O.M.A.(Sierra Leone) v The Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 12 June 2018
• Neutral Citation: [2018] IEHC 370
• Docket Number: [2016 No. 873 J.R.]
• Court: High Court
• Date: 12 June 2018

BETWEEN

O.M.A. (SIERRA LEONE)

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2018] IEHC 370

Humphreys J.

[2016 No. 873 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Subsidiary protection – Risk of serious harm – Inhuman and degrading treatment or punishment – Applicant seeking certiorari of the respondent's decision refusing subsidiary protection – Whether the respondent erred in failing to consider the real risk of serious harm to the applicant in the form of inhuman and degrading treatment or punishment

Facts: The applicant travelled from the UK to the State in May, 2013, applying for asylum on 2nd May, 2013. That application was rejected by the Refugee Applications Commission on 2nd July, 2013. An appeal to the first respondent, the Refugee Appeals Tribunal, was refused on 21st November, 2013. He applied for subsidiary protection on 15th January, 2014. That application was rejected by the Commissioner on 26th November, 2015. An appeal to the Refugee Appeals Tribunal was dismissed on 17th October, 2016. A statement of grounds directed to that decision was filed on 16th November, 2016. The application was then opened before MacEochaidh J on 21st November, 2016. The leave decision was reserved but was not delivered prior to MacEochaidh J leaving the High Court to become a member of the General Court of the European Union. On 6th November, 2017 the matter was mentioned to Humphreys J and he granted leave. The applicant sought certiorari of the tribunal decision refusing subsidiary protection. The sole ground for that relief was that the tribunal erred in failing to consider the real risk of serious harm to the applicant in the form of inhuman and degrading treatment or punishment in his capacity as a trader subject to emergency laws in Sierra Leone.

Held by Humphreys J that the rejection of the applicant's credibility was fatal and that the applicant's entire point was constructed on a misconception.

Humphreys J held that the application would be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 12th day of June, 2018

1 The statement of facts as set out in the applicant's written submissions has significant omissions contrary to High Court Practice Direction HC78, but it is possible to reconstruct a chronology from the other papers filed in the case. The applicant claims to have been born in 1985 in Sierra Leone. He claims to have left Sierra Leone in October, 2011, travelling to Ghana, Nigeria and then London on foot of a visa granted for the period 9th January, 2012 to 9th July, 2012 in the false name of a Nigerian national called Rotima Adejumo. He then travelled from the U.K. to the State in May, 2013, applying for asylum on 2nd May, 2013. That application was rejected by the Refugee Applications Commission on 2nd July, 2013. An appeal to the Refugee Appeals Tribunal was refused on 21st November, 2013.

2 He applied for subsidiary protection on 15th January, 2014. His claim was that he worked as a cobbler and that men arrived at his premises asking him to join their criminal gang. He claimed that he closed his shop and moved to Freetown but the men came looking for him there and burned the shop down. His story was that all of this happened in late 2012. However, once he was informed that the Commissioner had obtained a fingerprint match from the U.K. border agency to the effect that his fingerprints matched that of a Nigerian citizen issued with a visa on 9th January, 2012 he magically changed his story and said that all of this happened in 2011.

3 His subsidiary application was rejected by the Commissioner on 26th November, 2015. An appeal to the Refugee Appeals Tribunal was dismissed on 17th October, 2016. A statement of grounds directed to that decision was filed on 16th November, 2016. The application was then opened before MacEochaidh J. on 21st November, 2016. Counsel informs me that the leave decision was reserved but was not in fact delivered prior to MacEochaidh J. leaving the High Court to become a member of the General Court of the European Union. On 6th November, 2017 the matter was mentioned to me and I granted leave. A statement of opposition was filed on 31st January, 2018.

4 I have received submissions from Mr. Eamonn Dornan B.L. and Ms. Sarah K.M. Cooney B.L. for the respondent.

Relief sought

5 Certiorari of the tribunal decision refusing subsidiary protection is the primary substantive relief claimed. The sole ground for that relief is that the tribunal erred in failing to consider the real risk of serious harm to the applicant in the form of inhuman and degrading treatment or punishment in his capacity as a trader subject to emergency laws in Sierra Leone.

Time

6 I do not accept the respondent's argument that the application is out of time merely because it was moved after the 28 day period. It was within time because it was filed within the 28 day period: see my decision in McCreesh v. An Bord Pleanála [2016] IEHC 394 [2016] 1 I.R. 535 [2016] 7 JIC 0804 and the reasons set out therein. (While I appreciate that Haughton J. took a different view in McDonnell v. An Bord Pleanála [2017] IEHC 366, it has yet to...