Ogunyemi v The Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice McGovern
• Judgment Date: 30 June 2006
• Neutral Citation: [2006] IEHC 203
• Date: 30 June 2006
• Court: High Court
• Docket Number: [No. 520 JR/2005]

[2006] IEHC 203

THE HIGH COURT

[No. 520 JR/2005]

OGUNYEMI v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE

JUDICIAL REVIEW

BETWEEN

KAYODE OGUNYEMI

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(b)

REFUGEE ACT 1996 S13

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

VNI v REFUGEE APPEALS TRIBUNAL (RAT) UNREP CLARKE 24.5.2005 (TRANSCRIPT UNAVAILABLE)

MUIA v REFUGEE APPEALS TRIBUNAL (RAT) UNREP PEART 9.12.2005 2005/40/8300 2005 IEHC 362

GASHI v MIN JUSTICE UNREP CLARKE 3.12.2004 2004/19/4277

O'KEEFFE v AN BORD PLEANALA 1993 IR 39

IMMIGRATION

Asylum

Appeal - Oral hearing - Credibility -Assessment of credibility - Whether decision of refuge appeals tribunal so irrational as to warrant grant of leave to seek judicial review - Whether substantial grounds for grant of leave to seek judicial review - Whether anxious scrutiny test to be applied - I(V) v Minister for Justice[2005] IEHC 150 (Unrep, Clarke J,10/5/2005) and Imafu v Minister for Justice [2005] IEHC 416 (Unrep, Peart J,9/12/2005) followed - Leave to seek judicial review refused (2005/520JR -McGovern J - 30/6/2006) [2006] IEHC 203 O(K) v Refugee Appeals Tribunal

Mr. Justice McGovern

1 This is an application for leave to apply for judicial review for the reliefs set out in the notice of motion herein dated 19th May, 2005. The Applicants seeksinter alia an order quashing the decision of the first named Respondent dated the 27th April, 2005, that the Applicants appeal against the recommendation of the Refugee Applications Commissioner be refused. The Applicant also seeks further ancillary orders arising out of that decision.

2 The Applicant was born on 16th June, 1967 and formally lived in Nigeria. He came to Ireland and applied for asylum in the State in January 2005. He was interviewed by an officer of the Refugee Applications Commissioner on the 21st February, 2005 and following the interview the Refugee Applications Commissioner made a report and a recommendation that the Applicant be refused recognition as a refugee. This recommendation was dated 16th March, 2005. The Applicant appealed the recommendation by notice of appeal dated 7th April, 2005 and on the 27th April, 2005, the Applicants appeal was dismissed by the Refugee Applications Commissioner. He received the decision by post on or about the 29th April, 2005. Section 5 of the Illegal Immigrants (Trafficking) Act,2000, sets out the manner in which such a decision may be challenged. The challenge has to be by way of application for leave to apply for judicial review and the application must be made within fourteen days commencing on the date on which the person was notified of the decision. In this case the plaintiff was out of time but not by very many days. He says in his grounding affidavit that due to difficulties that his legal advisors had in contacting him, he was unable to swear the affidavit grounding the application for a number of days after it had been drafted. He seeks an extension of time for bringing the application. I am satisfied that in all the circumstances the delay was minimal in this case and having regard to what is deposed in the Applicants affidavit of 19th May, 2005, I consider there is good and sufficient reason for extended the period within which the application can be made and I make that order.

3 Section 5(2)(b) of the Illegal Immigrants (Trafficking) Act,2000 states that in applications for leave to apply for judicial review in cases such as this leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed.

4 In this case the Applicant claims that he applied for asylum on the grounds of religious persecution and membership of a social group and also on the basis that he was employed in the oil industry in Nigeria and while working there was kidnapped and released subsequently due to the intervention of his employers. He says in his affidavit that if he returns to Nigeria he will be subject to a strong likelihood of kidnapping again and that he did not approach the Nigerian State Security Services due to the fact that they would not be able to offer him any effective protection against persecution.

5 One of the complaints made by the Applicant is that because he was not granted an oral hearing on his appeal he was not able to address all the issues affecting his application and thereby have his claim for asylum determined in accordance with the requirements of constitutional and natural justice. It is clear in this case that the Refugee Applications Commissioner held that the application showed either no basis or a minimal basis for the contention that the Applicant was a refugee. Once that finding was included in the report of the Commissioner the Respondent was entitled to determine the appeal without an oral hearing. See s. 13 of the Refugee Act,1996 as amended.

6 A major issue in the determination of the Applicants claim before the Refugee Appeals Tribunal was the issue of his credibility. This had also been an issue before the Refugee Applicants Commissioner. It is not for the High Court to substitute its own view on the credibility issue for that of...