Moyosola v Refugee Applications Commissioner and Others

JurisdictionIreland
JudgeMr. Justice Clarke
Judgment Date23 June 2005
Neutral Citation[2005] IEHC 218
Docket Number[No. 919 JR/2003]
CourtHigh Court
Date23 June 2005

[2005] IEHC 218

THE HIGH COURT

[No. 919 JR/2003]
[No. 920 JR/2003]
MOYOSOLA v REFUGEE APPLICATIONS COMMISSIONER & ORS
IN THE MATTER OF THE REFUGEE ACT 1996, THE IMMIGRATION ACT 1999, THE ILLEGAL IMMIGRANTS (TRAFFICKING) 2000 AND BUNREACHT NA HEIREANN

BETWEEN

SOLOMON OLUGBADE MOYOSOLA
APPLICANT

AND

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

AND

IN THE MATTER OF THE REFUGEE ACT 1996, THE IMMIGRATION ACT 1999, THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 AND BUNREACHT NA HEIREANN

BETWEEN

ADETOUN MOYOSOLA AND SUZAN MOYOSOLA (A MINOR) SUING THROUGH HER NEXT FRIEND AND MOTHER ADETOUN MOYOSOLA
APPLICANTS

AND

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

REFUGEE ACT 1996 S11(2)

REFUGEE ACT 1996 S13REFUGEE ACT 1996 S13(6)

UNIVERSAL DECLARATION OF HUMAN RIGHTS ART 5

INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 7

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

REFUGEE ACT 1996 S11(3)

REFUGEE ACT 1996 S11(6)

IMMIGRATION ACT 2003 S7

REFUGEE ACT 1996 S11(3)(a)

REFUGEE ACT 1996 S11(3)(b)

REFUGEE ACT 1996 S13(10)

REFUGEE ACT 1996 S13(5)

NGUEDJDO v REFUGEE APPLICATIONS COMMISSIONER UNREP WHITE J 23.7.2003 (EX-TEMPORE)

IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HIGH COURT CLARKE 10.5.2005 2005 IEHC 150 2005/31/6357

HAUGHEY, IN RE 1971 IR 217

REFUGEE ACT 1996 S13(6)(d)

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION)

IMMIGRATION

Asylum

Fair procedures - Finding of minimal or no basis for claiming refugee status - Failure by respondent to disclose material upon which decision based - Applicant only entitled to appeal without oral hearing - Whether applicant deprived of effective right of appeal - Refugee Act 1996 (No 17), ss 11 and 13 - Illegal Immigrants (Trafficking) Act 2000 (No 29) - Immigration Act 2003 (No 26), s 7 - Certiorari granted (2003/919JR & 920JR - Clarke J - 23/6/2005) [2005] IEHC 218

M (SO) v Refugee Applications Commissioner

Facts: The applicants in both sets of proceedings were Nigerian nationals whose applications for refugee status were refused by the Refugee Applications Commissioner (RAC). The respective reports of the RAC contained a finding under s. 13(6)(a) of the Refugee Act, 1996 as inserted by s. 7 of the Immigration Act, 2003 to the effect that in the view of the RAC the application showed either no basis or a minimal basis for the contention that the applicant was a refugee and accordingly any appeal to the Refugee Appeals Tribunal would be determined without an oral hearing. The report regarding each applicant made adverse findings as to the credibility of the applicants, by reference to inconsistencies between the accounts of the respective applicants and details contained in country of origin information. The main ground for the applicants’ applications for judicial review was based on the fact that they were not supplied with the relevant country of origin information and they contended that the statutory regime failed to comply with the principles of constitutional justice.

Held by Clarke J. in quashing the decision of the RAC: That the procedures followed by the RAC in the present case were in breach of the fundamental principle that a person is entitled to know the case against them. The applicants having being deprived of the opportunity of an oral hearing on appeal should have been given the opportunity to deal with any matters which might have influenced the adverse credibility finding made by the RAC.

Reporter: L.O’S.

