Obuseh v Minister for Justice, Equality & law Reform & others

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M. H. CLARK
• Judgment Date: 14 January 2010
• Neutral Citation: [2010] IEHC 93
• Judgment citation (vLex): [2010] 1 JIC 1404
• Court: High Court
• Date: 14 January 2010

[2010] IEHC 93

THE HIGH COURT

[No.756 J.R/2008]

Obuseh v Min for Justice & Garda National Immigration Bureau

JUDICIAL REVIEW

BETWEEN

FRED ALIEMEKA OBUSEH

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE GARDA NATIONAL IMMIGRATION BUREAU

RESPONDENTS

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 2

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

EEC DIR 2004/83 ART 15(B)

EEC DIR 2004/83 ART 15(C)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 13(1)

EEC DIR 2004/83 ART 17

EEC DIR 2004/83 ART 7

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 7(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 13(1)(A)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 2(1)

GOODWIN-GILL & MCADAM THE REFUGEE IN INTERNATIONAL LAW 3ED 2007

EEC DIR 2004/83 ART 4(4)

EEC DIR 2004/83 ART 2(E)

T (G) v MIN FOR JUSTICE UNREP PEART 27.7.2007 2007/57/12325 2007 IEHC 287

EEC DIR 2004/83 ART 4

ELGAFAJI v STAATSSECRETARIS VAN JUSTITIE 2009 1 WLR 2100 2009 AER (EC) 651 2009 ECR I-921 2009 2 CMLR 45

D (Q) & H (A) (IRAQ) v SECRETARY OF STATE FOR THE HOME DEPT 2009 EWCA CIV 620 2010 IMM AR 132 2009 INLR 514

N (FR) & ORS v MIN FOR JUSTICE & ORS 2009 1 IR 89 2008/45/9787 2008 IEHC 107

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

EEC DIR 2004/83 ART 15(A)

H (N) & D (T) v MIN FOR JUSTICE 2008 4 IR 452 2007/27/5589 2007 IEHC 277

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4

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

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(3)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)

IMMIGRATION

Deportation

Subsidiary protection - Fear of persecution - Whether Minister failed to investigate whether there would be a âÇÿserious and individual' threat to applicant's life or person - Test to be applied in deciding whether applicant faced serious harm if deported - Credibility- International or internal armed conflict - Indiscriminate violence - Whether Minister failed to consider whether applicant at risk of serious harm from indiscriminate violence arising from internal armed conflict - Test to be applied - Country of origin information - T(G) v Minister for Justice [2007] IEHC 287 (Unrep, Peart J, 27/7/2007); N(FR) v Minister for Justice [2008] IEHC 107 (Unrep, Charleton J, 24/4/2008); B(GO) v Minister for Justice [2008] IEHC 229 (Unrep, Birmingham J, 3/6/2008); H(N) v Minister for Justice [2007] IEHC 277 (Unrep, Feeney J, 27/7/2007) considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Application refused (2008/756JR - Clark J - 14/1/2010) [2010] IEHC 93

Obuseh v Minister for Justice, Equality and Law Reform

Facts: The applicant clamed to be a national of Nigeria whose activities with the Delta Youth Movement included the murder of at least one Nigerian a soldier in 2004. The Refugee Applications Commissions found his asylum application contained major credibility issues. In 2006 he was refused a declaration of refugee status. The applicant was granted leave to review the refusal of the Minister to grant him subsidiary protection on the basis that the Minister erred in law and acted ultra vires and/ or in breach of the European Communities (Eligibility for Protection) Regulations 2006 by imposing the requirement that the applicant conclusively prove the facts relation to his application for subsidiary protection and that the Minister erred in law and in the interpretation of the protection Regulations by failing to consider whether there was a serious and individual threat to the life of the applicant.

Held by Clark J. that it appeared to the Court that the applicant had seized upon the examining officers unfortunate use of the words "conclusively proven" as representing the test which was imposed regarding the likelihood of the applicant facing serious harm if her were returned. The use of these words did not affect the heart of the decision which was that the applicant was not found credible. The applicant was not entitled to the reliefs claimed. A portion of his costs would be awarded to reflect the difficulties arising from the choice of words used.

Reporter: E.F.

