Imoh and Others v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 24 June 2005
• Neutral Citation: [2005] IEHC 220
• Court: High Court
• Docket Number: [No. 824 JR/2004]
• Date: 24 June 2005

[2005] IEHC 220

THE HIGH COURT

[No. 824 JR/2004]

IMOH & OKORO v REFUGEE APPEALS TRIBUNAL (BRENNAN) & MIN FOR JUSTICE

IN THE MATTER OF THE REFUGEE ACT 1996 AND THE ILLEGAL (TRAFFICKING) ACT 2000 AND THE IMMIGRATION ACT 1999

BETWEEN

VIVIANNE NGOZIKA IMOH, NKENDRIAM KEVIN OKORO (A MINOR) AND ANURIKA KAREN OKORO (A MINOR) BOTH SUING THROUGH THEIR NEXT FRIEND AND MOTHER VIVIANNE NGOZIKA IMOH

APPLICANTS

AND

REFUGEE APPEALS TRIBUNAL (TRIBUNAL MEMBER OLIVE BRENNAN) AND MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENTS

IMMIGRATION ACT 1999

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999,

IN RE 2000 2 IR 360

MOYOSOLA v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP HIGH COURT CLARKE 23.6.2005

IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HIGH COURT CLARKE 10.5.2005 2005 IEHC 150 2005/31/6357

REFUGEE ACT 1996 S13

UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951 ART 1 A(2)KRAMARENKO v REFUGEE APPEALS TRIBUNAL & ORS 2004 2 ILRM 550

CAMARA v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY UNREP HIGH COURT KELLY 26.7.2000 2000/4/1247

IMAFU v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (O'BRIEN) UNREP HIGH COURT CLARKE 27.5.2005

ZHUCHKOVA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 26.11.2004 2004/51/11705

R v IMMIGRATION APPEALS TRIBUNAL EX PARTE DEMISA (UK) UNREP LAWS 17.7.1996

HASSEN v UK IMMIGRATION APPEALS TRIBUNAL UNREP 3.10.1987

TRAORE v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2004 2 IR 607

GASHI v MIN FOR JUSTICE & ORS UNREP HIGH COURT CLARKE 3.12.2004

IMMIGRATION ACT 2003 S7

REFUGEE ACT 1996 S11B(c)

REFUGEE ACT 1996 S16(8)

IMMIGRATION

Asylum

Refugee status - Minors - Whether independent consideration given to application of minors - Whether relocation formed part of RAT decision - Country of origin information - State protection - Availability of state protection - Whether claimant demonstrated no adequate state protection - Credibility - Whether demonstrable error in assessment of credibility - Whether credibility finding carried out in accordance with law - Leave granted

Facts: The applicant applied for leave to apply for judicial review of a decision of the RAT refusing the applicant refugee status. The applicant relied on various grounds including that the decision of the RAT in relation to the credibility of the applicant and the decision of the RAT concerning the availability of state protection were tainted by an error of fact.

Held by Clarke J. in granting leave to apply for judicial review that the applicant had made out an arguable case that the decision of the RAT was tainted by an error of fact. The error concerned the apparent view of the decision-maker that police protection would have been available to the applicant in Lagos in circumstances where there was no evidence to that effect and indeed the obvious inference from the evidence was to the contrary.

Reporter: R.W.

Mr. Justice Clarke

1 In these proceedings the applicants seek leave to challenge a decision of the first named respondent Refugee Appeals Tribunal ("RAT") which affirmed a pervious recommendation of the Refugee Applications Commissioner ("RAC") to refuse refugee status. Under s. 5 of the Illegal Immigrants (Trafficking) Act,2000 it was necessary for this application to be made on notice to the respondents and for the applicants to satisfy the court that there are substantial grounds for such leave. The test is such that grounds are "reasonable", "arguable" and "weighty". In the matter of Article 26 of the Constitution and s. 5 and s. 10 of the Illegal Immigrants (Trafficking) Act 2000 2 I.R. 360 and McNamara v. An Bord Pleanála (No. 1) [1995] 2 I.L.R.M. 125.

2 In the statement grounding the intended application dated 20th September, 2004 a wide range of reliefs based upon an even wider series of grounds is urged. However in the events that have happened some of the matters that were raised in that statement of grounds have become irrelevant. Counsel for both sides conveniently grouped the remaining grounds into connected areas for the purposes of the argument before me.

