I (U) v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 29 October 2008
• Neutral Citation: [2008] IEHC 345
• Date: 29 October 2008
• Court: High Court
• Docket Number: [No. 645JR/2008]

[2008] IEHC 345

THE HIGH COURT

[No. 645JR/2008]

I (U) v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT, 1966 (AS AMENDED),

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

IN THE MATTER OF THE ILLEGAL IMMIGRANTS, (TRAFFICKING)

ACT, 2000 AS AMENDED,

AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN

RIGHTS ACT, 2003, SECTION 3(1)

BETWEEN

U. I.

APPLICANT

AND

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

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

REFUGEE ACT 1996

IMMIGRATION ACT 1999

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

S (AW) v REFUGEE APPEALS TRIBUNAL (ZAIDAN) & ORS UNREP DUNNE 12.6.2007 2007/54/11567

K (G) & ORS v MIN FOR JUSTICE & APPEALS AUTHORITY & ORS 2002 2 IR 418

KHAZADI v MIN FOR JUSTICE UNREP GILLIGAN 19.4.2007 (EX TEMPORE)

IMOH & OKORO v REFUGEE APPEALS TRIBUNAL (BRENNAN) & MIN FOR JUSTICE UNREP CLARKE 24.6.2005 2005/31/6393

SIMO v REFUGEE APPEALS TRIBUNAL UNREP EDWARDS 5.7.2007 (EX TEMPORE)

E (M) v REFUGEE APPEALS TRIBUNAL & ORS UNREP BIRMINGHAM 27.6.2008 2008 IEHC 192

IMMIGRATION

Asylum

Fear of persecution - Country of origin information - Alleged failure to consider all evidence - Whether subjective fear of persecution objectively justifiable - Whether subjective fear well founded when considered objectively in light of country of origin information - Conflicting country of origin information - Information as a whole - Whether tribunal member's decision rational and lawful - S v Refugee Appeals Tribunal, [2007] IEHC 276, (Unrep, Dunne J, 12/6/2007) followed - GK v Minister for Justice, Equality and Law Reform [2002] 2 IR 418, O'Keeffe v Bord Pleanala [1993] 1 IR 39, S v Refugee Appeals Tribunal [2007] IEHC 305 (Unrep, Edwards J, 4/7/2007) considered; Khazadi v Minister for Justice (Unrep, Gilligan J, 19/4/2007) and Imoh v Refugee Appeals Tribunal [2005] IEHC 220 (Unrep, Clarke J, 24/6/2005) distinguished - European Convention of Human Rights Act 2003 (No 20), s 5(1) - European Convention on Human Rights, article 13 - Leave to apply for judicial review refused (2008/645JR - Edwards J- 29/10/2008) [2008] IEHC 345

I(U) v Refugee Appeals Tribunal

Judgment of

Mr. Justice John Edwards

1 delivered on the 29th day of October, 2008 .

2 This is an application for leave to apply by way of judicial review for an order ofcertiorari quashing the decision of the first named respondent made on the 10^th day of May, 2008 to affirm the recommendation of the Refugee Applications Commissioner, and various ancillary reliefs. Among those ancillary reliefs, the applicant also seeks a declaration pursuant to S. 5(1) of the European Convention of Human Acts, 2003, that the rule of the law governing the scope of judicial review relating to an asylum decision as set out in O'Keeffe v. An Bord Pleanála is incompatible with the European Convention on Human Rights and Fundamental Freedoms in that the test so afforded fails to constitute an effective remedy for the purposes of Article 13 of the said Convention. As I am satisfied that in the circumstances of this particular case it is appropriate in any event to apply the higher standard of anxious scrutiny in considering whether or not to grant the applicant's claim for leave to apply for judicial review, the claim for this particular declaration is redundant.

