Okedairo v Refugee Appeals Tribunal and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice John McMenamin |
| Judgment Date | 28 July 2005 |
| Neutral Citation | [2005] IEHC 470 |
| Docket Number | [No: 531/JR/2004] |
| Court | High Court |
| Date | 28 July 2005 |
[2005] IEHC 470
THE HIGH COURT
BETWEEN
AND
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(B)
MCNAMARA v AN BORD PLEANALA (NO 1) 1995 2 ILRM 125
REFUGEE ACT 1996 S2
REFUGEE ACT 1996 S16(2)
REFUGEE ACT 1996 S13(1)
REFUGEE ACT 1996 S16(8)
IN THE MATTER OF ART 26 OF THE CONSTITUTION & S5 & S10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 2000 2 IR 360
MCFADDEN, STATE v GOVERNOR MOUNTJOY PRISON (NO 1) 1981 ILRM 113
IMMIGRATION ACT 1999
KARANAKARAN v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2000 3 ALL ER 449
MACHARIA v IMMIGRATION APPEALS TRIBUNAL 2000 INLR 267USELIS v ORAC UNREP GILLIGAN 29.4.2005
REFUGEE ACT 1996 S13(6)(A)
REFUGEE ACT 1996 S13(5)
REFUGEE ACT 1996 S13(6)
MURESAN v MIN JUSTICE 2004 2 ILRM 364
REFUGEE ACT 1996 S5
REFUGEE ACT 1996 S11(B)
CAMARA v MIN JUSTICE UNREP KELLY 26.7.2000 2000/4/1247
KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642
WADE & FORSYTH ADMINISTRATIVE LAW (1994) 311
O'KEEFFE v AN BORD PLEANALA 1993 IR 39
OSAYANDE & LOBE v MIN JUSTICE 2003 1 IR 1
IMMIGRATION
judicial review
Application for leave - Asylum - Substantial grounds - Unreasonableness - Credibility - Whether failure to disclose relevant information - Whether decision irrational - Standard of review - McNamara v An Bord Pleanála (No 1) [1995] 2 ILRM 125; Camara v Minister for Justice (Unrep, HC, Kelly J, 26/7/2000); Macharia v Immigration Appeals Tribunal [2000] INLR 267; Osayande v Minister for Justice [2003] IR 1; VU v Refugee Applications Commissioner [2005] IEHC 146, [2005] 2 IR 537 and Muresan v Minister for Justice [2004] 2 ILRM 364 considered - Refugee Act 1996 (No 17), ss 2, 11(b), 13, 16; Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(2)(b) - Leave refused (2004/531JR - MacMenamin J - 28/7/2005) [2005] IEHC 470
OKEDAIRO v REFUGEE APPEALS TRIBUNAL (CRONIN) & MIN FOR JUSTICE
Facts: in prior judicial review proceedings the respondent agreed to re-examine the applicant's appeal against the recommendation of the Refugee Applications Commissioner that she not be declared a refugee. On re-examination, the respondent again refused the applicant's appeal. The applicant made six essential complaints concerning the respondent's decision to refuse her appeal. They were that: (1) she had been denied fair procedures in that the respondent had failed to disclose country of origin information which was referred to in the impugned decision; (2) a quotation from country of origin was inaccurately and incompletely extracted from the document as a whole and thereby taken out of context; (3) the respondent failed to invite or allow the applicant make fresh representations in respect of the appeal; (4) the respondent's assessment of the applicant's credibility was erroneous; and (5) the respondent erred in finding that the applicant could have relocated elsewhere in Nigeria.
Held by Mr Justice MacMenamin in refusing the applicant leave to apply for judicial review that there was an obligation upon the respondent to disclose relevant or material documentation upon which she proposed to rely and from which conclusions adverse to the applicant could be drawn. As the country of origin information relied upon by the respondent was not adverse to the applicant no breach of fair procedures occurred in that respect.
(2) That quotations from country of origin information should, where appropriate, be made fully without exclusions. On the facts of the case however, the quotation from the information in question was not prejudicial to the applicant.
(3) That, as the applicant had not pointed to any change of circumstances which would have necessitated as a matter of fair procedures the lodging of fresh grounds of appeal or submissions, the failure of the respondent to invite or allow same did not breach the applicant's right to have her appeal determined in accordance with fair procedures.
