K.M. v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 18 July 2007
• Neutral Citation: [2007] IEHC 300
• Court: High Court
• Date: 18 July 2007

[2007] IEHC 300

THE HIGH COURT

[No. 332 J.R./2006]

M (K) v REFUGEE APPEALS TRIBUNAL & ORS

JUDICIAL REVIEW

BETWEEN

K.M.

APPLICANT

AND

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

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

REFUGEE ACT 1996 S17

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11B

REFUGEE ACT 1996 S13(6)(a)

REFUGEE ACT 1996 S16

REFUGEE ACT 1996 S13(5)

REFUGEE ACT 1996 S16(3)

REFUGEE ACT 1996 S11B(a)

REFUGEE ACT 1996 S11B(c)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

O'KEEFE v BORD PLEANALA 1993 1 IR 39

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

REFUGEE ACT 1996 S13(6)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

NGUEDJO v REFUGEE APPLICATIONS COMMISSIONER UNREP WHITE 23.7.2003

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

MOYOSOLA v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP HIGH COURT CLARKE 23.6.2005 2005/40/8261

I (U) v REFUGEE APPEALS TRIBUNAL & ORS UNREP MURPHY 23.1.2007 2007 IEHC 72

CARCIU v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HIGH COURT FINLAY GEOGHEGAN J 4.7.2003 2003/8/1638

BISONG v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (GARVEY) UNREP O'LEARY 25.4.2005 2005/4/814 2005 IEHC 157

KRAMARENKO v REFUGEE APPEALS TRIBUNAL & ORS 2005 4 IR 321 2004 2 ILRM 550 2004 26 6170

MUIA v REFUGEE APPEALS TRIBUNAL (O'GORMAN) UNREP CLARKE 11.11/2005 2005/40/8300 2005 IEHC 362

SANGO v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (MCHUGH) UNREP PEART 24.11.2005 2005/53/11227 2005 IEHC 395

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL (HURLEY) & MIN FOR JUSTICE UNREP PEART 9.7.2004 2005/15/3102 2004 IEHC 436

A (O) v MIN JUSTICE & D (L) 2003 1 IR 1

GASHI v MIN JUSTICE UNREP CLARKE 3.12.2004 2004/19/4277

MEADOWS v MIN JUSTICE & ORS UNREP GILLIGAN 19.11.2003 2003/34/8235

VILVARAJAH v UNITED KINGDOM 1992 14 EHRR 248

ZGNAT'EV v MIN FOR JUSTICE UNREP FINNEGAN 29.3.2001 2002/29/7601

TRAORE v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2004 2 IR 607 2004 49 11175

AKINYEMI v MIN JUSTICE UNREP SMYTH 2.10.2002 2002/1/128

NICOLAI v REFUGEE APPEALS TRIBUNAL (ZAIDAN) & MIN FOR JUSTICE UNREP O'NEILL (EX TEMPORE) 7.10.2005 2005/44/9179 2005 IEHC 345

REFUGEE ACT 1996 S11B(b)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(b)

IMMIGRATION LAW

Asylum

Appeal - Assessment of credibility - Whether well-founded fear of persecution on grounds of religion - Failure to produce documentation - Inconsistencies - Failure to seek state protection - Fair procedures - Absence of oral hearing - Treatment of country of origin information - Irrationality and unreasonableness - Consideration of future persecution - Delay - Hearsay - Standard of review - Whether substantial grounds for contending decision invalid - Refugee Act 1996 (No 17), ss 11 and 13 - O'Keeffe v An Bord Pleanala [1993] IR 39, Nguedjo v RAC (Unrep, White J, 23/7/2003), Idiakheua v Minister for Justice [2005] IEHC 150 (Unrep, Clarke J, 10/5/2005), Moyosola v RAC [2005] IEHC 218, (Unrep, Clarke J, 23/6/2005), I(U) v RAT [2007] IEHC 72, (Unrep, Murphy J, 23/1/2007), Carciu v Minister for Justice (Unrep, Finlay Geoghegan J, 4/7/2003), Bisong v Minister for Justice [2005] IEHC 157, (Unrep, O'Leary J, 25/4/2005), Kramarenko v RAT [2004] IEHC 101, (Unrep, Finlay Geoghegan J, 2/4/2004), Muia v RAT [2005] IEHC 363, (Unrep, Clarke J, 11/11/2005), Sango v Minister for Justice [2005] IEHC 395, (Unrep, Peart J, 24/11/2005), da Silveira v RAT [2004] IEHC 436, (Unrep, Peart J, 9/7/2004), O(A) and L(D) v Minister for Justice [2003] IR 1, Gashi v Minister for Justice [2004] IEHC 394, (Unrep, Clarke J, 3/12/2004), Meadows v Minister for Justice (Unrep, Gilligan J, 4/11/2003), Vilvarajah v United Kingdom [1991] (Case No 45/1990), Z v Minister for Justice (Unrep, Finnegan J, 29/3/2001), Traore v RAT [2004] IEHC 606, (Unrep, Finlay Geoghegan J, 14/5/2004), Z v Minister for Justice [2002] 2 ILRM 215, Akinyemi v Minister for Justice (Unrep, Smyth J, 2/10/2002) and Nicolai v Zaidan [2005] IEHC 345, (Unrep, O'Neill J, 7/10/2005) considered - Application dismissed (2006/332JR - Edwards J - 18/7/2007) [2007] IEHC 300