3 Firstly it is fair to say that the most wide ranging and, arguably, most contentious of the grounds sought to be relied upon concerns a contention on the part of the applicants that the process by which the RAT came to reach findings as to their credibility (which in turn led to an adverse finding on the refugee issue) was not carried out in a manner consistent with law. I will return to this issue and other connected issues concerned with the process by which, it is contended, the RAT should assess the applicants' claim, when I have dealt with certain other issues.

Those remaining issues are as follows:-

4 (a) it is contended that the RAT failed to give proper consideration to the application of the second and third named applicants who are minors;

5 (b) it is argued that the manner in which the RAT made findings in relation to the availability of state protection was not in accordance with law;

6 (c) it is argued that the RAT failed to deal with one aspect of the grounds advanced by the applicants that is to say a fear of being subjected to forced marriage; and

7 (d) it is said that the RAT improperly considered the possibility that the applicants might have been able to relocate within Nigeria.

8 I will commence by dealing with each of those issues in turn.

9 InMoyosola v. Refugee Appeals Commissionersand Others (Unreported, High Court, judgment of Clarke J., 23rd June, 2005) I indicated that while there may be cases where it is necessary for decision makers in the refugee process to give significant independent consideration to the position of minor applicants (that is to say consideration independent of their parents or guardians) each case depended on its own facts. In this regard the facts of Moyosola are similar to the facts in this case. The basis upon which the first named applicant claims to fear persecution is that she fears, she says, that her daughters will be subjected to female genital mutilation ("FGM"). For the reasons which I addressed in Moyosola it is clear that if she has a well founded fear in that regard (and in the absence of any of the other normal considerations which would, nonetheless, exclude her from refugee status) then such a well founded fear would necessarily give rise to both her and her children being properly regarded as refugees. Equally, as I pointed out in Moyosola, if a decision maker within the refugee process comes to a justified decision (that is to say a decision which is not subject to being quashed on review) to the effect that such a well founded fear did not exist then that finding would equally apply in relation to the position of any minor whose claims were based upon precisely the same grounds. While there may, therefore, be cases where the considerations that would be applicable to an application by a minor would be different to those applicable to an adult parent or guardian (even though the surrounding circumstances may be similar) I am not satisfied that this is such a case.

10 If the decision of the RAT that the first named applicant does not have a well founded fear of persecution is sustained, then, on the facts of this case, that decision applies to the minor applicants. I am not, therefore, satisfied that there is any independent ground for challenging the decision of the RAT in respect of the minor applicants.

11 InIdiakheua v. Minister for Justice Equality and Law Reform and Another (Unreported, High Court, Clarke J., 5th May, 2005) I considered the appropriate manner in which country information should be considered in the context of state protection. As Idiakheua was a leave case the judgment is concerned with matters which are arguable to a sufficient extent to establish substantial grounds. In that context I noted the following:-

"It would appear that the true test is as to whether the country concerned provides reasonable protection in practical termsNoone v. Secretary of State for the HomeDepartment (Unreported, CA 6th December, 2000). While the existence of a law outlawing the activity which amounts to persecution is a factor the true question is as to whether that law coupled with enforcement affords “reasonable protection” in practical terms".

12 Obviously different considerations apply to cases where the fear of persecution stems either directly from the State or from persons whose activity is condoned or tolerated by the State concerned. On the basis of the country of origin information before the RAT in this case it could not, in my view, be suggested that the RAT was required to hold that Nigeria condoned or tolerated FGM. However that is not the end of the matter. It is clear that fear of persecution for a convention reason by non state agents will nonetheless qualify a claimant for refugee status where the state concerned either refuses to or is unable to offer adequate protection. It was in that context that the comments quoted above fromIdiakheua were made.

13 In this case the decision of the RAT comes to the following view:-

"The applicant did not go to the police or to any human rights organisation. It is not open to the applicant to state that state protection was not available to her if she did not avail herself of the resources of the state."

14 The above passage refers to the first named applicant at a time when she was resident in Port Harcourt. In respect of a later period when she was resident in Lagos the Tribunal found that "notwithstanding her fear she did not avail herself of police protection while living in Lagos".

15 It is, therefore, clear that at least in part the decision of the RAT to the effect that the applicants were excluded from qualifying for refugee status...