M.A. (Nigeria) v Refugee Appeals Tribunal

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Stewart
Judgment Date12 January 2016
Neutral Citation[2016] IEHC 16
Date12 January 2016
Docket Number[2012 No. 1001 J.R.]

[2016] IEHC 16

THE HIGH COURT

JUDICIAL REVIEW

Stewart J.

[2012 No. 1001 J.R.]

BETWEEN
M.A. (NIGERIA)
APPLICANT
AND
REFUGEE APPEALS TRIBUNAL
MINISTER FOR JUSTICE AND EQUALITY
ATTORNEY GENERAL
RESPONDENTS

Asylum, Immigration & Nationality – The Refugee Act 1996 – Appeal against the decision of the Refugee Appeals Tribunal – certiorari – Fear of persecution – Adequacy of state protection – Internal relocation

Facts: The applicant sought leave for judicial review and an order of certiorari for quashing the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicant should not be declared a refugee. The first named respondent contended that the applicant had failed to establish a well-founded fear of persecution. The applicant contended that the first named respondent had failed to engage into enquiry in relation to the adequacy of state protection and internal relocation.

Ms. Justice Stewart granted an order of certiorari and quashed the decision of the first named respondent and remitted the case for a de novo hearing. The Court observed that there was no obligation on the applicant to seek state protection and it was incumbent upon the decision-maker who attempted to make an observation in relation to state protection as to whether the state protection was in real forthcoming. The Court held that any finding as to internal relocation must be made by specifying the place of internal relocation only if the well-founded fear of persecution had been established. The Court found that the decision of the first named respondent was vague, unclear and confusing on the aspect of credibility and internal relocation.

JUDGMENT of Ms. Justice Stewart delivered on the 12th day of January, 2016
1

This is telescoped hearing for judicial review seeking certiorari to quash a decision of the Refugee Appeals Tribunal dated 1st October, 2012, and remitting the appeal of the applicant for de novo consideration by a different tribunal member.

2

The applicant was outside the fourteen-day time period allowable in cases of this nature. The reason for the delay was explained on affidavit by the applicant, and the respondents did not raise an issue at hearing with the extension of time. In the circumstances, and in light of the explanation provided by the applicant, I granted the necessary extension.

Background
3

The applicant is a Nigerian national, born on 19th July, 1978, and is a single man. The alleged persecution that the applicant claims gave rise to his claiming international protection is as follows. The applicant survived a violent attacked on his church in Maiduguri in September, 2011. He states that he had previously inadvertently witnessed the attackers unload their explosives in August, 2011 and reported the incidents to the elders of the church. The applicant maintains that he was seen and identified by the assailants and, therefore, believes that his life would be in danger if he were to be located by the group. He states that the attackers are associated with the so-called Boko Haram militant group and are extremely violent. He states that he was in hiding before he left that city in March/ April, 2012, and moved to the city of Benin before departing for Ireland.

4

The applicant arrived in Ireland on 5th June, 2012, using a false or fraudulently obtained South African passport. Upon detection, immigration officials at Dublin airport questioned the applicant regarding his intentions in visiting Ireland. The applicant initially maintained that he intended to stay for a six day holiday, that he had a booking at the Ibis hotel and planned to visit tourist attractions in the city. When informed by immigration officials that he would be refused entry to the State pursuant to s.4(3)(a)(k) of the Immigration Act, 2004, the applicant then stated that he was a Nigerian national and intended to claim asylum because he was a homosexual persecuted in Nigeria. His details were forwarded by the border management unit of the Irish Naturalisation and Immigration Service at Dublin airport to the Refugee Applications Commissioner (RAC). The applicant completed an ASY1 form on 18th June, 2006, wherein he stated that his fear of persecution stemmed from a fear of the militant group, rather than from his sexual orientation. The applicant completed a questionnaire on 20th June, 2012, and attended at the RAC for an interview pursuant to s.11 of the Refugee Act, 1996 (as amended) on 4th July, 2012.

5

The RAC issued a negative recommendation in respect of the applicant's claim dated 9th July, 2012. The applicant's claim was rejected based upon credibility findings; the authorised officer made further findings, namely, that state protection would be available to the applicant and that internal relocation was a feasible option available to the applicant. The applicant's legal advisors issued a form one, notice of appeal to the first named respondent dated 9th August, 2012.