M(K) v RAT

the applicant contended, inter alia, that the respondent breached fair procedures in failing to put concerns it had with the applicant’s credibility to him prior to making its decision and failing to have regard to all country of origin information before it. It was also contended on his behalf that the respondent’s negative credibility findings with respect to the applicant’s travels in the years 2003 to 2004 were peripheral to the core claim for persecution and should not have been considered.

Held by Mr Justice Edwards in refusing the applicant leave to seek judicial review, 1, that there was no meaningful effort in the applicant’s grounds of appeal to the respondent to explain the damaging contradictions and inconsistencies in his questionnaire and interview. It was a matter for the respondent to draw such inferences from the evidence as it stood and there was no requirement that the general inference of incredulity which arose in the judgment of the respondent had to be subsequently put back to the applicant for comment. Accordingly, there was no breach of fair procedures in relation to that ground raised.

2. That, in circumstances where the respondent had the relevant documentation and contended, in general terms, that it had regard to all the relevant facts, it was to be inferred that the respondent had, in fact, considered country of origin information. Further, it was not necessary for the respondent to specifically refer to country of origin information as its decision was based upon a major credibility deficit with respect to the applicant’s claims.

3. That the respondent’s findings with respect to the applicant’s travels in the years 2003 to 2004 were of direct relevance to the issues set out in s. 11B to which the respondent was obliged to have regard in assessing the credibility of the applicant.

Reporter: P.C.

1 Mr. Justice John Edwards delivered on the 18th day of July, 2007.

Background Facts

2 The applicant was born in Ibadan, Oyo State, Nigeria, in 1970. He is of Yoruba ethnicity. The applicant's father, who died when the applicant was 15 years old, was the elder of the Osugbo cult. The applicant contends that this cult practises ritual human sacrifice and that his father had sacrificed the older brother of the applicant when initiated into the cult. The applicant was aware since his father's death that he was expected to join the cult, but at that time this was not of great concern to him. However, following his marriage and when his wife was five months pregnant, cult members called to the applicant on three occasions to remind him of his duties in relation to initiation and sacrifice. He believed that they wanted him to sacrifice his child when he or she was born. The applicant fled to the Republic of Benin in February, 2005. He subsequently went to France in July, 2005. He claims that while in France he was informed that his wife and child were in Ireland and he travelled to Ireland on the 4 ^th September, 2005 and upon arrival claimed asylum on the basis that he had a well founded fear of being persecuted for reasons of religion. He applied for a declaration pursuant to s. 17 of the Refugee Act, 1996, that he was a refugee as defined in s. 2 of that Act. He completed the necessary form and the questionnaire in support of his claim. He was subsequently interviewed by an investigating officer authorised in that behalf by the Refugee Applications Commissioner in the context of an investigation of the application by the Commissioner pursuant to s. 11 of the Refugee Act, 1996 for the purpose of ascertaining whether the applicant was a person in respect of whom a declaration should be given. Following the said s. 11 investigation, the Commissioner prepared a report in writing in accordance with s. 13 of the Refugee Act, 1996 (as amended) as to the results of the investigation and the said report recommended to the Minister for Justice, Equality and Law Reform that the applicant should not be declared a refugee as he had failed to establish a well-founded fear of persecution as defined under s. 2 of the said Act.

3 The RAC's report and recommendation found that there were serious credibility issues with the applicant. In arriving at that assessment the RAC engaged in a critical analysis of all of the circumstances and factors pertaining to the case and the assessment took into account the matters to which the RAC was obliged to have regard pursuant to s. 11B of the Refugee Act, 1996. In all the circumstances the RAC was satisfied that the applicant had showed either no basis or a minimal basis for the contention that he was a refugee, and held accordingly that section 13 (6)(a) of the Refugee Act, 1996 (as amended) applied.

4 The court is not concerned with the correctness or legality of the decision and recommendation of the Refugee Applications Commissioner. However, the applicant, as he was entitled to do, appealed the recommendation of the Refugee Applications Commissioner to the Refugee Appeals Tribunal (the first named respondent herein) pursuant to s. 16 of the Refugee Act, 1996. Nevertheless it is important to rehearse in a little detail the basis for the Refugee Applications Commissioners' decision because of the finding that s. 13(6)(a) of the Refugee Act, 1996 applied. By virtue of the application of that provision the applicant's appeal to the first named respondent was required to be determined without an oral hearing pursuant to s. 13(5) of the 1996 Act and also s. 16(3) of the 1996 Act as amended by the...