O.M.R v The Minister for Justice and Equality

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Faherty
Judgment Date06 Sep 2016
Neutral Citation[2016] IEHC 532
Docket Number[2014 No. 585 J.R.]

[2016] IEHC 532

THE HIGH COURT

JUDICIAL REVIEW

Faherty J.

[2014 No. 585 J.R.]

BETWEEN
O. M. R.
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY,
AND
THE REFUGEES APPLICATIONS COMMISSIONER, IRELAND
AND
THE ATTORNEY GENERAL
RESPONDENTS

Asylum, Immigration & Nationality – Refusal of asylum – Internal relocation – Certiorari – Judicial review – Negative credibility – Statutory right to appeal

Facts: Following the refusal of the asylum application of the applicant on the grounds of credibility by the second named respondent, the applicant now sought leave to apply for an order of certiorari against the decision of the second named respondent pending the determination of the appeal before the Refugee Appeals Tribunal, which had not yet commenced. The applicant contended that there was no elaboration of the credibility issues raised by the second named respondent. The applicant contended further contended that the fundamental issue of the conversion of the applicant's religion which put the applicant in fear of persecution, was not properly dealt with by the second named respondent. The applicant argued that although that there was a statutory right to appeal the decision of the second named respondent but the applicant was not barred to seek judicial review where there was an unfair first instance hearing

Ms. Justice Faherty dismissed the application of the applicant for leave to seek judicial review. The Court held that the alleged flaws in the decision of the second named respondent related to the quality of the decision and did not constitute errors of such jurisdiction that would require judicial review. The Court held that although there was no clear finding on the applicant's conversion of religion, it was not so fatal to vitiate the decision of the second named respondent as the second named respondent proposed internal relocation to the applicant for protection. The Court held that it was incumbent on the applicant to prove on appeal that the state protection was not adequate.

JUDGMENT of Ms. Justice Faherty delivered on the 6th day of September, 2016
1

In these telescoped proceedings, the issue to be decided in this case is whether the applicant is entitled to judicial review of the decision of the Refugee Applications Commissioners or whether the complaints about the decision can be dealt with on appeal to the Refugee Appeals Tribunal.

Extension of time
2

A short extension of time was required for the purpose of these proceedings which the court was satisfied to grant.

Background and procedural history
3

The applicant is a Nigerian national. Her claim for refugee status is based on a stated fear of persecution in Nigeria for reasons of religion, specifically her fear of persecution by Boko Haram as a result of her conversion from Islam to Christianity. The applicant claims that she converted to Christianity at the age of fourteen.

4

The applicant's claimed history is that she was born into a Muslim family and that following her birth in 1969 she lived with her family at a named address in Lagos until aged 7. She asserts that thereafter her mother, brother and herself moved from place to place and on occasions stayed in various churches in Lagos. Between 2000 and 2007, they resided at a named location in Lagos. Thereafter, the family resumed a peripatetic lifestyle until, ultimately, in March 2009, the applicant, together with mother and her daughter, moved permanently to Kano State. Shortly after this move, the applicant's mother passed away.

5

The applicant claims that for a number of years prior to her move to Kano State she worked as a prophetess with a named Church in Lagos, and latterly worked in this capacity in Kano State. She asserts that in April, 2010 her Church in Kano State was attacked by Boko Haram. She states that many people were killed as a result of the attack which was reported in the Nigerian media. During the attack the applicant became separated from her daughter. She asserts that she last had contact with her daughter in May 2010. Following the attack on her Church, the applicant sought assistance from the police but they too were fleeing at this time and unable to help her. It is the applicant's primary contention that Boko Haram continue to look for her and that they will kill her if she returns to Nigeria as they know that she comes from a Muslim family and that she converted to Christianity. She states that her Muslim origins are known to Boko Haram by virtue of her name.

6

The applicant claims that her travel to Ireland in May, 2010 was organised by her Church in Lagos and Kano. By arrangement, she travelled with a named Nigerian woman. She was unaware of what documents were used to facilitate her travel to Ireland. Upon arrival in this State, the applicant claims that she was left was in some unknown place by her travelling companion. She asserts that she was homeless between May, 2010 and December, 2011 when she was informed about a Church of a similar denomination to that of her Church in Nigeria. From December 2011 she was provided with accommodation in this Church. At the time she commenced living there, she was advised not to tell the pastor about her problems. In 2014 however her illegal status became known and she was advised to apply for asylum.