3 The applicant's claim is grounded upon an affidavit sworn by him on 5^th June, 2008 and also upon a subsequent affidavit sworn by his solicitor, Sean Mulvihill on the 20^th October, 2008. The applicant deposes that he was born on 10^th October, 1963 and is a national of Nigeria. He says that he fled Nigeria in fear of persecution on the grounds of his religious beliefs and he remains fearful for his life and safety if he is returned to Nigeria. He is a Christian from the Igbo tribe. His father held the title of King of the Isingwu Mbaise. His father died in February 2002 and he, as his eldest son, was entitled to and was expected to succeed him. In order to be installed as King he had to be prepared to participate in a traditional ritual requiring the killing of two persons as described by the so called "Oracle" (Chief Priest of the Tribe). The intended sacrificial victims were to be an old woman and a boy or girl aged between two and five. The applicant was expected to kill them by beheading them. The applicant says that he refused to accept Kingship as he would not participate in such a ritual. After the applicant refused the offer of succession, he was told by the Chief Priest that he if he persisted with his refusal he would pay with his life. He was given a period of time - twelve market days (four market days equals forty-eight days) - to produce the heads. The applicant says that he stood his ground and did not perform the required ritual within the specified time. He was then given a further five weeks to do so but again did not comply. He was told by the Chief Priest that either he or his wife would die of the consequence of his stubbornness as a new King could be elected until the designated successor had either been installed or had died. The applicant claims that at midnight on the 30^th June, 2002, two of his children became suddenly ill. The two children began foaming at the mouth and their bodies began to swell. Within ten minutes both were dead. The applicant believes that the Chief Priest used "Voodoo" to kill his children and this was done in order to pressurise him into carrying out the required rituals and assuming Kingship. The applicant said that he buried his children in the bedroom of his home to avoid their bodies being removed to a place known as "the evil forest" and dumped there. There was a risk that that could happen because the children were twins and twin births are considered to be shameful among the Igbo people. The children were likely in the circumstances to be regarded as having suffered "bad deaths". Within the Igbo culture if a person dies a "bad death" the body is secretly thrown away with no burial at all. For these reasons the applicant did not report his children's death and accordingly there is no official record of them. Moreover, there was obviously no investigation into their deaths and no autopsies were carried out. Some days later the applicant and his wife went to his sister-in-laws home in Uyo Akwaibon State. His sister-in-law and her husband were among the few family members who were prepared to support him as others in the family wanted him to perform the required ritual. The applicant contends that there was not enough room in his sister-in-laws house for the entire family and accordingly he stayed with somebody else in the same village. He contends that on the 19^thAugust, 2002, the elders of this tribe discovered that his wife was with her sister and they dragged her from her sister-in-laws house and beat her. They cut her leg with a knife. She was four months pregnant at the time and was taken to hospital where she miscarried.

4 The applicant informed the Tribunal that he told the police on two occasions about the duress that he was under but that they were not interested in offering protection as the matter was regarded as a traditional matter to be sorted out between the applicant and his tribal elders. The applicant deposes that his home in Isingwu Mbaise was burnt down. With the help of a priest who arranged for an agent to assist them, the applicant and his wife fled Nigeria. His wife's sister agreed to take care of their other three children. The applicant arrived in Ireland on 7^th October, 2002 and immediately applied for refugee status. His application was duly considered and he was notified by a letter dated the 18^th September, 2003 that the Refugee Applications Commissioner was recommending that he should not be declared to be a refugee. He was provided with a copy of the s. 13 report. He appealed against the decision of the Refugee Applications Commissioner to the Refugee Appeals Tribunal. The Tribunal has on four different occasions affirmed the decision of the Refugee Applications Commissioner. In respect of each of the first three occasions the decision of the Refugee Appeals Tribunal was successfully judicially reviewed. The most recent decision of the Refugee Appeals Tribunal, following a hearing on the 8^th May, 2008, was given on the 10^th May, 2008. The applicant is now seeking to challenge that decision by way of judicial review.

The decision document is divided into seven sections entitled:-

(1) Grounds of appeal,

(2) Background information,

(3) The applicant's evidence,

(4) Submissions,

(5) Law,

(6) Analysis of the applicant's claim,

5 (7) Conclusion.

6 The critical portion is that contained in Parts (6) and (7) and I think that it is appropriate to recite those parts in full:-

7 The applicant maintains that his life was in danger because he refused to submit to the ritual requirements involved in the installation of the King in his village. Is this assertion objectively supported?

8 The Nigeria Country Director of the Heinrich Boll Foundation, an NGO conducting projects in the field of civic education worldwide wrote:-

"…overall, the role and functioning of traditional and chieftaincy institutions throughout Nigeria differs widely, depending to good extend on the culture and traditions of the respective locality, region and ethnic group."

9 A Norwegian fact finding report on Nigeria (August, 2006) states that it is "extremely rare" for someone to refuse a chieftaincy title and that traditional thrones are "subject to great competition in the local...