GGN v Refugee Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Stewart |
| Judgment Date | 26 June 2015 |
| Neutral Citation | [2015] IEHC 400 |
| Docket Number | [2011 No. 499 J.R.] |
| Court | High Court |
| Date | 26 June 2015 |
[2015] IEHC 400
THE HIGH COURT
JUDICIAL REVIEW
Stewart J.
[2011 No. 499 J.R.]
IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED) IN THE MATTER OF THE IMMIGRATION ACT 1999 (AS AMENDED) IN THE MATTER OF THE ILLEGAL (TRAFFICKING) ACT 2000 (AS AMENDED) AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)
Asylum, Immigration & Nationality – The Refugee Act 1996 – Appeal against the decision of the Refugee Appeals Tribunal – Fear of persecution – Whether applicant's evidence credible – paper-only appeal
Facts: The applicant sought an order of certiorari for quashing the decision of the first named respondent. The applicant contended that the first named respondent made negative credibility findings against the applicant and did not meet the requirement of taking extreme care while deciding credibility issues in the paper-only appeal.
Ms. Justice Stewart refused to grant an order of certiorari to the applicant. The Court held that in judicial review, re-scrutiny of the evidence was not allowed and the function and jurisdictions of the Court would be limited in ensuring that the impugned decision was not vitiated by any material error of law and principles of natural justice. The Court held that the assessment of credibility must be made by rationally analysing the entire evidence and reasons for adverse findings must be set out clearly. The Court found that the first named respondent rightly held that the evidence of the applicant was not reliable as it was full of inconsistencies.
This is a telescoped application for judicial review seeking an order of certiorari to quash the decision of the Refugee Appeals Tribunal (RAT) dated 10th May, 2011, and remitting the appeal of the applicant for de novo consideration by a separate tribunal member.
The within proceedings were brought outside the statutorily permitted time by a period of four days. No objection was raised by the respondents in relation to the necessary extension and given the amount of time that has elapsed since the commencement of these proceedings and the explanation offered, I am satisfied that it is appropriate to grant an extension of time in respect of these proceedings.
The applicant was born in Niger on 19th October, 1987, and moved to Nigeria when he was four years old with his mother. As the applicant did not provide documentation to confirm his nationality, his claim of persecution was examined in regards to two countries: Nigeria and Niger.
The applicant claimed that he had been a member of the Niger Delta Youth Movement (NDYM) since 2001, and was a full time coordinator for the party. He says he was involved in a number of protests for the party from 2002 to 2005 and that he was arrested and tortured in 2007. He claimed that while he was attending a protest at an international oil company in 2008, a substance was thrown into his house while his mother was there and she later died from an illness, which the applicant attributed to the substance. He stated that he was arrested by government soldiers in 2010 and brought to a shrine and forced to drink a potion, which was supposed to kill him. However, he claimed that he managed to escape to a house, where a man gave him some herbs that cured him. He then went to Lagos and reported everything to the police.
He stated that he met a named British national at protests in Lagos. This man arranged his travel from Lagos to Dublin, via London and the applicant then used this man's passport until he was arrested by the Gardaí in Ireland. The applicant arrived in Ireland in October, 2010 and was arrested by Gardaí in December, 2010 due to his possession of false documentation.
The applicant applied for asylum on 14th December, 2010. The applicant's s.11 interview was held on 23rd March, 2011. The authorised officer of the Refugee Applications Commissioner (RAC) determined that the applicant was unable to explain adequately why he didn't apply for asylum until arrested by Gardaí or why he was living in Ireland illegally. As a result, s.13(6)(c) of the Refugee Act 1996 (as amended) was applied, which provides:
‘That the applicant, without reasonable cause, failed to make an application as soon as reasonably practicable after arrival in the State’
On that basis, the appeal to the Refugee Appeals Tribunal was determined without an oral hearing. The decision of the commissioner dated 7th April, 2011, was appealed to the Refugee Appeals Tribunal by form two notice of appeal submitted on behalf of the applicant on 19th April, 2011. The Refugee Appeals Tribunal affirmed the decision of the Refugee Applications Commissioner by decision dated 10th May, 2011.
