Ogunlade and Others v Refugee Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gilligan |
| Judgment Date | 29 July 2005 |
| Neutral Citation | [2005] IEHC 270 |
| Court | High Court |
| Docket Number | [No. 573 JR/2004] |
| Date | 29 July 2005 |
[2005] IEHC 270
THE HIGH COURT
BETWEEN
AND
REFUGEE ACT 1996 S17(1)(b)
REFUGEE ACT 1996 S2REFUGEE ACT 1996 S13(6)(a)
UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951 ART 1(A)(2)
BUJARI v MIN FOR JUSTICE UNREP HIGH 7.5.2003 2003/7/1414
DA SILVEIRA v REFUGEE APPEALS TRIBUNAL UNREP HIGH PEART 9.7.2004 (EX TEMPORE)
ZHUCHKOVA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 26.11.2004 2004/51/11705
NGUEDJDO v REFUGEE APPLICATIONS COMMISSIONER UNREP WHITE J 23.7.2003 (EX-TEMPORE)
UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992
IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HIGH COURT CLARKE 10.5.2005 2005 IEHC 150 2005/31/6357
O (A) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP PEART 26.5.2004 2004/36/8429
KUTHYAR v MIN IMMIGRATION & MULTICULTURAL AFFAIRS 2000 FCA 110
IMMIGRATION
Asylum
Judicial review - Application for leave -Assessment of credibility of applicant -Circumstances in which oral hearing should be held - Relevance of medical conditions to determining refugee status - Whether manner in which applicant's credibility assessed falls within remit of judicial review - Whether in depth investigatory process must be carried out by respondent prior to deciding on application for asylum - Leave granted (2004/573JR - Gilligan J - 29/7/2005) [2005] IEHC 270
OGUNLADE & ORS v REFUGEE APPEALS TRIBUNAL (NICHOLSON) & MIN FOR JUSTICE
Facts: The applicants failed to be deemed refugees by the Refugee Appeals Commission as they failed to establish a well founded fear of persecution as defined under section 2 of the Act. This was confirmed by the Refugee Appeals Tribunal without convening an oral hearing. The applicants sought Judicial Review of that decision.
Held by Gilligan J in granting the application for judicial review:
1. The Refugee Appeals Tribunal should have conducted an interview with the applicants. Idiakheua v R.A.T. (High Court 10 May 2005) (FL 10907) followed.
2. There was an arguable case that fair procedures were not adhered to in assessing the merits of the applicants’ case.
A.O.
v
R.A.T
(High Court 26 May 2004) (FL 9663); Kuthyar v Minister for Immigration and Multicultural Affair [2000] FCA 110 referred to.
Reporter: BDD
The applicants bring these proceedings seeking leave to apply for judicial review for the following reliefs:
(a) A declaration that the decision of the first named respondent of 9th June, 2004, denying the applicants refugee status, and the recommendation of the Tribunal Member of the 28th May, 2004, areultra vires, and without efficacy and were reached in infringement of the applicant's rights to constitutional and natural justice and fair procedures.
(b) An order of certiorari quashing the decision, of the first named respondent of 9th June, 2004, refusing the applicants refugee status and the recommendation of the Tribunal Member of the 28th May, 2004
(c) An order of mandamus directing that the applicant's claim for refugee status be remitted for hearing by the Refugee Appeals Tribunal as directed by this court.
(d) An injunction restraining the second named respondent from taking any steps pursuant to s. 17(1)(b) of the Refugee Act1996 to affirm the decision to deny the applicants refugee status and/or make a proposal to deport and/or to deport the applicants.
(e) Further and other relief including if necessary an extension of time for the making of this application or any part thereof.
(f) Costs.
The applicants are a female citizen of Nigeria, Gladys Ayoka Ogunlade, born on 14th November, 1977, her two twin daughters, Simmiat and Sammiat, born on 9th October, 2001, and her sister Adeola, born on 22nd January, 1987.
The first named applicant arrived in Ireland on 7th July, 2003, with her two children and her sister. Her sister was just over sixteen and half years old when she arrived in Ireland. The first named applicant has acknowledged that she would act as her sister's guardian in the asylum process. Shortly after her arrival, the applicant submitted an application for refugee status which was received by the Office of the Refugee Applications Commissioner on the 19th July, 2003. The applicant completed a form acknowledging that she wished to have her children and her sister included under her application for asylum rather than be interviewed separately.
The first named applicant has stated that one of her daughters suffers from sickle cell disease. Medical reports provided by the applicant confirm this, to be the position and outline the nature of the disease and its high prevalence rate in Africa. Evidence has been provided by the applicant that 20% of children in Africa will die of sickle cell related complications before the age of 5 years. The report from Dr. McMahon, consultant haematologist in Our Lady's Hospital for Sick Children, Crumlin concludes that if the applicant's daughter returns to Africa she will probably die.
The first named applicant is a Christian of the Yoruba ethnic group. She claims that the fact that her daughters were affected with this disease has caused them to be stigmatised in the Yoruba tradition. It is claimed by the applicant that her in laws wish to subject her children to female genital mutilation against her will.
She claims that she had to flee Nigeria by reason of a fear of persecution on the grounds of her ethnicity and her objection to female genital mutilation (FGM). It is also claimed by the applicant that her in laws had threatened to harm her daughter.
The applicants claim that they have a well founded fear of persecution.
The Refugee Applications Commission recommended that the applicants should not be declared to be refugees on the basis that the applicant had failed to establish a well founded fear of persecution as defined under s. 2 of the Refugee Act,1996 as amended. Further the Commissioner was satisfied that s. 13(6)(a) applied in this case on the basis that the applicant had showed either no basis or minimal basis for the contention that she is a refugee.
In these circumstances the applicants appeal was dealt with by the Refugee Appeals Tribunal's member without an oral hearing and in his decision as dated 28th May, 2004, he found that the applicant was not a refugee within the meaning of s. 2 of the Refugee Act,1996 as amended and affirmed the recommendation made by the Refugee Applications Commissioner and dismissed the appeal.
The Refugee Appeals Tribunal member outlined his decision in the following terms:-
"Having had regard to all the relevant facts and considered in detail the applicants answers given in her questionnaire her replies at interview, and taking into consideration the submissions made on her behalf by her solicitors, I am not satisfied that the applicant has been subjected to persecution for any reason contemplated by Section 2 of the Refugee Act,1996 (as amended), while she lived in Nigeria, for the following reasons:"
1. I find the applicant's evidence that she feared her daughters would be circumcised, given that the applicant opposed this procedure, does not amount to persecution;
2. I find the applicant's evidence that her husband had a car accident, as a result of ju ju charms, to lack credibility;
3. I find that applicant's evidence that one of her children was to be sacrificed in a ritual to lack credibility, and to be contrary to country of origin information. The applicant's contention that her daughter would be sacrificed is contrary to country of origin information (The New Encyclopaedia Britannia for the Isoko People in March 1999);
4. Given that the applicant, and her husband, did not reside with his father, I find her contention that her children could be circumcised unknowingly and against their will, to be impossible;
5. I find that applicant's evidence that the police would not interfere because they did see her father-in-law attempting to kidnap her children, given that there were passers who witness the incident, and helped her, to lack credibility;
6. I find the contradictory evidence given by the applicant in relation to reporting the matter to the police, on one occasion she...
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