I (US) v Min for Justice & Refugee Appeals Tribunal (Nolan)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Cooke
• Judgment Date: 07 April 2011
• Neutral Citation: [2011] IEHC 144
• Docket Number: [No. 1189 J.R./2007]
• Date: 07 April 2011

[2011] IEHC 144

THE HIGH COURT

[No. 1189 J.R./2007]

I (US) v Min for Justice & Refugee Appeals Tribunal (Nolan)

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

U. S. I.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND SUSAN NOLAN SITTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S17(1)

O (AS) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 9.12.2009 2009/43/10639 2009 IEHC 607

RSC O. 84 r26(4)

SHEEHAN v DISTRICT JUDGE REILLY & GOVERNOR OF LIMERICK PRISON 1993 2 IR 81 1993 ILRM 427 1992/13/4201

AHERN v KERRY CO COUNCIL & COLLINS 1988 ILRM 392

USK & DISTRICT RESIDENTS ASSOCIATION LTD v BORD PLEANALA & ORS 2007 2 ILRM 378 2007/59/12596 2007 IEHC 86

IMMIGRATION LAW

Asylum

Credibility - No express finding - State protection - Need for protection inferred - Whether objective basis for fear of return - Whether state protection element of decision inconsistent with inferred finding lack of credibility - Whether conclusions on credibility clear - Whether reasons for finding police protection available were adequate - Whether tribunal member differed from analysis of refugee applications commissioner without explanation - Whether refusal by respondent to make declaration s 17(1) created uncertainty - Whether ambiguity in tribunal decision as ground for conclusion state protection available - Whether matter to be remitted to new tribunal - Whether orders or directions added to order to remit - Whether within court's discretion to remit decision for further consideration by same tribunal - Error of omission - O(AS) v Refugee Appeals Tribunal [2009] IEHC 607 (Unrep, Cooke J, 9/12/2009), Sheehan v District Judge Reilly [1993] 2 IR 81, Ahern v Kerry County Council [1988] ILRM 392 and Usk & District Residents Association Ltd v An Bord Pleanála [2007] 2 ILRM 378 followed - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 26(4) - Certiorari granted (2007/1189JR - Cooke J - 7/4/2011) [2011] IEHC 144

I(US) v Minister for Justice, Equality and Law Reform

Facts The applicant had made an application for asylum in the State which had been refused. It had been decided that the applicant's claim was seriously lacking in credibility and that she had not made out a well-founded fear of persecution. The applicant had instituted judicial review proceedings and had been granted leave in respect of whether the Tribunal member had, with sufficient clarity, set out her ultimate conclusions regarding the applicant's credibility and had failed to adequately explain her reasons for finding that police protection was available to this applicant. The Tribunal member had appeared not to accept the applicant's explanation of the treatment she had received in Nigeria and had gone on to analyse the availability of State protection to complainants in Nigeria.

Held by Cooke J in granting the relief sought and remitting the matter. It would appear that the Tribunal member had indicated that the applicant's story lacked credibility yet there was no explicit statement to that effect. There appeared to be an analysis that state protection would have been available to the applicant had she made reports to the police in Nigeria, thus raising the possible inference that she had established a need for such protection. This was at variance with a decision that the claim lacked factual credibility. The matter would be remitted to the Tribunal with a recommendation that it be assigned to the same Tribunal member in order to make a supplemental decision stating clearly the reasons for finding a lack of credibility. In the event that the same Tribunal member was unavailable, it was open to the Chairperson of the Tribunal to withdraw the original decision and assign the matter for a full re-hearing before a different Tribunal member.

Reporter: R.F.

Mr. Justice Cooke

1 1. By order of the 19^th May, 2010, the Court (Clark J.) granted leave to the applicant to seek judicial review of a decision of the second named respondent dated the 29^th August, 2007, which affirmed the negative recommendation on her asylum application made by the Office of the Refugee Applications Commissioner under s. 13 of the Refugee Act, 1996 of the 6^th February, 2007.

2 2. The ground upon which leave to apply for judicial review was granted is as follows:-

"The Tribunal member failed to deal with sufficient clarity what (sic) her ultimate conclusions on credibility were and failed to adequately explain her reasons for finding that police protection was available to this applicant."

