M.O. v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 03 February 2015
• Neutral Citation: [2015] IEHC 55
• Court: High Court
• Date: 03 February 2015

[2015] IEHC 55

THE HIGH COURT

[No. 1027 JR/2010]

O (M) v Refugee Appeals Tribunal & Ors

No Redaction Needed

Approved Judgment

JUDICIAL REVIEW

BETWEEN

M.O.

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S8

REFUGEE ACT 1996 S11

S (DVT) v MIN FOR JUSTICE & ORS 2008 3 IR 476

D (K)[NIGERIA] v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2013 1 IR 448 2013 IEHC 481

CANADA (AG) v WARD 1993 2 SCR 689 1993 103 DLR (4TH) 1

MANORATH v CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) 1995 FCJ 134

KRAMARENKO v REFUGGE APPEALS TRIBUNAL 2004 2 ILRM 550

R (I) v MIN FOR JUSTICE UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

O (AB) & ORS v MIN FOR JUSTICE & GARDA NATIONAL IMMIGRATION BUREAU UNREP BIRMINGHAM 27.6.2008 2008/47/10090 2008 IEHC 191

K (D) v REFUGEE APPEALS TRIBUNAL & ANOR 2006 3 IR 368

LLANAJ v REFUGEE APPEALS TRIBUNAL (SHIVNEN) & ORS UNREP FEENEY 9.2.2007 2007/35/7167 2007 IEHC 53

A (O A) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP FEENEY 9.2.2007 2007/4/605 2007 IEHC 169

ALI v MIN JUSTICE UNREP PEART 26.5.2004 2004/2/244 2004 IEHC 108

N (FR) & ORS v MIN FOR JUSTICE 2009 1 IR 88 2008 IEHC 107

Judicial Review Application – Order of Certiorari – Refugee Appeal Tribunal – Fear of Persecution – Credibility – Rape – Domestic Violence – State Protection – Internal Relocation

Facts: This case concerned a telescoped judicial review application for an order of certiorari quashing the decision of the Refugee Appeals Tribunal (RAT) that the applicant not be declared a refugee and various other ancillary reliefs. The applicant, a Nigerian national had claimed to have a well-founded fear of persecution in the form of domestic/sexual violence at the hands of a family member. The appellant sought to challenge the decision of the RAT on the basis that the adverse credibility findings were irrational on their face. In dealing with the issue of State Protection, it was submitted that the Tribunal member had selective regard to the country of origin information and failed to give any reason for preferring one agency report over those submitted by the applicant. On the issue of internal relocation it was further alleged that there was a failure to properly consider the applicant”s country of origin information and apply the appropriate criteria.

Held by Justice Noonan having regard to the seriousness of the allegations, the submissions presented and available evidence, that in respects of the State Protection submission there was no obligation on the Tribunal to set out and analyse every document submitted by the applicant. It was determined that it was not evident that the Tribunal had necessarily ignored the applicant”s country of origin information or discounted it without explaining why she was doing so. Acknowledging that the complaint appeared to be that there was a failure to take on board a sentence in one report which stated that the police do not intervene in domestic disputes, Justice Noonan was of the opinion that the Tribunal member was perfectly entitled to conclude that that statement in itself was of marginal relevance to the facts of the applicant”s case. Consequently, it was the opinion of the Court that the Tribunal member was entitled to come to the view on the evidence before her that there was no clear and convincing proof of the absence of state protection in the applicant”s case. With regard to the Tribunal member”s findings on credibility, Justice Noonan accepted the applicant”s submission that at least some of these appeared to be somewhat irrational. However, it was not regarded as evidence of perversity on the part of the member such that it tainted the entire decision. Finally on the issue of internal relocation, it was reasoned that the Tribunal member had arrived at a conclusion which was reasonably open on the evidence and thus it was determined that internal relocation was a possibility for the applicant. Accordingly, the application was dismissed.

Background Facts

1 1. The applicant in these proceedings is a Nigerian national and is married with three children now aged approximately 13, 11 and 4 years. She formerly resided in Lagos. She alleges that in 2000, she was raped by her husband's brother who was residing with them at that time. She was assaulted and injured by the same individual in 2003 during the course of an attempted rape.