1 JUDGMENT OF MS. JUSTICE M. H. CLARK, delivered on the 14th day of January, 2010

2 1. The applicant claims to be a national of Nigeria from the Niger Delta region whose activities with the Delta Youth Movement included the murder of at least one Nigerian soldier in 2004. The Refugee Applications Commissioner found that his asylum application contained major credibility issues and the Refugee Appeals Tribunal found that he was not a credible witness. In 2006 he was refused a declaration of refugee status and he has since made unsuccessful applications for leave to remain in Ireland on humanitarian grounds and for subsidiary protection. The Minister for Justice, Equality and Law Reform ("the Minister") made a deportation order against him in April, 2008.

3 2. By order dated the 9 ^th May, 2009, Cooke J. granted the applicant leave to seek judicial review of the Minister's refusal to grant him subsidiary protection, dated the 16 ^th January, 2008, on two grounds which may be summarised as:

4 a a. The Minister erred in law and / or acted ultra vires and / or in breach of the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. No. 518 of 2006) ("the Protection Regulations") by imposing the requirement that the applicant conclusively prove the facts relating to his application for subsidiary protection; and

5 b b. The Minister erred in law and in the interpretation of the Protection Regulations by failing to investigate and consider adequately or at all whether there would exist a "serious and individual threat" to the applicant's life or person within the meaning of Regulation 2 of the Protection Regulations.

6 3. The substantive hearing took place on the 11 ^th December, 2009. Mr Anthony Lowry B.L. appeared for the applicant and Mr Anthony Moore B.L. for the respondents.

Background

7 4. The background claimed by the applicant is that he was born in 1965 in Delta State, Nigeria. He arrived in Ireland in January, 2006 and applied for asylum. He said he was a member of the Ijaw tribe and a Christian. He grew up in Agbor, Delta State but after he finished secondary school in 1984 he lived in Warri where he owned a food store. He married his wife in 1993 and their son was born in 1995.

8 5. Following exposure to an incident of police heavy handedness when he was detained for two months and mistreated sustaining a broken tooth and loss of hearing, he joined the Delta Youth Movement, an armed militant group operating in Delta State. They were engaged in stealing and selling oil from the pipelines. The military was deployed to the area to prevent tampering with the oil pipelines and the youths engaged in guerrilla warfare with the army. At his s. 11 interview the applicant revealed for the first time that he himself had killed some soldiers but does not remember how many. In August or September, 2004, he went out at night with other youths, armed with a machete. He crept up on some soldiers who were asleep while guarding a pipeline; he disarmed one and killed him with a gun he had taken from the ground. He did this because he was angry at the government. Other soldiers were also killed on that night.

9 6. As a result of the killings a state of emergency was declared and on the 2 ^nd September, 2004 the federal government declared the applicant a "wanted" man although the newspapers did not mention him by name. He left Warri with his mother, brother, sister and son and moved to another town. His wife remained behind in Warri but threats were made against her and their shop was destroyed. In December, 2004 the Youth Movement organised for her to travel to Wales and the following month she gave birth to their daughter there. Meanwhile the applicant went to Lagos where he lived with friends for one year and one month before coming to Ireland via Amsterdam in January, 2006, again with the help of the Delta Youth Movement. His son remained in Delta State with the applicant's mother. The applicant was refused entry at Dublin airport because his passport contained a false visa. At the airport he gave a false date of birth and said his wife and child were with him, which he later retracted saying that the agent had told him to lie. He said that if returned to Nigeria he would be charged with murder and could face a firing squad. He then disclosed that his wife and daughter live in Wales.

10 7. The Refugee Applications Commissioner found that the applicant's account contains some major credibility flaws which were outlined in the s. 13 report. It was found that he was fleeing from punishment for a crime as opposed to persecution and it was noted that he had relocated to Lagos for over a year without being harmed. The applicant appealed to the Refugee Appeals Tribunal (RAT) and at the oral appeal hearing he repeated the account of killing the disarmed soldier. He furnished a SPIRASI report which stated that he suffers from high blood pressure and had a broken tooth and decreased hearing in his right ear which the examining physician stated "could be as a result of the ill-treatment that he reports sustaining" while imprisoned in Nigeria. Like the Commissioner, the RAT found that if the applicant's account was true, he was fleeing prosecution and not persecution, that a number of unanswered questions remained and that he did not present as a credible witness.

11 8. In May, 2006 the Minister issued a proposal to...