Olatunji v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 07 April 2006
• Neutral Citation: [2006] IEHC 113
• Docket Number: [1187 J.R./2004]
• Court: High Court
• Date: 07 April 2006

[2006] IEHC 113

THE HIGH COURT

[1187 J.R./2004]

OLATUNJI v REFUGEE APPEALS TRIBUNAL (TAIT) & MIN FOR JUSTICE

JUDICIAL REVIEW

BETWEEN/

SOLA OLATUNJI

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL (TRIBUNAL MEMBER: ANNE TAIT) AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S11(2)

REFUGEE ACT 1996 S13(1)

AG v WARD 1993 2 SCR 689

KRAMARENKO v RAT 2004 2 ILRM 550

REFUGEE ACT 1996 S16(8)

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

REFUGEE ACT 1996 (APPEALS) REGS 2003 SI 424/2003 PAR 5

IMMIGRATION

Asylum

Refugee status - Refusal - Credibility of applicant - Fair procedures - Whether tribunal obliged to put matters likely to support adverse decision to applicant in order to enable applicant to comment - Disclosure of information to applicant by tribunal - Fair procedures - Whether disclosure obligation breached by tribunal - I(V) v Minister for Justice, Equality and Law Reform [2005] IEHC 150 (Unrep, Clarke J, 10/5/2005)followed - Whether previous tribunal decision in relation to asylum application of family member created presumption of refugee status in favour of applicant - Refugee Act1996 (No 17), s 16(8) - Certiorari granted (2004/1187JR - Finlay Geoghegan J -7/4/2006) [2006] IEHC 113 O(S) v Refugee Appeals Tribunal

: The applicant Nigerian National sought to quash the findings of the respondent on the grounds that it had failed to put to the applicant a conclusion that she had left her province of her own volition and that the Tribunal failed to disclose country of origin information relied upon by the Tribunal. The applicant also alleged that factual errors were contained in the decision and that the Tribunal failed to consider family reunification.

Held by Finlay Geoghegan J. in granting certiorari as to the failure to put relevant information to the applicant, that the matters complained of went to credibility and as credibility was centrally at issue in the report of the Tribunal, the relief sought in this regard would be granted.

Reporter: E.F.

Ms. Justice Finlay Geoghegan

1 The applicant is Nigerian. She was born on 16th November, 1977. She is a Christian and of Yoruba ethnicity. Up to 1998 she lived with her father, mother and three brothers in Ibadan. Her father died in 1998. He appears to have been a businessman and considered wealthy. He left his property to the applicant's mother, who was his senior wife, and two other junior wives. Under the customary law, the father's family sought to appropriate his estates to the detriment of his wives and their children. By tradition, the wives were to be married to the deceased's brothers. One of the younger wives died and the other is stated to have gone mad and the applicant believes that this happened through the medium of magic and/or the use of Yoruba cursing.

2 The applicant's mother was to be married to her deceased husband's younger brother. She did not consent to the forced marriage and fled the house and ultimately came to Ireland, arriving on 15th October, 1998. She applied for asylum in Ireland and ultimately, by a decision of 25th October, 2000, by the Refugee Appeals Authority, it was recommended that she be granted asylum. She has been granted asylum in Ireland.

