K.O. v Minister for Justice, Equality and Law Reform and Another

• Jurisdiction: Ireland
• Judge: MR JUSTICE HEDIGAN
• Judgment Date: 16 October 2008
• Neutral Citation: [2008] IEHC 313
• Court: High Court
• Date: 16 October 2008

[2008] IEHC 313

THE HIGH COURT

[1024 JR/2006]

O (K) v Min for Justice & Refugee Appeals Tribunal

BETWEEN

K. O.

APPLICANT

AND

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

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

BANZUZI v REFUGEE APPEALS TRIBUNAL & ORS UNREP HIGH FEENEY 18.1.2007 2006/6/977

E (M) v REFUGEE APPEALS TRIBUNAL & ORS UNREP HIGH BIRMINGHAM 27.6.2008 2008 IEHC 192

K (G) & ORS v MIN FOR JUSTICE & APPEALS AUTHORITY & ORS 2002 2 IR 418

A (OA) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HIGH FEENEY 9.2.2007 2007/4/605

KVARATSKHELIA v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP HIGH HERBERT 5.5.2006 2006/33/6983

Abstract:

Immigration - Asylum - Appeal - Refugee Appeals Tribunal - Whether substantial grounds for contending that decision invalid - Whether necessary for decision maker to exhaustively list in decision all material submitted to it for consideration - Whether tribunal making error of fact.

the applicant sought leave to apply for judicial review of the decision of the respondent refusing to revoke the recommendation of the Refugee Applications Commissioner that she be refused asylum in the State. She contended that the respondent had failed to take account of documents submitted to it and made an error of fact in the decision.

Held by Hedigan J in refusing leave to apply for judicial review that it did not follow from an absence of an express reference to a document in a decision of the Tribunal that account was not taken of the document. It was open to the respondent to make the finding it did and there had been no error of fact in that regard.

Reporter: P.C.

1 MR JUSTICE HEDIGAN, delivered on the 16th day of October, 2008

2 1. The applicant is a national of Nigeria. She is seeking leave to apply for judicial review of the decision of the Refugee Appeals Tribunal ("RAT") to affirm the recommendation of the Office of the Applications Commissioner ("ORAC") that the applicant should not be declared a refugee.

FACTUAL BACKGROUND

3 2. The applicant's claim for asylum arises in the following circumstances. After their marriage in 2000, she lived with her husband on his family compound in Lagos. Her in-laws tried to force her to convert from Christianity and to engage in traditional rituals. She was subjected to multiple rapes and mistreatment by her brothers-in-law.

4 3. The applicant gave birth to three children in Nigeria. When the first-born daughter (K) was one year old, the applicant's in-laws abducted her and subjected her to FGM and other forms of mistreatment. The applicant does not know if K is alive today. When she gave birth to a second daughter (J), she fled with the infant to her hometown of Kano, in the north of Nigeria. She returned to Lagos to her husband and his family some nine months later. Thereafter, she gave birth to a son (M) but her in-laws took him from her and circumcised him. She says that his death a fortnight later was caused by her in-laws. She says that she considered reporting these events to the police but did not do so as she thought they would tell her to settle domestic matters by herself. Upon falling pregnant for a fourth time, the applicant decided to flee to Ireland with her remaining daughter (J).

PROCEDURAL BACKGROUND

5 4. The applicant was unsuccessful before ORAC, and appealed from that decision to the RAT. In support of her appeal, she submitted letters from the Limerick Rape Crisis Centre and Limerick Social Services, stating that she had been raped and was now traumatised. She also submitted a UK Home Office report on Nigeria for 2005. Receipt of these documents was acknowledged by the RAT.

6 5. An RAT oral hearing was held on 6 ^th April, 2004 and the Tribunal Member decided to reject the appeal by decision dated 30 ^th May, 2006. While accepting the applicant's account of her difficulties with her in-laws, the Tribunal Member found that the applicant's voluntary return from Kano to Lagos was not consistent with a genuine subjective fear of persecution, and that country of origin information indicates that State protection might reasonably have been forthcoming in Nigeria.

Extension of Time

7 6. The RAT decision was notified to the applicant by letter dated 15 ^th June, 2006. The applicant commenced the within proceedings on 17 ^th August, 2006, some six weeks after the expiry of the 14 day time-limit set by section 5 of the Illegal Immigrants (Trafficking) Act 2000. Nevertheless, as the applicant acted with all due expedition I am satisfied that there is good and sufficient reason for extending time.

THE SUBMISSIONS

8 7. The applicant's key complaints in respect of the decision are as follows:-

9 a a. Failure to take account of documents submitted by the applicant;

10 b b. Error of fact / misconstruction of evidence; and

11 c c. Failure to adequately assess whether State protection is available.

(a) Failure to take account of documents submitted

12 8. The applicant complains that the Tribunal Member failed to take account of the letters from the Limerick Rape Crisis Centre and Limerick Social Services. The respondents submit that these letters were not material to the Tribunal Member's assessment as it was not disputed that the applicant had been raped. It is further submitted that it does not follow from the fact that the letters were not expressly referred to in the decision that the Tribunal Member did not take account of them.

(b) Error of Fact / Misconstruction of Evidence

13 9. The applicant says that...