J (L O) v Refugee Appeals Tribunal & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 16 December 2011
• Neutral Citation: [2011] IEHC 493
• Court: High Court
• Date: 16 December 2011

[2011] IEHC 493

THE HIGH COURT

[No. 951 J.R./2008]

J (L O) v Refugee Appeals Tribunal & Min for Justice

BETWEEN/

L.O.J.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S16(8)

ESEMITODJE v REFUGEE APPEALS TRIBUNAL UNREP CLARK 13.11.2009

A Q S & KIS v MIN FOR JUSTICE UNREP HOGAN 23.11.2010 2010/3/516 2010 IEHC 421

R (I) v REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

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

OLATUNJI v REFUGEE APPEALS TRIBUNAL UNREP FINLAY-GEOGHEGAN 7.4.2006 2006/46/ 990 2006 IEHC 113

MONAGHAN UDC v ALF-A-BET PROMOTIONS LTD 1980 ILRM 64

IMMIGRATION

Asylum

Country of origin information - Refugee Appeals Tribunal - Persecution - Non state actor - Gang - Police protection - Whether tribunal member entitled to select country of origin information - Whether respondent entitled to ignore significant country of origin information tendered by applicant - Whether respondent dealt adequately with evaluation of country of origin information - Fair procedures - Statutory requirement to notify applicant of nature and source of information arising in the course of appeal - Country of origin information reports - Failure to disclose - Whether respondent breached statutory requirement - Whether prejudice to applicant - Whether breach of mandatory safeguard fatal to decision - QAS v Refugee Applications Commissioner [2010] IEHC 421 (Unrep, Hogan J, 23/11/2010) considered - IR v Minister for Justice [2009] IEHC 353 (Unrep, Cooke J, 24/7/2009), ASO v Refugee Appeal Tribunal [2009] IEHC 607 (Unrep, Cooke J, 9/12/2009) and Olatunji v Refugee Appeals Tribunal [2006] IEHC 113 (Unrep, Finlay Geoghegan J, 7/4/2006) followed - Refugee Act 1996 (No 17), s 16(8) - Decision quashed (2008/951JR - Hogan J - 16/12/2011) [2011] IEHC 493

J(LO) v Refugee Appeal Tribunal

1 1. The phenomenon of student cults in Nigeria is a remarkable one. They originally emerged from student societies formed in Nigerian universities in the 1950s. While the societies originally had a benevolent purpose and mirrored to some extent the popular student societies which form such a key feature of undergraduate student life in Western countries, the societies sadly often metamorphosed into a more malevolent form. They now seem to exist as gangs and secret societies and sometimes even as militias. Members frequently engage in para-military style activities and the country of origin reports frequently document random and extreme violence on the part of cult members.

2 2. The applicant claims to have fled persecution from members of the Deebam cult. He contends that his father was a member of that cult and that when he died in March 2007, the other members of the cult wanted to initiate him, as the first born, into that cult. The applicant refused, saying that this would be contrary to his Christian beliefs.

3 3. At that point the applicant says that his life was threatened. Armed men attacked his house in Lagos, seriously assaulted his mother and raped his sister. The applicant himself was also beaten up by cult members and hospitalised.

4 4. Although the applicant reported this to the police, he was unavailing in his efforts. While the police tried to help, he says that any proper investigation was thwarted by reason of the considerable power of the cults. Following further threats the applicant feared for his safety. On the advice of a friend he moved to Lagos from an area close to Port Harcourt and he later moved to Abuja.

5 5. The applicant maintained that some weeks after arriving in Abuja in August, 2007 he was kidnapped by a group of men, driven for several hours and taken to a dungeon. He says that he subsequently persuaded one of his captors to release him on the basis that he would pay him a sum of money later. Following his escape, the applicant then says he ran for over an hour and that he found himself - in circumstances that perhaps have not yet been fully explained - at a major junction in Port Harcourt. He was then picked up by a friend and arrangements were made with a trafficker to get him to leave Nigeria. He says that there was no point in reporting the matter to the police, because, one must infer, the applicant considered that they would not interfere in a matter involving a cult.

6 6. This is the background of the present application for judicial review, leave having been granted by Peart J. on 29 ^th November, 2010. Two fundamental points are made by the applicant. First, it is said that the applicant had no meaningful access to police protection in Nigeria. Second, the applicant maintains that the Tribunal member violated the principles of fair procedures by having regard to country of origin information which had not been disclosed to the applicant, contrary to s. 16(8) of the Refugee Act 1996. I propose to consider these arguments in turn.

Police protection in Nigeria

7 7. So far as any claim for international protection is concerned, it is incumbent on the applicant to demonstrate clearly that State protection is in practice unavailable. This point has been made in numerous cases, but it suffices to refer to the judgment of Clark J. in Esemitodje v. Refugee Appeals Tribunal, High Court, 13 ^th November, 2009, where she said:-

"It was for the applicant to prove on an objective basis that it was reasonable for her not to seek the protection of the Nigerian state before seeking the protection of the Irish State. In order to do so, the burden lay with her to provide clear and convincing evidence of the inability of the Nigerian State to protect her."

8 8. In my judgment...