K (A O)(Nigeria) v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 31 July 2015
• Neutral Citation: [2015] IEHC 507
• Date: 31 July 2015
• Court: High Court

[2015] IEHC 507

THE HIGH COURT

[No. 49 J.R./2013]

K (A O)(Nigeria) v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

No Redaction Needed

Approved Judgment

BETWEEN

A.O.K (NIGERIA)

APPLICANT

AND

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

RESPONDENTS

Asylum, Immigration & Nationality – Appeal against the decision of the Refugee Appeals Tribunal – Order of certiorari – Whether evidence of applicant credible – The Refugee Convention, 1951 – European Communities (Eligibility for Protection) Regulations 2006 – Fear of persecution

Facts: The applicant sought an order of certiorari by way of judicial review for quashing the decision of the first named respondent affirming the decision of the Refugee Applications Commissioner that the applicant should not be declared a refugee. The applicant contended that the first named respondent did not address the country of origin information and fear of persecution asserted by the applicant subjectively in the light of the fact that the applicant's family had been killed in a bomb blast in the country of origin.

Mr. Justice Eagar refused to grant an order of certiorari to the applicant. The Court however, criticized the first named respondent for making the observation that before seeking an international protection, it was necessary for a refugee to seek protection in the country of origin, which was subsequently refused. The Court held that under art. 1 (A) (2) of the Refugee Convention, 1951, it was not required that a refugee must obtain national protection before seeking international protection. The Court found that in the judicial review, the jurisdiction of the Court was limited to ascertain whether there was any error in applying the principles of law by the first named respondent. The Court found that the first named respondent addressed each and every concern of the applicant and rightly held that the core claim of the applicant was based on persecution owing to the land dispute and there existed no real risk or harm to him if he would return to the country of origin.

1 1. The Applicant is a national of Nigeria who arrived in the State on the 15 ^th July 2012 and who applied for asylum in the State on the 16 ^th July 2012. The relief sought by the Applicant is an order of certiorari by way of application for judicial review quashing the decision of the first named Respondent to affirm the decision of the Refugee Applications Commissioner dated the 23 ^rd November 2012. The grounds upon which relief was sought were:-

1 ) The Tribunal, having determined the Applicant's appeal substantially on the basis of adverse credibility findings, erred in law in foreclosing on speculation in respect of the likelihood of the Applicant being exposed to future persecution in Nigeria by reason of his land ownership and family membership.

2 ) Without prejudice, the manner in which the Tribunal determined the Applicant's claim carries the hallmarks of prejudgment including the startling and undue deference to the Commissioner (the Applicant has stated in the course of his explaining an inconsistency perceived by the Tribunal to exist in his evidence, that at interview he was shouted at and unable to give all appropriate evidence, but the Tribunal stated that no credence was being given to the explanation) and also the statement made by the Tribunal at the outset that she had "read a bank of country of origin information in relation to Nigeria".

3 ) The procedures and tactics adopted by the Tribunal were manifestly unfair. The Applicant stated that his entire family, parents and four siblings had been killed by Boko Haram in a Church attack, and was challenged with country reports stating that three persons had been killed in the attack. The Tribunal later relates "an internet document" stating that "at least 50 people in the bombings and in reply". This information was never put to the Applicant, or the presenting officer in the course of the oral hearing. Had it been done it might well have lead to a different approach being taken by the presenting officer.

4 ) The Tribunal erred in law in making credibility findings on the basis of incorrect findings of fact including that he did not know the identity of the killer who informed the Applicant of the danger he was in. The Applicant had named that person as T.C.O both at interview, in his ASY1 form and on conjecture. Further findings were made in respect of peripheral matters including a total over-emphasis upon the Applicant's travel. While no clear findings were made in respect of the central land issue or on the fate of the Applicant's family.

5 ) In finding that the Applicant is "most likely an economic migrant" the Tribunal erred in law in failing to consider that regardless of such a finding the Applicant may also hold well founded fears or persecution. Further there was no evidence before the Tribunal upon which to base such a finding.

