F. E. A. v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 06 March 2013
• Neutral Citation: [2013] IEHC 106
• Court: High Court
• Date: 06 March 2013

[2013] IEHC 106

THE HIGH COURT

[No. 91 J.R./2009]

A (FE) v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED), AND

IN THE MATTER OF THE IMMIGRATION ACT 1999 (AS AMENDED), AND

IN THE MATTER OF ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED), AND

IN THE MATTER OF THE IMMIGRATION ACT 2003 (AS AMENDED), AND

IN THE MATTER OF THE IMMIGRATION ACT 2004, AND

IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 SECTION 3(1)

BETWEEN

F. E. A.

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S13(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

HAY v O'GRADY 1992 1 IR 210 1992 ILRM 689 1992/2/502

A (S) & ORS v REFUGEE APPEALS TRIBUNAL UNREP CROSS 1.3.2012 2012 IEHC 101

O (FO) v REFUGEE APPEALS TRIBUNAL & ORS UNREP HOGAN 2.2.2012 2012 IEHC 46

A (OA) v REFUGEE APPEALS TRIBUNAL UNREP CLARK 24.2.2009 2009/2/336 2009 IEHC 93

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

Judicial Review - Asylum - Refugee Appeals Tribunal - Credibility findings - Rationality - Adequate reasoning - Clear findings - Country of origin information

Facts: The applicant was a Nigerian national who arrived in Ireland in May 2008. He claimed that his father had died earlier that year and that he had subsequently buried him underneath the original family home, as per tradition. After this had been done, the applicant claimed he was approached by up to 25 men who told him his father was a member of the ‘Ogboni Society’ and must be buried according to their practices. They also demanded two human heads to be used in the reburial. The applicant then said he approached police who were unwilling to help. As a result of harassment by Ogboni members who threatened to kill the applicant if he did not comply with their requests, the applicant fled to Lagos. However, he claimed he felt uncomfortable when he seen Ogboni signs, as well as considering the city to be busy and noisy, and left for Ireland after two months using a forged passport he had purchased from a stranger who had approached him at the airport..

Upon arrival in Ireland, the applicant did not immediately apply for asylum as he claimed he was not aware of the process. He said he had stayed with a person named ‘Alex’ until his arrest by An Garda Síochána. An application for refugee status was subsequently made and refused on the 5 ^th August 2008. It was the Commissioner”s view that whilst information on the Ogboni Society was limited, there was no suggestion in what was available that the group was a sect involved in evil rituals, and was more likely to be a private members” club. In light of this, it was held that the applicant”s account of his meetings with members of this group was unbelievable. It was further held that the applicant”s fear of reprisal whilst in Lagos was unreasonable given the population there. Finally, the applicant”s account of how he was approached by a stranger at the airport and provided with a passport was held to be implausible. The applicant appealed the decision and this was subsequently refused by the Refugee Appeals Tribunal for the same reasons, adding that the applicant lacked credibility in his demeanour.

The applicant sought leave to apply for judicial review of the Refugee Appeals Tribunal”s decision on the basis that the finding that the applicant lacked credibility in his demeanour was made without any reasoning. The applicant also claimed that the Tribunal had been selective in considering country of origin information in relation to the Ogboni Society, and had disregarded information supportive of the applicant”s account. Finally, the applicant claimed the Tribunal had declared his account of how he was approached by a stranger at the airport to be lacking credibility without providing an explanation.

Held by McDermott J that in terms of the finding that the applicant lacked credibility in his demeanour, this finding was only one of several reasons for refusing the appeal. It was clear that the main reason for refusal was the implausible nature of some aspects of the applicant”s account. As it was not the primary reason for refusal, it was held that elaboration on the applicant”s demeanour was not necessary. In relation to the country of origin information, it was held that there was nothing within the documentation that suggested the Ogboni Society was involved in burial rituals that used human heads. The applicant”s contention that information that supported his account was rejected was therefore plainly wrong. It was further noted that if this was a widespread practice of the society, it would be expected some mention would be made of it at least in the country of origin information.

