O (N) v Refugee Appeals Tribunal & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 02 October 2014
• Neutral Citation: [2014] IEHC 509
• Court: High Court
• Date: 02 October 2014

[2014] IEHC 509

THE HIGH COURT

[No. 1524 J.R./2010]

O (N) v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, SECTION 5 AND

IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED)

BETWEEN

N. O.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11B(B)

T (F) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP MAC EOCHAIDH 18.4.2013 2013/49/13971 2013 IEHC 167

REFUGEE ACT 1996 S11B(C)

REFUGEE ACT 1996 S8

A (S) [SYRIA] v REFUGEE APPEALS TRIBUNAL (O'GORMAN) & ORS UNREP MCDERMOTT 12.4.2013 2013/1/245 2013 IEHC 277

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

BARUA v MINISTER FOR JUSTICE UNREP MAC EOCHAIDH 9.11.2012 2012/4/884 2012 IEHC 456

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5

D-N (E) & ORS v MIN FOR JUSTICE UNREP MAC EOCHAIDH 20.9.2013 2013/12/3493 2013 IEHC 447

A (OA) v MIN FOR JUSTICE UNREP FEENEY 9.2.2007 2007/4/605 2007 IEHC 169

A (SI) [SUDAN] v REFUGEE APPEALS TRIBUNAL (BRENNAN) & ORS UNREP CLARK 2012/1/123 2012 IEHC 488

M (WM) v REFUGEE APPEALS TRIBUNAL (O'GORMAN) & MIN FOR JUSTICE UNREP CLARK 23.4.2010 2010/39/9764 2010 IEHC 171

CANADA (AG) v WARD 1993 2 SCR 689 1997 INLR 42 1993 103 DLR (4TH) 1

B (GO) v MIN FOR JUSTICE UNREP BIRMINGHAM 3.6.2008 2008/2/390 2008 IEHC 229

O v MIN FOR JUSTICE & ORS [BABY O CASE] 2002 2 IR 169 2003 1 ILRM 241 2002/3/501 2002 IESC 44

K (D) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2006 3 IR 368 2006/33/6983 2006 IEHC 132

D (K) [NIGERIA] v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP CLARK 1.11.2013 2013/12/3517 2013 IEHC 481

O (T) v REFUGEE APPEALS TRIBUNAL (NOLAN) & MIN FOR JUSTICE UNREP MAC EOCHAIDH 10.5.2013 2013/40/11811 2013 IEHC 258

Certiorari – Extension of Time – Practice and Procedures – Persecution – Credibility – Refugee Act 1996 – State Protection – Decision-Making – Persecution

Facts: In the case at hand, the applicant, an Nigeria national, sought certiorari by way of an application for judicial review to quash the decision of the first named respondent (hereinafter referred to as ‘ RAT’) not to grant the applicant refugee status dated 18th October, 2010. The applicant also sought by way of consequential relief, an order of certiorari of the proposal to make a deportation order in respect of him. An extension of time to bring proceedings was also sought. The applicant alleged that he had married a woman who was to be the subject of a forced marriage to a man named Alhaji Musa Abu. He alleged that they were persecuted by Mr Abu and that when there were attacked and burned out of their home they were forced to go to the police. It was alleged that this only intensified the situation. Following the acts of violence perpetrated against the applicant and his wife and a miscarriage she suffered, the couple separated and his wife went to live with her uncle in January 2007. The applicant moved to Lagos at that time and he lived there until September 2007 when he alleged an attempt on his life was made. The applicant learned that his wife was living in Ireland and he travelled here on 31st October, 2008 and applied for asylum. Both the ORAC and RAT recommended that the applicant should not be declared a refugee. The RAT had found the applicable to lack credibility. It was stated that the applicant had failed to provide a reasonable explanation to substantiate his claim that Ireland was the first safe country in which the applicant had arrived since his departure from his country of origin and that he had failed to provide a full and true explanation of how he travelled to and arrived in the State. The applicant submitted that the RAT acted ultra vires in applying s. 11B(b) of the 1996 Act and acted irrationally in taking account of an irrelevant consideration in the determination of his appeal. The applicant further submitted that the RAT further rejected his credibility on the basis that Mr. Abu”s failure to kill the applicant despite opportunities to do so, had not been explained to the satisfaction of the RAT. Thus it was submitted that the RAT decision failed to assess, adequately or at all the credibility of the applicant and thereby acted irrationally and/or disproportionately, or ultra vires or in breach of constitutional justice. It was further reasoned by the RAT that State Protection was available.