3 In the meantime, the applicant also left her deceased father's home and went to live with one of her father's brothers. He sent her back to the father's home and to the father's brothers living there. She remained there from 1998 to 2000, being looked after and supported by the dead father's brothers. In 2000, she states that they wanted to sell her father's home and attempted to force her to marry an old man of about 60 years. She did not wish to do this and upon refusing, her paternal uncles started to threaten her and she feared she would be killed. She states that she then left and went to her boyfriend's house in Lagos. She had known the boyfriend since secondary school. She was supported by her boyfriend in Lagos and initially, she states the relationship was all right. She then became pregnant and miscarried. Subsequently she became pregnant again and miscarried for a second time. Following the second miscarriage, she alleges that her boyfriend became abusive towards her. She also states that a man used to come to visit her boyfriend and give him a dried herb to take. The applicant overheard them talking and believed that she was going to be involved in rituals and was to be offered as a human sacrifice. She then left and went to a church for refuge and states that she met a friend of her deceased father's who helped her and arranged through an agent to get her out of Nigeria. With the assistance of the agent she travelled to Ireland via Germany. She arrived in Ireland on 15th November, 2002, and made an application for a declaration of refugee status. Thereafter in normal course she completed a Form ASY/1 and was interviewed by the Office of the Refugee Applications Commissioner on 15th April, 2003. In June, 2003 she received a copy of the reports and results of investigation pursuant to ss. 11(2) and 13(1) of the Refugee Act,1996 from the Office of the Refugee Applications Commissioner in which it was recommended that her application for a declaration of refugee status be refused. She then appealed to the Refugee Appeals Tribunal. Her appeal was initially listed for hearing for 18th September, 2003. At the commencement of that hearing, counsel on her behalf sought a copy of the decision recommending that her mother, Grace Olatunji, be granted refugee status in the State. The hearing was adjourned to allow the Tribunal consider the request. The Tribunal subsequently refused to release or disclose to the applicant or her legal advisers the decision recommending that her mother be granted a declaration of refugee status. Judicial review proceedings were commenced and compromised on the basis of the release of the decision in her mother's case.

4 An oral hearing was held in the applicant's appeal on 21st October, 2004, and by letter of 26th November, 2004, she was furnished with a decision of the Tribunal Member dated 10th November, 2004, rejecting her appeal and affirming the recommendation of the Refugee Appeals Commissioner.

5 Leave to issue judicial review was sought by notice of motion dated 20th December, 2004. By order of 18th April, 2005, leave was granted. The applicant primarily seeks an order ofcertiorari quashing the decision of the first named respondent of 26th November, 2004, and the recommendation of the Tribunal Member of 10th November, 2004.

6 The claim of the applicant for an order ofcertiorari is made on multiple grounds in the statement of grounds. The application is grounded upon an affidavit of the applicant. The notice of opposition is verified by two affidavits sworn on behalf of the respondent. Those affidavits deal with one alleged factual error and the practice of the Garda National Immigration Bureau at Immigration Control at a port of entry. The affidavits do not dispute any averment of the applicant as to what took place at the oral hearing before the Tribunal Member.

7 The Tribunal Member has given a very detailed and thorough decision.

8 From the applicant's submissions, as noted in the decision, it appears that the claim for a declaration of refugee status was likewise made on multiple grounds. Nevertheless, in the operative part of the decision following the heading "Assessment of the applicant's claim" the Tribunal Member referred to evidence of the applicant "indicating a subjective fear of a forced marriage in Ibadan by her deceased father's family and a threat to her life and upon relocating to Lagos to her boyfriend a subjective fear that she would become the victim of a ritual practice". The latter in particular appears to have related to a fear of charms. It is by reference to these subjective fears that the Tribunal Member assessed the claim to be a refugee.

9 In relation both to the forced marriage (or risk to her life by reason of her unwillingness to cooperate) and subjection to ritual practices the threat was alleged to be from non-state agents. Counsel for the respondent submitted that this Court should treat the decision as being one which rejected the applicant's claim solely on the basis that the Tribunal Member had concluded that the applicant had not discharged the onus on her of establishing that Nigeria was unable or unwilling to give her protection against the alleged persecution from the non state agents. It was submitted that in accordance with the principles in the decision of the Canadian Supreme Court inCanada (Attorney General) v. Ward, [1993], 2 S.C.R. 689, applied in this jurisdiction in Kramarenko v. Refugee Appeals Tribunal, [2004] 2 I.L.R.M. 550 that on the evidence the Tribunal Member correctly rejected the claim by reason of the absence of proof of Nigeria's inability to protect the applicant. It was further submitted that insofar as there were errors made in the assessment (which were not conceded)...