O. J. O. v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 03 April 2014
• Neutral Citation: [2014] IEHC 204
• Court: High Court
• Date: 03 April 2014

[2014] IEHC 204

THE HIGH COURT

[Record No. 280/J.R./2009]

A (T) & O (OJ) (a minor) v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

BETWEEN

T. A.

AND

O. J. O. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND T. A.)

APPLICANTS

AND

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND, THE ATTORNEY GENERAL

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

Judicial Review – Leave – Refugee Appeals Tribunal – Refugee Status – Persecution – Minor Applicant – Country of Origin Information -

Facts: This case concerned an application for leave to seek judicial review of a decision of the Refugee Appeals Tribunal on the 4 ^th February 2009, refusing the applicants refugee status. The applicants in the case were an Nigerian mother and her son who was born in Ireland on the 18th April 2006. The first named applicant was born in Nigeria and arrived in Ireland and claimed asylum on the 10 ^th April 2006. She claimed to have fled Nigeria in fear of persecution from her mother in-law and husband who she claimed had been violent towards her and who had threatened to take custody of her children. The second named minor applicant”s claim for asylum was based on that of his mothers who stated that if she was returned to Nigeria that he would be taken from her by his father. Counsel for the applicant submitted that the errors in assessing the appeal of the first named applicant undermined the determination that the second named applicant did not face a risk of future persecution on going to Nigeria. Counsel for the applicants raised three substantive complaints in respects of the tribunal proceedings. Firstly, it was submitted that the tribunal erred factually in assessing credibility and that the refusal of the applicants' appeals is in breach of s. 16(16) of the Refugee Act 1996. Secondly, it was submitted that the determination had been made in breach of the applicant”s constitutional rights to procedural fairness as it was contended that the first named applicant had not been given the opportunity to address or explain several of her credibility issues. Finally, it was claimed that the determination was in breach of the respondent's duty to determine an appeal within a reasonable time and that the delay led to serious factual errors in assessing credibility and prejudice to the applicants.

Held by Justice Mac Eochaidh that the first complaint raised by the applicant was that the tribunal breached s. 16(16) of the Refugee Act 1996 in making the finding that a document said to be a Nigerian statutory declaration of age acquired by the first named applicant served to undermine her claim as it appeared to have been acquired prior to the problems which caused her to flee. It was determined that the applicant had not adequately pleaded a relevant complaint and that there was nothing to suggest that the tribunal had breached the provisions of s16 or erred in making their determinations. The tribunal had recited a précis of the applicant's evidence and that evidence appeared to be confused and somewhat contradictory. The court agreed with the submission by counsel for the respondent that the time the applicant claimed her marital problems began is not germane to the fact that she appeared to have contradicted herself as to whether she knew why her uncle obtained the declaration. Consequently, the court rejected the applicant”s claim that the passage of time led to her having difficulties in recalling the identity of the declarant on the declaration of age given the fact that the person's name and address is clearly printed thereon. The court further accepted the respondent”s submission that the tribunal did not make any adverse credibility finding in relation to the change of interest exhibited by the husband in the child. In respects of the applicants submission that the tribunal failed to take into account statements made in her initial interviews, the court also found that the tribunal was not in breach of s16(6), having discussed the applicant claims in its determinations. The two final complaints made by counsel for the applicant in respect of the Tribunal Member's obligations to comply with s. 16(16) of the Refugee Act 1996 related to the claim that the tribunal's summary of the first named applicant's problems with her husband ignored the threats and violence against her, compounded by a lack of state protection available in Nigeria, and that the tribunal failed to consider the entirety of the evidence adduced including the country of origin information. In respects of these claims, Justice Mac Eochaidh agreed with the tribunal”s decision that the applicant”s fear of persecution from her husband was not justified. He further reasoned that the tribunal had not failed to consider country of origin information. He rejected the applicant”s claims in this regard. The second complaint raised on behalf of the applicants was that there was a breach of fair procedures as the Tribunal Member was said to have relied on adverse credibility findings which were not put to the applicant to give her an opportunity to explain herself. Counsel contended that the first named applicant did not have the opportunity to explain adverse credibility findings in relation to: being thrown out of her house by her husband; her movements prior to leaving Nigeria; and her difficulties remembering who sourced the statutory declaration of age. Justice Mac Eochaidh further dismissed the applicant”s complaint in respect of this ground reasoning that whilst the tribunal conducted an inquisitorial function and was required to give a reasonable opportunity to the applicant to know that matters likely to affect the judgement, it was not required to enter into a debate with the applicant. The final substantive complaint raised by the applicant was that the respondent was in breach of the duty to determine appeals within a reasonable time and that the delay in determining the appeal led to errors led to errors in her assessment of credibility and resulted in a prejudice to the applicants. According to Justice Mac Eochaidh the applicants failed to show any prejudice or make out any errors in the tribunals assessment of their claim. Furthermore, in respect of the case of the second named applicant, counsel made no submission other than that the errors in assessing the appeal of the first named applicant also undermined the determination that the second named applicant did not face a risk of future persecution on going to Nigeria. Having found conclusively that the assessment of the Tribunal did not show any such legal defects or errors, Justice Mac Eochaidh rejected the claims of the second named applicant also. The application for leave to seek judicial review was accordingly refused.

1 1. This is a 'telescoped' application for leave to seek judicial review of a decision of the Refugee Appeals Tribunal dated 4 ^th February 2009, refusing the applicants refugee status.

2 2. The applicants in this case are a Nigerian mother and her son who was born in Ireland on 18 ^th April 2006. The first named applicant was born in Nigeria on 17 ^th May 1975 and arrived in the State and claimed asylum on 10 ^th April 2006. She claims to have fled Nigeria in fear of persecution from her mother-in-law and primarily from her husband who she claims has used violence against her and threatened to take custody of her children. The second named minor applicant's claim for asylum is based on that of his mother who states that if she is returned to Nigeria he will be taken from her by his father. Counsel for the applicant submits that the errors in assessing the appeal of the first named applicant undermine the determination that the second named applicant does not face a risk of future persecution on going to Nigeria.

Submission

3 3. In her submissions, Ms. Cronin B.L., for the applicants, raises three substantive complaints in respect of the Tribunal decision in these proceedings. In the first instance, it is submitted that the Tribunal erred factually in assessing credibility and that the refusal of the applicants' appeals is in breach of s. 16(16) of the Refugee Act 1996. Second, counsel submits that the determination was made in breach of the applicants' constitutional rights to fair procedures as it is contended that the first named applicant was not given an opportunity to address or explain several of her credibility issues. Finally, it is claimed that the determination is in breach of the respondent's duty to determine an appeal within a reasonable time and that the delay led to serious factual errors in assessing credibility and prejudice to the applicants.

4 4. In relation to the first complaint, counsel submits that the Tribunal breached s. 16(16) of the Refugee Act 1996 in making the finding that the statutory declaration of age acquired by the first named applicant in 2005 served to undermine her claim as it appeared to have been acquired prior to the problems which caused her to flee. However, contrary to this, counsel points to a statement made by the first named applicant in her questionnaire that the problems with her husband began within six months of their marriage in 2005. It is submitted that owing to the lapse of time between 2005 and her oral appeal in 2008, it is not surprising that the first named applicant had difficulty in remembering who sourced the statutory declaration of age on her behalf and that a credibility finding in this regard was disproportionate and unreasonable.

5 5. Counsel contends that the Tribunal failed to consider that the first named applicant's friend told her husband that she was pregnant and that this resulted in him finding her and demanding the children. It is also submitted that the Tribunal failed to take into account the statements made by the first named...