6 ) By reason, inter alia, of the improper deference to the Commissioner, and also the lack of independence of the Refugee Appeals Tribunal, as seen e.g. in the absence of any stated reason for the dismissal of individual members of the Tribunal, the Applicant had been denied an effective remedy for the purpose of giving effect to the provisions of Article 39 of Council Directive 2005/85/EC. As a result of this denial, the Applicant's asylum application has not been lawfully determined.

7 ) The Tribunal erred in law in failing to adequately consider the notice of appeal and country reports supportive of the Applicant's claim.

8 ) The decision of the Tribunal lacks coherency and fails to provide a clear and rational basis for the Minister upon which to make a decision on the Applicant's claim.

9 ) The finding in respect of internal relocation was made wholly inconsiderate of the light of facts or in accordance with the statutory scheme or UNHCR Guidelines.

10 ) Having accepted the lack of effective police or court protection, the Tribunal erred in law in finding that "it is a requirement that an Applicant must seek the protection of their own country and be refused before they can seek international protection".

11 ) The Tribunal erred in law in taking into account matters irrelevant to its determination and/or failed to take into account relevant considerations.

2 2. The Statement of Grounds was verified by the affidavit of the Applicant who stated that he was a national of Nigeria and was born on the 13 ^th July 1980. His parents and four siblings were killed in a church bombing by the Boko Haram on the 17 ^th June 2012. He said he was the beneficiary of his father's will, including land with oil value which his cousins wanted and indeed procured hired killers to eliminate him. He says that in such circumstances, he fled in fear of his life and arrived in Ireland on the 15 ^th July 2012 and applied for asylum. He said the oral hearing before the first named Respondent took place on the 20 ^th November 2012 and by letter dated the 7 ^th January and received on the 10 ^th January 2013 he was notified that his appeal was unsuccessful.

Grounds of appeal

3 3. The first named Respondent indicated that the Applicant's claim was based on thirteen grounds of appeal attached to the notice of appeal, the Applicant's evidence, the submissions made in the notice of appeal and at the hearing, country of origin information, the information provided in the ASY1 application and the Applicant's asylum questionnaire and the replies given in response to the questions by or on behalf of the Commissioner on the report made pursuant to s. 13 of the Act. It is noted that once again that one of the matters which is relied upon by the first named Respondent, that is the Applicant's evidence, is not attached to the decision of the first named Respondent. This court has notes made by the solicitor for the Applicant at the hearing and while no criticism is directed at the solicitor they are, in this court's experience, never full notes of evidence that is given before the Tribunal. However this court notes that no objection has been taken to the absence of the Applicant's evidence before the Tribunal.

The Applicant's claim - evidence before the Tribunal

4 4. At the beginning of the hearing the first named Respondent advised that the hearing was de novo, inquisitorial, and informal and that all matters appropriate to the case would be taken into consideration and that all relevant country of origin information would be examined. The first named Respondent indicated that she had read a bank of country of origin information relating to Nigeria. However the Tribunal invited the Applicant's legal representation to bring to her attention any piece of country of origin information which she felt might be particularly relevant to the Applicant's case. The Applicant's solicitor did not refer to any specific document but the first named Respondent bore in mind all aspects of the country of origin information she had read regarding customs and events which she had come across in such country of origin information in the context of the Applicant's situation. The presenting officer handed into the Tribunal an extract from the UK Border Agency Operational Guidance Note Nigeria and dated the 4 ^th October 2012 and para. 2.3.3 noted in particular. The first named Respondent stressed that it was incumbent on an Applicant to be truthful in giving his evidence and to cooperate with the Tribunal. The procedure to be adopted was outlined at the outset.

5 5. The Applicant said he had filled in the questionnaire himself in his own handwriting. On file there is a refusal report from the Garda National Immigration Bureau in Dublin indicating that the Applicant arrived at Dublin Airport on the 15 ^th July 2012 on board an Etihad Airways...