3 3. The applicant is national of Nigeria, born in October 1987, who arrived in the State in January 2007 and gave birth to a baby daughter in Dublin on the 9^th April, 2007. She applied for asylum shortly after arrival and was interviewed under s. 11 of the Act of 1996 on the 5^th February, 2007.

4 4. She claimed that her mother had died in September 2005 and that shortly afterwards her father had brought a woman into the house to help look after the applicant's younger sister. Soon afterwards she was told that this woman was to be her new mother. The woman in question ran a restaurant and told the applicant that she would have to work in the restaurant selling food and drinks to customers. The applicant claimed that the woman began forcing her to become familiar with customers and to force her into prostitution with them. Her stepmother beat her when she refused the advances of customers. She ran away to a friend's house and later to her friend's family home in Abia state some two or three hours away. Her stepmother came for her and took her back and is alleged to have threatened to kill her unless she engaged in prostitution.

5 5. In October 2006, a man called Joe, whom she had met in the friend's village, came to visit her in the restaurant. When he learned of how she was being treated he said he would help and he arranged for her to escape and paid her fare to get to Ireland.

6 6. The s. 13 report was based on a detailed analysis of the applicant's story and concluded in very explicit terms that the story was not credible. The following particular points were made:-

7 · - The applicant made no attempt to avail of the protection of the Nigerian authorities nor did she submit any credible explanation that would suggest that they would not have dealt with the applicant's accusations regarding such alleged serious matters as physical assault, enforced prostitution and threatened killing in an appropriate manner;

8 · - She claimed that her stepmother's "men are everywhere" but did not credibly convince that her stepmother had considerable undue influence with Nigerian authorities nor did the applicant submit any documentation in relation to this;

9 · - The applicant admitted that she did not even properly inform her father about her stepmother's alleged constant attempts to force her into prostitution nor the constant threats to kill her;

10 · - The applicant did not submit any medical documentation in relation to the bruises she is alleged to have received during the beatings by her stepmother;

11 · - The applicant failed to credibly convince that her stepmother would kill her if she were to return to her country of origin considering that the applicant's stepmother was unable ultimately to force the applicant into prostitution despite her constant efforts;

12 · - Given that the applicant's account of having suffered persecution in Nigeria was deemed to lack credibility, the internal relocation option was not regarded as being a particularly relevant one in this instance;

13 · - In conclusion the applicant failed to credibly prove that her stepmother would possess both the ability and the inclination to track the applicant down to any location across Nigeria and subsequently kill her due the applicant's refusal to become a prostitute.

14 7. The reason for the particular formulation of the leave ground lies in the approach to the issue of credibility adopted by the Tribunal member in Part 6 of the decision: "Analysis of the Applicant's Claim". She starts by defining the purpose of the analysis by saying that if the applicant has reasons to fear returning to Nigeria, what the Tribunal must decide is whether the fears are well founded and based upon proper Convention grounds. She says: "in accessing (recte assessing) any application the Tribunal must have regard to the credibility and the coherence of the account given by the applicant". This, in effect, anticipates an analysis of credibility in what follows.

15 8. The analysis then makes a number of particular observations as follows:

16 (a) The applicant never made any report to the police of the threats, beatings or attempts to force her into prostitution. The Tribunal member says: "While the Tribunal accepts that there may be police in Nigeria who took money and may accept bribes, it does not accept this to be a reasonable explanation for the applicant failing to seek protection of the police at any stage …".

17 (b) "The applicant's assertions that she did not know if there were any women's organisations who would assist her or how she would go about seeking their help is difficult to believe …".

18 (c) "It does not seem capable of belief that the applicant, an educated lady would not have inquired about any internal means of redress available to her before travelling to a strange country to seek asylum".

19 (d) "The Tribunal believes that the applicant's failure to seek state protection about her own problems at any stage in Nigeria defeats her claim".

20 9. While these observations might be read as indicating a belief on the part of the Tribunal member that the applicant lacks credibility, there is no explicit statement that a finding to that effect is being...