Section 6 of the tribunal's decision under the heading “analysis of the applicant's claim”, at paras. 2 to 5 states the following:
‘There are a number of problematic inconsistencies in the applicants (sic) evidence which undermine his credibility and thus question the legitimacy of his claim for international protection. In assessing credibility the Tribunal has approached the issue as laid out by Cook J. (sic) in the case of Radzuik - v - MJELR 24th July 2009.
During his interview he was asked basic questions concerning the party to which he allegedly belonged. He was unable to correctly name the president and gave no coherent reason for his lack of knowledge considering his long association with the NDYM. Country of origin information does not support his assertion of the number of oil companies operating in Bayelsa State. His inability to list the companies operating there is not indicative of someone allegedly involved with NDYM since 2001. His lack of basic knowledge allied to the omission of any proof of membership of NDYM seriously undermines the applicant. His evidence of arrest and forced consumption of poison by the soldiers coupled with his miraculous meeting with a man who gave the applicant herbs to counteract the poison is not credible especially when viewed in the light of the applicant's assertion the soldiers didn't shoot him because the bullets would not penetrate his body.
The applicant was in this country for two months and only claimed protection when apprehended whilst using false identity. If he was fleeing persecution he failed in his obligation to seek international protection as soon as practicable. Professor Hathaway has stated that such conduct goes to the credibility of an applicant. The applicant's account of transiting 3 international airports without handling his own passport is not credible. The Tribunal is satisfied that s. 11B of the Refugee Act 1996 (as amended) applies.
Cumulatively the foregoing fundamentally undermined the credibility of the applicant to such an extent that the Tribunal is unable to afford him the benefit of the doubt.’
The decision concluded by affirming the negative recommendation of the Refugee Applications Commissioner.
Counsel for the applicant, Mr Michael Conlon S.C., submitted that since the applicant's appeal was conducted as a papers-only appeal, extreme care needs to be taken. Counsel relied upon the case of V.M (Kenya) v. Refugee Appeals Tribunal & anor. [2013] IEHC 24, where at para. 22 Clarke J stated:
‘It is by now very well established that when considering a documents-only appeal, the standard required is of necessity one of extreme care as the Tribunal Member has no opportunity to form a personal impression of the applicant as at an oral hearing.’
The applicant also relied upon a decision of this court in B.Y. (Nigeria) v. Refugee Appeals Tribunal & anor. [2015] IEHC 60 where the above statement was endorsed. The applicant contended that extreme care was not taken in this case. The reason for a lack of oral hearing in this case was due to the s.13(6) finding as per the RAC report. At p. 69 of the booklet of pleadings it states:
‘The applicant failed to apply for asylum until he was arrested two months after his arrival in the State. As a result, Section 13(6)(c) of the Refugee Act 1996 (as amended) applies to this application that:
“The applicant without reasonable cause, failed to make an application as soon as reasonably practicable after arrival in the State.”’
The applicant noted that the s.13(6) finding is not mandatory. It is at the discretion of the RAC authorised officer to apply the section. The applicant maintained that sufficient reasons were provided by the applicant for his delay in seeking asylum.
The applicant further submitted that the questions put to him at his s.11 interview were not precise enough and that the findings made against the applicant as a result were based on mistake. The tribunal decision was based on the s.13 report of RAC, which the applicant claimed was an erroneous report. Statute requires that the Refugee Appeals Tribunal have regard to the s.13 report as per s.16(16)(b) of the Refugee Act 1996 (as amended). Therefore, the applicant argued, the impugned decision has been infected by these errors.
The applicant contended that the interpretation by the tribunal member of Professor Hathaway in the impugned decision as quoted above is incorrect. The applicant referred the Court to p.52 -54 of Hathaway's “The Law of Refugee Status” (1st ed.) which states:
‘The basic principle that illegal entrants are eligible to have their claims to Convention refugee status determined in accordance with law is nonetheless clear from the important dictum of Mr. Justice MacGuigan of the Federal Court of Appeal in the case of Surujpal v. Minister of...
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