Held by Justice Barr that he was satisfied that the applicant decided within the relevant period that he wished to seek judicial review of the RAT decision. He acted promptly and a case was prepared for counsel without delay. While there was some delay on the part of counsel in returning the papers to the solicitor, the period could not be seen as being unduly long. In the circumstances, the Court was satisfied that there was good and sufficient reason for allowing the extension of time sought. Accordingly, Justice Barr extended the time for institution of proceedings. In respects of the credibility issue, it was reasoned by the Court that as the applicant had not expressly stated that he regarded Ireland as the first safe State in which he arrived after leaving Nigeria, the credibility finding of the RAT in that instance could not stand. In light of all submissions presented, the Court further determined that all the adverse credibility findings could not be sustained. It was reasoned that the applicant had been consistent in his travel arrangements and that the RAT had failed to address the applicant”s evidence that he had been subjected to incidents of serious harm by the henchmen of Mr. Abu. According to Justice Barr, he was satisfied that the RAT did not carry out any comprehensive examination of the applicant”s credibility and in the circumstances the findings on credibility were struck down. In respects of the State Protection argument, Justice Barr in light of the evidence presented reasoned that the RAT was entitled to hold that in the circumstances outlined, there was adequate State protection available to the applicant in Nigeria and on that basis, he was not to be regarded as a refugee. The Court was satisfied that that finding was open to the Tribunal Member. The applicant had failed to rebut the presumption that absent clear and convincing proof to the contrary, a State was to be presumed capable of protecting its citizens. Accordingly, Justice Barr refused to quash the findings of the RAT on the issue of State protection. The applicant”s application for an order of certiorari striking down the decision of the RAT dated 28th September, 2010, was refused.

Introduction

1 1. In this application, the applicant seeks certiorari by way of an application for judicial review to quash the decision of the first named respondent (hereinafter referred to as "RAT") not to grant the applicant refugee status dated 18 ^th October, 2010.

2 2. In the event that the applicant succeeds in securing this relief, the applicant also seeks by way of consequential relief, an order of certiorari of the proposal to make a deportation order in respect of the applicant.

3 3. The applicant also seeks an extension of time within which to bring the within proceedings.

Extension of Time

4 4. The applicant received the RAT decision on 18 ^th October, 2010 and immediately contacted his solicitor and arranged to meet him. The applicant informed his solicitor that he wished to challenge the validity of the said order and the file was sent to counsel for his opinion under cover of letter dated 21 ^st October, 2010. Further instructions relating to the applicant's case was sought and was provided on 12 ^th November, 2010. The pleadings were settled and returned to the applicant's solicitor on 29 ^th November, 2010. Due to the inclement weather prevailing at the time, the applicant was unable to travel to Tullamore to finalise the pleadings until 7 ^th December, 2010. The proceedings were instituted on 8 ^th December, 2010.

5 5. There is no replying affidavit on this aspect. In the circumstances, no case has been made that the respondents would be prejudiced by the extension of time sought.

6 6. I am satisfied that the applicant decided within the relevant period that he wished to seek judicial review of the RAT decision. He acted promptly in going to see his solicitor and a case was prepared for counsel without delay. While there was some delay on the part of counsel in returning the papers to the solicitor, the period cannot be seen as being unduly long, given the demands placed on a busy junior at that time of year.

7 7. The applicant has stated that due to the inclement weather prevailing at the time, he was unable to travel to Tullamore to finalise the proceedings until 7 ^th December, 2010. The proceedings were issued on the following day. In the circumstances, I am satisfied that there is good and sufficient reason for allowing the extension of time sought in this case. Accordingly, I will extend the time for institution of the within proceedings up to and including 8 ^th December, 2010.

Background

8 8. The applicant is a national of Nigeria, a member of the Edo tribe and a Christian. He met his wife, I.O., as a university student in 1999. He began to experience problems in 2005 when Itohan was told that she could no longer associate with him because she has been promised, by way of a forced marriage, to a man named Alhaji Musa Abu, who had paid a price to her father. Itohan is Christian and Mr. Abu is Muslim.

9 9. In May 2006, the applicant was kidnapped by Mr. Abu and his associates. Mr. Abu told the applicant to leave his then girlfriend and he offered him a bribe to do so. Mr. Abu warned the applicant that he would kill him if he...