Mr. Justice Clarke
1

Both of these proceedings are connected and were argued together. In the first proceedings the applicant ("Solomon Moyosola") is a national of Nigeria. He has deposed to the fact that he arrived in the State on 17th June, 2003 and made application on the following day for refugee status. The stated basis for his application was as set out in response to questions 26 in the "Information Questionnaire for Refugee Status Application" which Solomon Moyosla filled out and which specified the basis for his application. His reason was stated as follows:-

"The main reason why I fled my country (Nigeria) with my family to seek declaration as a refugee in the State is that my life was in danger and at the point of elimination in my home country. I was being persecuted simply for my religious belief. My family belonged to an occult society which is devilish. I tried to stand out from the family due to my education which broadened my knowledge to choose the right way of life. There are many family traditions which I never accepted and being the only surviving son of my father they tried to initiate me to the devilish occultism which I rejected."

2

In specifying the type of prosecution feared Solomon Moyosola answered as follows:-

"My family's life is in danger. The first tradition I rejected before my father died was the female circumcision of female in the occult shrine. The blood is used for ritual. I declined this and stand on it, though my wife was threatened to be killed and my children if I refused to comply with the family traditions. Secondly being the only surviving child in my family they want me to be the sole representative of my family since my father was one of them. They threatened to kill me and my offspring if I eventually refused to be in the family tradition way of life. I believe my religion made me see light from darkness but the group one so powerful that I fear persecution."

3

Solomon Moyosola attended for interview with an authorised officer of the Refugee Appeals Commissioner ("RAC") as required by s. 11(2) of the Refugee Act,1996 ("the 1996 Act"). Following the interview it would appear that he received no further communication or correspondence from the RAC until the 5th November, 2003 when he received a letter on that date from the RAC confirming the recommendation that he should not be declared a refugee.

4

In the second proceedings the first named applicant ("Adetoun Moyosola") is also a national of Nigeria. She is the wife of Solomon Moyosola and deposes to the fact that she arrived in this State on 28th February, 2003 with her daughter the second named applicant in the second proceedings ("Suzan"). On the same date she made an application for refugee status and similarly completed and submitted a questionnaire on 12th March, 2003. In her questionnaire she stated that she feared persecution "because they said they will kill me with the pregnancy". In subsequent questions she makes it clear that the relevant fear relates to persecution by her husband's family. She too attended for interview, as required by s. 11(2) of the 1996 Act, with an authorised officer of the RAC on 3rd October. In the course of that interview, she indicated that the reason why she fled Nigeria was by reason of the fact that her husband's family sought to impose and apply ritual tribal cults and traditions to her and her family which she did not accept either as a mother or a Christian. She specified that the fear that her daughter would be subjected to female genital mutilation was a primary basis for her fears.

5

She too received no further communication from the RAC until (in her case) the 11th November, 2003 when she received a letter of that date advising of the recommendation that she should not be declared a refugee.

6

In both cases (that is to say Solomon Moyosola and Adetoun Moyosola) the respective letters informing them that the recommendation of the RAC was to the effect that in each case the applicant should not be declared to be a refugee included a copy of the report required by s. 13 of the Refugee Act1996 and also enclosed a copy of "all information relating to the investigation of your application which has been submitted to the Commissioner or otherwise came to her notice in the course of investigating your claim".

7

In both cases the letter also drew attention to the fact that, amongst the findings contained in the s. 13 report, is "one of the findings set out in s. 13(6) of the Refugee Act. For this reason, if you appeal against this recommendation you must do so within 10 working days from the sending of this letter and, any such appeal will be dealt with without an oral hearing".

8

I should not leave the s. 13 reports without noting that the RAC correctly referred to Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights. It is implicit that the RAC found that the above support the view that a fear of torture amounts to a fear of persecution and that a well founded fear of female genital mutilation does, subject to the other normal considerations such as state protection and the like, form the basis of a proper refugee claim. I did not understand the respondents to suggest otherwise. It is clear that in a case where there is a well founded fear of either an applicant or a child of an applicant being subjected to female genital mutilation, same will provide, subject to other normal considerations, a basis for a finding in favour of refugee status. This case was not, therefore, about whether a well founded fear of such mutilation is a proper basis for granting refugee status. It is about whether, on the basis of the appropriate criteria and procedures for the consideration of refugee applications, it can be said that the applicants in this case have such a well founded fear.

9

Suzan's claim was treated as part of the claim of Adetoun Moyosola. The Section 13 Report in the case of Adetoun Moyosola would also appear to apply to her case. There is no separate or independent reference to her situation in...

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