J (N) v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M. H. CLARK,
• Judgment Date: 03 April 2009
• Neutral Citation: [2009] IEHC 168
• Court: High Court
• Date: 03 April 2009

[2009] IEHC 168

THE HIGH COURT

[No. 1044 J.R./2007]

J (N) v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

BETWEEN

N. J.

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 S13

REFUGEE ACT 1996 S16(6)

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

MIBANGA v SECRETARY OF STATE FOR THE HOME DEPT 2005 AER (D) 307 (MAR) 2005 EWCA CIV 367

S (DVT) v MIN FOR JUSTICE & ORS 2008 3 IR 476 2007/54/11621 2007 IEHC 305

REFUGEE ACT 1996 S11

I (U) v REFUGEE APPEALS TRIBUNAL & ORS UNREP EDWARDS 29.10.2008 2008 IEHC 345

A (G) v REFUGEE APPEALS TRIBUNAL (O'GORMAN) & ORS UNREP CLARK 31.3.2009 2009 IEHC 157

CAMARA v MIN FOR JUSTICE UNREP KELLY 26.7.2000 2000/4/1247

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

IMMIGRATION

Asylum

Judicial review - Leave - Substantial grounds - Post traumatic stress disorder - Capacity to give evidence - Allegation that respondent failed to assess capacity of applicant to give evidence - Failure of applicant to raise question of capacity at hearing - Whether post traumatic stress disorder affects capacity to give evidence - Option of internal relocation - Whether option of internal relocation existed - Khazadi v Minister for Justice [2006] IEHC 175 (Unrep, MacMenamin J, 2/5/2006) and Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367 distinguished - D v TS (Simo) v Minister for Justice [2007] IEHC 451 (Unrep, Edwards J, 30/11/2007), UI v Refugee Appeals Tribunal [2008] IEHC 345(Unrep, Edwards J, 29/10/2008), A (G) v Refugee Appeals Tribunal [2009] IEHC 157 (Unrep, Clark J, 31/3/2009) and Camara v Refugee Appeals Tribunal (Unrep, Kelly J, 26/7/2000) considered -Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Refugee Act 1996 (No 17), ss 11 and 16 - Leave refused (2007/1044JR - Clark J - 3/4/2009) [2009] IEHC 168

J(N) v Refugee Appeals Tribunal

1 This is an application for leave to apply for judicial review of the decision of the Refugee Appeals Tribunal (RAT), dated the 3 ^rd July, 2007, to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicant should not be granted a declaration of refugee status. Mr. Mark de Blacam S.C. with Ms. Maureen Cronin B.L. appeared for the applicant and Ms. Emily Farrell B.L. appeared for the respondents. The hearing took place at the King's Inns, Court No. 1, on the 31 ^st March, 2009.

Factual Background

2 The applicant is a national of Nigeria born in 1979. She lived in Benin City until she was eleven years old when she moved with her family to Delta State. Her education seems to have been limited and thereafter she trained and was employed for about eight years as a hairdresser. She is a single mother of a boy born in 1997 who remains in Nigeria. She says that her father acted as a messenger for one of the leaders of the S.S.S. and worked with Asari Dokubo. She says that in November, 2004, several men from her father's organisation visited the family home demanding to see him. She and her mother had been told to say that he was travelling and would be back in four weeks. The men did not believe them and abducted the two women. They were detained separately and the applicant was questioned about her father's whereabouts. The applicant says she was raped every night during that period of detention. One of those men was ashamed of what was happening to the applicant and released her and gave her money to return home. She found the family home was a mess and no one was there. She sought help from a friend of her father and spent three months living in that man's house. He obtained a passport for her and arranged for her to stay with a friend of his for a further fortnight in Lagos before leaving Nigeria. After she left Ogun village, she had no contact with the men who had threatened her. She says she travelled to Ireland by air to Cork, stopping in one unknown country where she and the agent did not leave the plane. The agent took her through immigration as his wife, showing the passport on her behalf. She and the agent took a bus from Cork to Dublin, where she applied for asylum. She says she does not know where her child is or what happened to her family since she left Ogun village.

3 She applied for asylum and failed before the ORAC. She appealed the decision to the RAT.

4 Some general grounds of appeal were filed but none specifically related to the applicant's claim and none specifically addressed the findings made in the s. 13 report. No documentation was furnished and no country of origin information (COI) was appended. An oral hearing was held and a negative decision issued but that decision was subjected to judicial review proceedings which settled and the applicant's appeal was assigned to another Tribunal Member. It appears that the applicant changed solicitors at that point.

5 Her new legal adviser wrote to the Tribunal enclosing further documentation relevant to her appeal hearing. They included three medico-legal reports from an examining physician and an art psychologist attached to the SPIRASI organisation. They described the applicant in the following terms:- she is a "severely traumatised woman who exhibits all the signs of post traumatic stress disorder"; "the applicant says her father had been murdered and that she suffers from an impaired memory" and her reported poor memory which was "in line with post traumatic stress disorder".

6 These reports indicate that the applicant had disclosed that she had been raped while in detention in Nigeria and that she had been referred to SPIRASI for therapeutic intervention, medical assessment and psychotherapy. The art psychotherapist strongly recommended that the applicant be given the opportunity to reside in the country in order to continue her treatment. The applicant did not tell the ORAC either at interview or in her questionnaire that she had been raped and this was explained in the reports by the applicant being reluctant to either disclose or report these events as she felt deeply ashamed and tried to block out the memories.

7 A report from Dr Siddiqui, an Examining Physician, dated 1 ^st June, 2007, indicated that the applicant had been assessed because the art psychotherapist had expressed concerns about her mental health. It was then noted as follows:-

"On mental state examination the symptoms and signs were highly consistent with [PTSD] and with further complications like development of impulse control. She was also found to be depressed and had expressed feelings of hopelessness and sees no future for herself. I feel though she is not actively suicidal at present but should this continue on I would have serious concerns about her safety. I believe she has been evaluated by the relevant psychiatric services and is under their care. I would like to point out that she complained of poor memory which is in keeping with [PTSD] in which psychological amnesia is a common phenomenon." (Court's emphasis added)

8 An "Update Report" by the Art Psychologist, which was also furnished to the Tribunal, recorded that the applicant had continued with weekly sessions, her concentration and memory remained poor and many of the symptoms of PTSD continued to be present. She said that the ongoing wait for her appeal had caused her anxiety and stress, which was "manifested in her being unable to manage daily life at times and resulting in increased suicidal and self harm thoughts. She is in a constant state of fear or confusion." The psychotherapist said the applicant was committed to her rehabilitation, had engaged well with the work and was slowly addressing the trauma she experienced before coming to Ireland. As in her earlier report, she strongly recommended that the applicant be given the opportunity to continue with her ongoing work.

9 The applicant's second oral hearing took place on the 7 ^th June, 2007. The Tribunal Member records that the applicant outlined the rapes which occurred and also how she found out that father had been murdered. She was cross examined on issues relating to contact with her home and on the contents of purported death certificates and an affidavit furnished to the Tribunal. She answered questions relating to her education and employment. She explained why she had not disclosed the rapes earlier. It was put to her that now that her father was dead, the danger to her from the people who were seeking him was now over but she responded that she said she doesn't believe that was the case.

10 The Tribunal noted that three SPIRASI reports were submitted and that submissions had made to the effect that the reports strongly recommend that the applicant should be given an opportunity to live in Ireland to continue her counselling / psychotherapy. The Tribunal Member next set out various legal provisions...