O (IF) v Refugee Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 22 September 2015 |
| Neutral Citation | [2015] IEHC 586 |
| Court | High Court |
| Date | 22 September 2015 |
[2015] IEHC 586
THE HIGH COURT
AND
Asylum, Immigration & Nationality – The Refugee Act 1996 – Appeal against the decision of the Refugee Appeals Tribunal – Order of certiorari – Fear of persecution – Whether evidence of applicant credible – Country of origin information – Telescoped hearing – Reasoned decision – State protection – Fair procedures
Facts: The applicant sought an order of certiorari against the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner not to declare the applicant a refugee. The applicant contended that he feared persecution in the country of origin as he professed a different religion and that there had been an attack on a church established by him.
Ms. Justice Faherty granted leave to seek judicial review of the order of the first named respondent and also an order of certiorari as it was a telescoped hearing and remitted the matter for fresh consideration before a different member of the first named respondent. The Court held that in judicial review proceedings, the Court was not at liberty to substitute its own views. The Court observed that the first named respondent failed to give adequate weight to the country of origin information in the light of contradictory reports available before it and never gave cogent reasons and detailed explanations while observing that the applicant's credibility was wanting. The Court found that the applicant had the right to know the basis upon which his credibility was rejected as failure to do so would be a denial of fair procedures. The Court held that the first named respondent did not satisfy the test laid down in Idiakheua v. Minister for Justice Equality and Law Reform [2005] IEHC 150 that there should be an assessment on whether state protection was likely available to the applicant upon his return to the country of origin.
JUDGMENT of Ms. Justice Faherty delivered on the 22nd day of September 2015
1. This is a telescoped hearing wherein the applicant seeks an order of certiorari of the decision of the first named respondent which affirmed the recommendation of the Refugee Appeals Commissioner not to declare him a refugee.
A short extension of time is required in this case, the Tribunal decision having been received by the applicant on 3 June 2010 and these proceedings having commenced on 21 June 2010. Having regard to the contents of the applicant's affidavit, I am satisfied to extend the time.
3. The applicant is a Nigerian national who claims his date of birth as the 20 th of February 1962 and place of birth as Benin City Ido State. He was educated to college level and from December 1983 to September 1993, was employed by the Ministry of Education and resided in Benin City. The applicant claimed to be a married man with four children and that he and his family relocated to Greece in 1998 and remained there until they returned to Nigeria in 2005 after the applicant was subjected to a serious illness in Greece. They went to live in Maidurugi upon return. According to the applicant, out of gratitude to God for saving his life from his illness he became a Pentecostal pastor after a six months training course in theology in 2006. (PG.18). In 2006, the applicant built a church beside his home at 17 Lagos Street, Maidurugi called the Christ Redemption Ministry.
The claimed circumstances in which the applicant came to seek asylum in the state were as follows: on the 26 th of July 2009 Boko Haram, a terrorist group, attacked Maidurugi. The applicant and his parishioners were finishing a church service when the attacks began. This group came with "cutlasses, bombs, arrows and entered the compound." The applicant managed to escape through a fence, leaving his wife and children behind. He ran three kilometres and hid behind a bush. (PG.89) Later that night he met a truck driver who brought him to Chad travelling across Lake Chad in a car ferry. He went to a camp in Bokassa which was run by the Red Cross. There, a catholic priest, Fr M, an Irishman, spoke to the applicant who set out his problems. This catholic priest "felt sorry" for the applicant. He said he would go off and come back and did return. He took the applicant out of the camp and the applicant followed him. The applicant took an Air France plane from the capital of Chad to Dublin on 12 December 2009 arriving in Dublin on 13 December 2009. Fr M travelled with the applicant and he was holding everything for him and paid the applicant's fare. He gave him the passport to show to the various immigration authorities. On arrival in Dublin, Fr M gave the applicant €20 to get a taxi into the city centre. He never saw Fr M again nor did Fr M try to contact him.
The applicant has a fear of returning to Nigeria as he fears the Boko Haram who wish to kill him because he was preaching Christianity, "they are everywhere"
4. The applicant commenced his asylum application on the 14 th of December 2009. His ASY1 form was completed on the 15 th of December 2009. He completed a questionnaire on the 22 nd of December 2009 and claimed to have a fear of persecution on grounds of religion. He underwent a s.11 interview on the 18 th of January 2010. The Commissioner's report issued on the 9 th of March 2010 and recommended that the applicant not be declared a refugee. The applicant's claim was rejected largely on credibility grounds. The Commissioner held that given the applicant's failure to name the museum and theatre complex and location of the train station in Maiduguri and the fact that Baja Street (a place named by the applicant) was not seen on a map printed out by the Commissioner, "it (was) not accepted that the applicant lived in Maiduguri." Furthermore, the Commissioner was critical of the applicant's responses to religious questions, holding that "it was unaccepted that the applicant was a pastor due to his lack of knowledge of basic biblical scripture and inability to specify the exact denomination of his supposed church". The Commissioner acknowledged country reports confirming that Boko Haram attacks as described by the applicant had occurred but considered it "unusual that the applicant did not know such basic information [as the name of the leader of] the group that attacked and burned his church." "[It was not] accepted it that he was in the area or a pastor as claimed, therefore he would not be specifically targeted by the group." The Commissioner also noted that "major action has been taken against Boko Haram, many of its members are dead, including its leader." The report went on to find that "it did not appear coherent that a father and husband would leave his young family in a dangerous situation… he was unable to furnish a reason as to why he left Nigeriawithout his family" and that "the details of the applicant's escape were vague and lacked plausibility" The report found that "the applicant was unable to furnish any of the documents used during his alleged travel route". The Commissioner also held that the applicant was unable to give a valid reason for the apparent "inconsistency" in Father M having gone to such lengths to pay, to organise and accompany the applicant in illegal travel from Chad to Ireland, yet the priest did not give the applicant any contact number in Ireland and had no contact with the applicant since his arrival in this State. The Commissioner went on to find that "the lack of credibility in the applicant's testimony as a whole and specifically regarding his travel, coupled with his failure to provide any travel documentation, leads this examiner not to accept his alleged travel route."
5. It was "noted that the applicant has stated that he and his family lived in Greece from 1998 to 2005 …he asserts that he was given an amnesty in 1998. The applicant claims that he and his family entered there legally but were illegal at the time of the amnesty. He claims that he was unable to apply for citizenship in Greece … the applicant claims that he returned to Nigeria to "settle down" and that his visa for Greece has expired. The applicant was unable to provide any documentation to demonstrate that he and his family returned the Nigeria from Greece. This, along with his consistent lack of credibility, raises doubts as to whether he ever returned from Greece with a possibility that his family will not be in Nigeria, but a European country."
6. Under the heading of "State Protection", the Commissioner stated that "the issue of state protection does not arise because it would only need to be considered if there was a reasonable degree of likelihood that the applicant was in danger of being persecuted if he returns home."
7. A Notice of Appeal was lodged with the Refugee Appeals Tribunal on 29 March 2010. The appeal submissions alleged, inter alia, that the Commissioner erred in law in and fact in failing to consider seriously the position of the applicant in Nigeria after the Boku Haram attack; that the Commissioner was unfair to the applicant in concluding he had not lived in Maiduguri; that he was unfair and unreasonable in concluding that the applicant was not a Christian pastor; that he failed to be rational in undermining the applicant's credibility because of his failure to name the leader of Boku Haram in circumstances where the applicant did not have prior problems from the group; that the Commissioner erred in fact in finding the applicant's account of his escape was vague and lacked plausibility and that he was unable to furnish a reason as to why he left Nigeria without his family; that the...
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