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (O'BRIEN) UNREP HIGH COURT CLARKE 27.5.2005 2005/31/6369

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

IMAFU v MIN FOR JUSTICE & ORS UNREP HIGH COURT PEART 9.12.2005 2005/31/6380 2005 IEHC 416 WOMENS RIGHTS WATCH NIGERIA REPORT ON RIOTS IN KADUNA

GASHI v MIN FOR JUSTICE & ORS UNREP HIGH COURT CLARKE 3.12.2004 2004/19/4277

MMIGRATION AND ASYLUM Asylum Irrationality - Whether no evidence to support decision - Country of origin information - Whether no evidence that police protection available - Whether anxious scrutiny standard of review appropriate - Imafu v Minister for Justice Equality and Law Reform [2005] IEHC 416 (Unrep, HC, Peart J, 9/12/2005) and Horvath v Sec of State for The Home Department (1999) INLR 7 distinguished - Refugee Act 1996 (No 17), s 2 - Application refused (2004/887JR - Clarke J - 26/1/2006) [2006] IEHC 23

Facts: the applicant had been granted leave to challenge the decision of the respondent refusing his appeal that he not be declared a refugee. The applicant contended that the decision of the respondent was irrational in that it had no evidence to support its view that state protection would be available should he be returned to Nigeria.

Held by Clarke J in refusing the reliefs sought that the applicant had not established that there was no evidence to support the findings made by the respondent. That a state will not be found to have failed to provide adequate protection merely because it could be shown that some incidences of the violation concerned had occurred.

Reporter: P.C.

Mr. Justice Clarke

1. Introduction

2 1.1 In this case the applicant ("Prince Evuarherhe") has already been given leave to seek judicial review of a decision of the second named respondent ("RAT") in which the RAT refused Prince Evuarherhe's appeal against a previous decision of the Refugee Applications Commissioner ("RAC") to the effect that a recommendation in favour of granting refugee status be refused.

3 1.2 In the ordinary way the application for leave was on notice to the respondents and required Prince Evuarherhe to establish substantial grounds in order that leave be given. In this case the leave application was contested by the respondents. While a number of grounds had been advanced as the basis for the proposed challenge to the decision of the RAT, this court (Herbert J.) by order of 23rd June, 2005, granted leave which was limited to the following:-

"The applicant do have leave to apply for an order quashing the decision of the second named respondent dated 27th day of August, 2004, that the applicant's appeal against the recommendation of the Refugee Applications Commissioner be refused by way of application for judicial review in respect of the said applicant as set forth in paragraph D(1) of the said statement on the grounds set forth at paragraph E(4) in the aforesaid statement".

This substantive hearing is, therefore, confined to the issues in respect of which leave has been granted. Ground E(4) states as follows:-

"The recommendation of the second respondent was unreasonable and/or irrational and/or contrary to common sense in that he had no admissible or any evidence to support his view that State protection would be available to the applicant should he be returned to Nigeria. Moreover, such a view runs contrary to then (sic) evidence presented by the applicant both at the oral hearing and prior to same".

2 1.3 There is, therefore, only one issue in this case. It is as to whether the RAT, in coming to the decision which it did, can be said to have been irrational in the legal sense and in particular whether, as is contended, there was no evidence to support the view expressed by the RAT concerning the availability of State protection.

2. Background Facts

2 2.1 Having regard to the narrow focus of the challenge which I now have to consider, it is not necessary to set out in full all of the facts concerning the process before the statutory bodies charged with considering Prince Evuarherhe's application for refugee status. However, in brief terms Prince Evuarherhe is a Nigerian national having been born on 25th March, 1970. In circumstances to which I will refer he arrived and applied for asylum in the State in March 2004 and went through the normal process required of such asylum seekers. He completed the standard form questionnaire and was interviewed by an officer of the RAC on 19th April, 2004. The RAC made a recommendation on 6th May, 2004 to the effect that refugee status should not be recommended. Against that recommendation an appeal was brought by notice of appeal dated 31st May, 2004. The RAT conducted an oral hearing of that appeal on 29th June, 2004 and made a decision refusing the appeal and affirming the recommendation to deny refugee status on 27th August, 2004. That decision was communicated to Prince Evuarherhe under cover of a letter of 22nd September, 2004.

3 2.2 Insofar as material to the issues which I now have to address it should be noted that the basis of the decision of the RAC to refuse a recommendation in favour of refugee status, stemmed, in the main, from a finding of lack of credibility.

4 2.3 It would appear, however, that the reasoning of the RAT (which is, of course, the decision now under challenge) was different. The member of the RAT concerned having indicated that he was not satisfied that a well founded fear of persecution for one of the reasons set out in s. 2 of the Refugee Act, 1996 had been established set out his reasons as follows:-

2 "1. This applicant claims that he suffered persecution arising out of the riots that took place during the Miss World Contest in November 2002. Country of origin information has indicated that the police quelled the riots after a few days. Also, country of origin information has indicated that police protection would be available to this applicant concerning the alleged crime that was perpetrated on him. Therefore, I am of the view that State protection will be available to this applicant then (sic) paragraph 100 of the UNCHR Handbook would be relevant in this instance. That states as follows:-

"Whenever the protection of the country of nationality is available, and there is no ground based on a well founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee".

2 I note that this applicant spent approximately 12 months with his wife's uncle in Lagos. He was quite safe there. This applicant's fear must be well founded. The fact that the applicant lived, quite safely, for approximately 12 months after November 2002 indicates to me that this applicant's fear is not "well founded".

3 The applicant said that he is afraid to return to his father's tribe because is (sic) father is an idol worshipper. There is no...