In relation to the complaint that the Tribunal had declared the applicant”s account of how he acquired a forged passport and then travelled to Ireland to be implausible without giving an explanation, it was held that the Tribunal”s reasons were clear, rational and reasonable. The account given involved a series of unlikely events and it was evident that the Tribunal found that cumulatively, the story given was implausible despite the applicant had been given an opportunity to provide documentation in support. For these reasons, it was held that no substantial ground was offered that could challenge the decision of the Tribunal.

Leave to apply for judicial review refused.

1 1. This is an application by notice of motion seeking leave to apply for judicial review for an order of certiorari in respect of the decision of the first named respondent, the Refugee Appeals Tribunal, dated 22 ^nd December, 2008, to affirm the recommendation of the Refugee Applications Commissioner and notified to the applicant by letter dated 12 ^th January, 2009. That is the primary relief sought. Other reliefs are also sought but the appropriate relief to be considered, given the nature of the applicant's complaints, is for an order of certiorari and this was the focus of the applicant's written and oral submissions to the court in the course of these proceedings. The hearing proceeded on 1 ^st March, 2013, by way of a "telescoped hearing" whereby the parties invited the court to proceed to hear and determine the full application for judicial review should leave be granted by the court in the course of the same hearing.

2 2. Written submissions were furnished by both parties on that basis and the draft notice of opposition intended to be used in the event of a grant of leave to apply for judicial review was served.

Background

3 3. The applicant, a Nigerian national, was born on 15 ^th December, 1978. He lived in Warri, Delta State with his father and his father's sister and four tenants, prior to his father's death in either December, 2011 or January, 2012 - the applicant was unsure as to the exact date. His father took ill and was taken to hospital and after two weeks he died. The applicant took his body to the village of Oregun in Delta State to bury him. This was the original family home. The local tradition was that his father would be buried under the floor of the living room of the house: this was done. After the burial the applicant claims that up to 25 men came to the house and informed him that his father was a member of the "Ogboni Society" and he that did not have the right to bury his father. They informed him that the Society wished to rebury his father, though it was not clear where. He was informed that he should bring two human heads to the members of the Society so that they could be placed with his father's body in the course of the reburial. The purpose of this exercise was unclear. He was threatened that if he did not obtain two human heads from either living or dead persons, he would be killed and his head removed from his body and placed with his father's body in the course of the reburial.

4 4. The applicant then claims that he went to a police station and explained to a police officer what had happened but was informed that this had nothing to do with the police but had to do with "Ogboni people". He also claimed that "the Ogboni people gave me fourteen days to provide what they wanted, the human heads or they would use me for the sacrifice". He took advice from his village elders who advised him to return home to Warri. He claimed that this house was "tagged around with a red rope and the Ogboni sign was drawn all over the windows of the house". He said that he had to flee Warri to escape the Ogboni. He sold a farm, took his money and went to Lagos.

5 5. The applicant claimed that he remained in Lagos for a period of two months in an attempt to learn carpentry and set up a business. He said "I could not cope because any time I saw the sign that the Ogboni use, for example on a car or a ring, I was not comfortable. I did not want to stay in Lagos because it was too noisy and too busy".

6 6. The applicant claims that he then took advice from members of his church and they recommended to him that it would be better for him if he were to leave Nigeria. He claimed that he was never a member of the Ogboni Society himself. He had worked as a farmer and sold the farm for 2.2m naira. He feared that if he returned to Nigeria, the Ogboni people would kill him. He accepted that he was safe when he was living in Lagos where he had moved in February, 2008. He remained there for two months, before making the journey to Ireland. The applicant claimed that on receipt of the advice from his fellow church members to leave Nigeria, he went to the airport on 4 ^th May, 2008. He did not apply for or obtain a valid Nigerian passport. He stated it was his plan to get a visa. He claimed that he stood in a queue for a visa at the airport when a uniformed man approached him....