7

She made her asylum application on 9th April, 2014. She underwent a s. 8 interview on that date and she completed a questionnaire on 15th April, 2014. She was interviewed pursuant to s. 11 of the Refugee Act 1996 on 11th August 2014.

8

For the purposes of her claim the applicant presented a number of documents comprising:

1) A Church identification card which indicated the applicant's rank as 'prophetess' and her duty as a 'worker';

2) Death certificates in respect of her parents;

3) Three photographs of the Church attended by her in Kano State; and

4) A letter from a named lawyer with an address in Lagos which referred to the applicant's profession as a prophetess and that her Church in Kano State had been razed by Boka Haram in 2010.

9

The Commissioner's report issued to the applicant on 17th September, 2014.

The section 13 report
10

The report found, inter alia, that the applicant's account of events raised credibility issues with regard to her claim:

• It was found there was a contradiction between the applicant's questionnaire and s. 11 interview concerning the accounts given by her as to when she moved to Kano State. At the s. 11 interview, she stated that she moved there permanently in 2009 whereas her questionnaire indicated that she had spent 2000 to 2010 in Kano State.

• The applicant was found to display 'basic knowledge of the Islamic faith'. The report noted her contention of attending churches against her father's wishes and her claim to have converted to Christianity aged fourteen despite her earlier claim of having stayed in churches from the age of seven. With regard to her work as a prophetess for a Church based in Lagos and Kano for five years prior to her travel to Ireland, it was noted that in a successful application for an Irish visa in 2009 the applicant had listed Lagos her residential address and workplace. The report noted that 'when this contradiction was put to the applicant she contended that a Church member filled out her visa application, despite her stating in this visa application form that she did not receive any assistance, and that whilst she was a member of this Church for a long time she was not employed by them until 2005.'

• With regard to the applicant's claim that the Church she attended in Kano State was attacked in April, 2010 by Boko Haram, it was noted that she was unable to recall the date when this occurred due to having a 'bad memory', despite her claim of having lost her daughter during the incident. While the authorised officer was able to find information confirming the existence of a Church in Kano State of the denomination described by the applicant, no information could be found on an attack by Boko Haram on the said Church in April, 2010.

• It was noted that 'despite [the applicant's] ability to read, write and speak English she maintained that she did not know where she was in Ireland during [May 2010 to December 2011], .. [D]espite the fact she had previously travelled to Ireland in 2009, despite her ability to read, write and speak English, and despite feeling secure enough to reside in this Church from December 2011 she did not seek asylum until 9th April, 2014. .. She has provided no evidence to suggest she returned to Nigeria from Ireland prior to the expiry of her Irish visa in 2009. When questioned about her delay in seeking asylum she asserted that the lady who brought her to the aforementioned church in December 2011 advised her not to tell the pastor there about her problems. She went on to contend that she did not know about seeking asylum .. . It is not considered credible that the applicant could travel to Ireland without knowing, or possessing, the travel documents which she used or that she would not know where she resided in Ireland between May 2010 and December 2011. Furthermore, it is considered that the applicant had ample time and opportunity to claim asylum prior to April 9th, 2014 yet failed to do so.' With regard to these findings the provisions of s. 11B (C) and 11B (D) of the Refugee Act 1996 where applied to the applicant.

11

The Commissioner then went on to find that state protection in Nigeria was available to the applicant should she require it as country of origin information indicated that 'the Nigerian Authorities are willing and able to take action against Boka Haram.' It was also considered that the applicant could internally relocate in Nigeria should she require to do so.

The challenge to the decision
12

The within proceedings commenced by way of notice of motion on 9th October 2014 wherein the applicant seeks an...

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1 cases
  • OMR v Minister for Justice and Equality
    • Ireland
    • High Court
    • 14 November 2016
    ...to exhaust the remedy of appeal to the Refugee Appeals Tribunal. These proceedings O.M.R. v. Minister for Justice Equality (No. 1) [2016] IEHC 532 (unreported, High Court, 6th September 2016) have recently been dismissed by Faherty J. An application for leave to appeal is currently pending.......

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