(4) That, as the respondent's assessment of the applicant's credibility and the question of internal relocation were made only after she had already found that the applicant had not met the statutory definition of refugee, the applicant's complaints in these respects were not germane.
Reporter: P.C.
The applicant is these proceedings seeks leave to apply for an order ofcertiorari of the decision of the first named respondent made on the 27th May, 2004, to affirm the decision of the Refugee Applications Commissioner not to recommend that the applicant be granted a declaration of refugee status, together with a number of various ancillary reliefs.
The Statement of Grounds sets forth sixteen areas of complaint. However, the applicant has confined herself to six essential complaints in the course of the oral submissions made on her behalf.
Under s. 5(2)(b) of the Illegal Immigrants (Trafficking) Act, the applicant must establish that there are substantial grounds for leave. In assessing this claim the court will adopt the test set out by Carroll J. inMcNamara v. An Bord Pleanála (No. 1) [1995] which sets out the test that the applicant must meet. The grounds must be "reasonable", "arguable" and weighty. The grounds must not be frivolous or tenuous.
A substantial number of the facts of this case are not in issue.
The applicant states that she was born in Nigeria in 1966 and was a member of the Yoruba tribe. She states she is a Christian and was educated to “O” level standard at high school. She states that she was married to an old man who was the chief of the area in which she lived. In the course of information provided to the respondent she states that she married this man in 1989, at which point she would have been approximately 23 years, having been born on 13th February, 1966. On the basis of the information supplied to the respondents she states that it was a traditional marriage but that she (the applicant) was forced to marry him because of his position as the chief priest of the village. She states it was her parents” decision. At the time she was living in a village called Sagamu in Ogun state in Nigeria.
The applicant further states that her husband had many wives. She says that she herself met a teenaged boyfriend when she was in school and they began to meet. She stated that she continued her affair with this boy for about ten years and became pregnant. She said that her husband did not realise that he was not the father of her child. While he was suspicious when she became pregnant on the second occasion, she states that she was confronted by her husband and she denied any relationship with her partner. The applicant states that when she had a third child a member of her husband's family told him in front of her that the baby was not his.
The applicant states that her husband used juju to make her swear and take an oath as to whether the baby was his or not and the applicant said she knew she would die if she took this oath so she refused to do so. She said the man told her parents that he was going to kill her so she had to run away. No evidence was adduced of any assault upon her. However, she states that she ran away to Lagos in February, 2003 and remained there for about two weeks.
During the course of her interview the applicant states that her husband found out about the affair in October, 2002. However, it will be seen that she did not leave Nigeria until February, 2003 and thereafter claimed refugee status in this country on 4th March of that year.
She stated in interview that the elapse of time between October, 2002 and February, 2003 was accountable to the fact that she denied what had occurred for a while but ultimately ran away to a friend's house and, when her husband found out that she was there, her friend told her that her husband's people were coming for her and she had to leave for Lagos because her friend would have been in trouble.
The applicant stated that her husband was the chief of the village and would have had the power to do what he liked. She said that she stayed with her partner or boyfriend in Lagos and he in turn introduced her to a woman who brought her to Ireland. She stated that her boyfriend was a banker and he discovered that her husband and his entourage were en route to catch her so he organised her travel to Ireland.
The applicant stated that she knew her husband was planning to kill her because he was still looking for her when she went to Lagos and he had told her parents that he would still be looking for her ten years on.
In the light of its importance to the applicant's submission it is as well to quote the next finding of the Tribunal in full:
"She was asked if she reported her problems to the police and she said she did at the time, when he was trying to force her to take an oath and the police went to her parents” house and they took a statement but there was nothing else they could do except watch her husband for a while. She said that if anybody offended her husband they would be killed and she had heard of people being killed previously. She said she could not move to any other part of Nigeria because Nigeria was not a safe place."
The applicant had informed the Tribunal that prior to her marriage in 1989 she had had a baby in Lagos in 1988. She then returned to her home town and then realised her parents wanted her to marry this old man who was the chief priest, so she ran away and went to live in Lagos again for a further year. She then became pregnant again by a different man....
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