2 2. She says her brother in law went away to school between 2003 and 2009 but returned to live with them in the latter year. He began to issue threats to the applicant including that he would infect her with HIV and poison her with lead. Her husband and his family were not supportive of her in relation to these events. She suggested moving to a different part of the country to her husband but he was unwilling to move. She decided to go to her cousin in another city, Jos, but her cousin was accidentally killed by a stray bullet in the course of a riot and the applicant had to return home after five days. She had no other family, being an orphan who was raised by a guardian who was by this time deceased.

3 3. The applicant had trained as a dressmaker and had her own business in Lagos. She says that following all these events she became desperate to get away and suicidal. She began expecting another child. She related her situation to one of her customers and the lady offered to help her and introduced her to a Mr. Abby, who agreed to make travel arrangements for her to leave the country for a fee. She sold her dressmaking equipment and everything she had in order to pay Mr. Abby and flee Nigeria, at this point in the final stages of her pregnancy.

4 4. She left her husband and two children and travelled by air to London and Belfast and on to Dublin by car where she arrived on the 19 ^th February, 2000. She was given a false passport by Mr. Abby. She said that she was not in contact with her husband or children since arriving in Ireland. The applicant never reported any of these events to the police in Nigeria. She gave birth to her baby shortly after arrival in the State.

5 5. The applicant applied for asylum on the day of her arrival. On the 22 ^nd February, 2010, she was interviewed by an immigration officer pursuant to s. 8 of the Refugee Act 1996 and on the 9 ^th March, 2010 she had a further interview with an officer of the Refugee Applications Commissioner pursuant to s. 11 of the Act. Her asylum application was fast tracked pursuant to a directive of the second named respondent regarding Nigerian applicants and whilst this was originally the subject matter of complaint in the applicant's statement of grounds, it is no longer being pursued.

6 6. The Commissioner's officer issued her report on the 12 ^th March, 2010 recommending refusal of the application. The applicant appealed to the first named respondent (the "RAT") and her solicitors submitted a detailed notice of appeal on the 22 ^nd April, 2010. An oral hearing of the appeal took place on the 17 ^th June, 2010 and on the 29 ^th June, 2010, the Tribunal member issued her report affirming the Commissioner's recommendation that the application be refused.

The Proceedings

7 7. The applicant instituted the within judicial review proceedings by notice of motion dated the 23 ^rd July, 2010 and the matter came before the court by way of "telescoped" hearing so that the leave and substantive applications were heard together. The applicant seeks an order of certiorari quashing the decision of the RAT and various ancillary reliefs.

8 8. The remaining grounds advanced at the trial may be broadly summarised as follows. The applicant says that the adverse credibility findings were irrational on their face. In dealing with the issue of state protection, the Tribunal member had selective regard to the country of origin information and failed to give any reason for preferring one agency report over those submitted by the applicant. On the issue of internal relocation there was a failure to properly consider the applicant's country of origin information and apply the appropriate criteria.

9 9. The statement of opposition consisted of a full traverse of the applicant's grounds.

Submissions

10 10. Mr. de Blacam SC on behalf of the applicant submitted with regard to the issue of state protection, that the applicant had referred in her notice of appeal to four country of origin reports which indicated that in Nigeria, the police do not intervene in cases of domestic violence against women and view it as a private family matter. He argued that this material established a clear failure of state protection in cases such as that of the applicant. However, the Tribunal member ignored these reports and chose instead to rely on one report only to contrary effect and also on the fact that the applicant had failed to report the matter to the police despite that she had stated that there was no point in making such a report and the country of origin information bore her out.

11 11. He relied on the judgment of Edwards J. in D. V.T.S. v. The Minister for Justice, Equality and Law Reform and Anor [2008] 3 I.R. 476 to the effect that where the country of origin information was conflicting, the decision maker must engage in a rational analysis of the conflict and justify preferring one view over the other on the basis of that analysis. He said that in this instance the conflict was not addressed at all

12 12. On the credibility findings, Mr. de Blacam was particularly critical of the Tribunal member. He said that on page 17 of the decision, she commenced her analysis by stating that a number of matters undermined the applicant's credibility. The decision maker then listed a number of facts which were said to undermine credibility but which in fact involved the...