Impugned decision
6

The decision of the Refugee Appeals Tribunal dated 1st October, 2012, the impugned decision in these proceedings, affirmed the negative recommendation of the RAC, that the applicant not be declared a refugee. The tribunal member sets out perceived issues with the applicant's claim under the heading “analysis of the applicant's claim”, which is exhibited from pg. 107 of the booklet. The section may be summarised as follows:-

1. The first time that the applicant mentioned that the men carrying barrels had guns was at the interview with the tribunal member;

2. The applicant was asked how many people were killed and injured in the church attack, to which he gave no reply;

3. Because the applicant had not reported his alleged fears to the authorities, it was not open to him to claim that state protection was unavailable;

4. Nothing happened to the applicant while he was in hiding for six months;

5. The applicant claimed to have no formal education; however, when asked how he had filled in the asylum questionnaire, he replied that an ex-girlfriend had taught him basic literacy skills;

6. The applicant had claimed to be a persecuted homosexual at Dublin airport, and later changed his claim. When questioned regarding this, he said that he had lost his mind;

7. There is no indication that the people unloading the barrels intended to specifically attack the applicant;

8. Internal relocation is open to the applicant, as he had lived in Benin, Nigeria, for two months prior to his departure to Ireland;

9. The tribunal member states in the penultimate sentence of the analysis section, ‘[h]aving had the opportunity to observe the applicant acutely throughout the hearing nothing the applicant has told me has convinced me that he has a well founded fear of persecution on any Convention ground’.

7

The decision then goes on to conclude:-

‘The Tribunal has considered all relevant documentation in connection with this appeal including the Notice of Appeal, country of origin information, the Applicant's Asylum Questionnaire and the replies given in response to questions by or on behalf of the Commissioner on the report made pursuant to section 13 of the Act.

Accordingly, pursuant to section 16(2) of the Act, I affirm the findings of the Refugee Applications Commissioner made in accordance with section 13 of the Act.’

Applicant's submissions
8

Counsel for the applicant Mr. Mark de Blacam, S.C., appearing with Mr. Garry O'Halloran, B.L., submitted that notwithstanding the discourse in the decision on credibility, it is unclear whether the applicant's narrative has been accepted. Counsel relied upon the decision of MacEochaidh J. in B.O.B. v. Refugee Appeals Tribunal & ors. [2013] IEHC 187.

9

The applicant argued that in making the credibility findings, and thereafter the state protection and internal relocation findings, the first named respondent failed to have proper regard to country reports pertaining to the activities of Boko Haram and the performance of the state authorities in providing that protection. The applicant submitted that this was in breach of the requirements of fair procedures pursuant to regulation 5(1) of the European Communities (Eligibility for Protection) Regulations 2006.

10

In relation to state protection, the applicant argued that the test for state protection is set out by Clarke J. in Idiakheua v. Minister for Justice, Equality and Law Reform & anor. [2005] IEHC 150. Further, the applicant submitted that when the tribunal member relied upon country of origin information to substantiate a finding that state protection existed; this involved selective reliance on country of origin information without appropriate reasons being given for the preferment of certain pieces of information over other such information, supportive of the applicant's position. Here, the applicant pointed to the decision of D.V.T.S. v. Minister for Justice, Equality and Law Reform & anor. [2007] IEHC 305.

11

The applicant submitted that the tribunal member erred in law in finding that the applicant could not claim a lack of state protection when he had never sought that protection. Moreover, the applicant contended, the internal relocation findings fell short of the principles established by Clark J. in K.D. [Nigeria] v. Refugee Appeals Tribunal & anor. [2013] IEHC 481.

Respondent's submissions
12

Counsel for the respondents, Ms. Emma Doyle, B.L., submitted that the applicant was not believed either by the authorised officer of the RAC or the tribunal member. Notwithstanding the credibility findings, the respondents argued, the onus is on the applicant to show that state protection is not available, as per P.O. (Nigeria) v. Minister for Justice and Law Reform & anor. [2010] IEHC 513, at para.4. [quote]

13

In regard to the internal relocation assessment, the respondents submitted...

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