E (OP) [Nigeria] v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Stewart
• Judgment Date: 27 November 2015
• Neutral Citation: [2015] IEHC 748
• Date: 27 November 2015

[2015] IEHC 748

THE HIGH COURT

[No. 334 J.R./2014]

E (OP) [Nigeria] v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

BETWEEN

O.P.E. (NIGERIA)

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL MINISTER FOR JUSTICE AND EQUALITY ATTORNEY GENERAL

RESPONDENTS

Asylum, Immigration & Nationality – S. 8 of the Refugee Act 1996 – Fear of persecution – Negative credibility findings – Art. 17 of Council Directive 2005/85/EC – Treatment of homosexuals in country of origin

Facts: The applicant sought an order of certiorari to quash the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicant should not to be declared a refugee. The applicant contended that when she arrived in the State, she was a minor, and by interviewing her as an adult and in processing her application, the first named respondent failed in its obligations under the UNHCR guidelines.

Ms. Justice Stewart granted an order of certiorari and quashed the decision of the first named respondent and remitted the matter to the first named respondent for reconsideration by a separate member. The Court held that the first named respondent did not give weight and emphasis to the evidence presented by the applicant in relation to her rape and homosexual orientation, which was criminalized in the country of origin. The Court observed that the s. 16 (16) of the Refugee Act 1996 makes it obligatory for the first named respondent to have due regard to the evidence, representations, documents and arguments. The Court found that the first named respondent ignored the submissions made by the applicant that there were issues in relation to her s. 11 interview. The Court held that it was the discretion of the decision-maker as to what probative value should be assigned to the evidence but it was bound to decide the complaint that was presented before it.

1 1. This is telescoped hearing for judicial review seeking certiorari to quash a decision of the Refugee Appeals Tribunal (RAT) dated 5 ^th March, 2013, affirming the negative recommendation of the Refugee Applications Commissioner (RAC) that the applicant should not be declared a refugee, and remitting the appeal of the applicant for de novo consideration.

2 2. The proceedings were originally issued with the second named respondent being named as the Refugee Applications Commissioner. Counsel on behalf of the respondents issued a notice of motion dated 15 ^th November, 2013, seeking an order dismissing the proceedings against the RAC. Said order was granted by Mr. Justice MacEochaidh, dated 14 ^th February, 2014. The RAC was removed as a respondent and the case proceeded with the three respondents named herein.

BACKGROUND

3 3. The applicant is a Nigerian national, from Edo state. Her stated dated of birth is 14 ^th February, 1992. The following is the applicant's account of the events that led to her arriving in this State and claiming international protection. The applicant was not certain of dates so the following is generally in terms of the timeframe.

4 4. The applicant lived with her father and stepmother in Edo, Nigeria. However, she stated the living arrangements were difficult and her stepmother maltreated her. The applicant claimed that she was raped and, as a result, gave birth to a son in 2005. The child was taken by a family friend because the applicant did not have the financial resources to support the child. The applicant could not remain with her father as he was not in a position to support the applicant. The applicant then discussed her situation with a friend from school and that friend, after getting the permission of her parents, allowed the applicant to stay. The two girls began a relationship but it was discovered by the community in December 2007, although the source of this discovery was unknown to the applicant. She stated that the youths in the community were against her as a result and they carried cutlasses while looking for her. She then met a man to whom she explained her problems, and he offered to pay for her travel and take her to Ireland.

5 5. The applicant left Nigeria on 20 ^th December, 2007, transited through London, and arrived in Ireland on 24 ^th December, 2007. She presented at the offices of the RAC on or around 23 ^rd January, 2008. As her stated age was sixteen at the time of her application, an age assessment was conducted that day with a RAC authorised officer. In this short interview, the applicant was asked, in English, about her travel route to the State; the names of her family members; and her school qualifications. The authorised officer did not accept that the applicant was a minor, for the following reasons:

1 She did not provide a passport

2 She did not provide any verifiable documentation to prove her age

3 She appeared to be older in appearance

4 She appeared to have the maturity of an adult

As a result, the applicant was not referred to the Health Service Executive pursuant to s.8(5) of the Refugee Act 1996 (as amended).

6 6. The applicant attended at the RAC offices to complete a s. 11 interview on 1 ^st March, 2008. The interview was conducted in English, without a guardian or legal representative present as she was deemed to be of the age of majority. The RAC issued its negative recommendation on 5 ^th March, 2008, by way of the s.13 report. In regards to the supporting documentation submitted by the applicant the authorised officer stated, at p. 18 of the booklet:

"The following documentation was submitted by the applicant in support of her application:"

· Sworn age declaration from the Magistrate's Court of Lagos

· Statutory declaration of age, issued by Nigerian Embassy, Ireland.

All of the documentation furnished in connection with the application has been fully considered.

ORAC is unable to verify the authenticity of these documents."

The decision then founded that, inter alia, the applicant lacked credibility; her answers at interview were vague and hesitant; and she could have sought the protection of the state authorities in Nigeria.

7 7. The applicant appealed the decision to the RAT and had procured the assistance of solicitors. The applicant initiated judicial review proceedings challenging the s.13 report. These proceedings were withdrawn by the applicant based upon the prevailing jurisprudence at the time that the applicant should exhaust all available remedies prior to bringing judicial review proceedings. The applicant's solicitors filed supplemental submissions on 11 ^th January, 2011, which supplemented the form one notice of appeal issued to the RAT on 23 ^rd March, 2008. The applicant argued that the RAT should disregard the s.13 report and details of the s. 11 interview notes because of the manner in which these were collated. The applicant was interviewed by a tribunal member on 14 ^th January, 2013. The applicant furnished her birth certificate to the tribunal member and her passport was on file. The passport had been supplied by the GNIB after the applicant was discovered to be working in the sex industry in Cork. The birth certificate is recorded as having been used to obtain her passport in Ireland in July, 2010.

IMPUGNED DECISION

8 8. The decision dated 5 ^th March, 2013, and issued to the applicant by cover letter dated 17 ^th April, 2013, affirms the negative recommendation of the RAC, that the applicant should not be declared a refugee. From p. 120, under the heading 'analysis of the applicant's claim', the tribunal member states:

"The applicant has to demonstrate that there is a 'serious possibility' or a 'reasonable chance' or a 'real chance' of persecution. I do not accept that this applicant has a well founded fear of persecution for a convention reason. Serious credibility issues arise from her evidence."

In her ASY1 form, her questionnaire (Q.21), and at interview the applicant claims that she is at risk of being killed by members of her community because she is a lesbian. While she also states that she was raped as a result of which she had a child, she does not give evidence of any other basis for her claim. In her form I notice of appeal however, it is submitted on her behalf that she wishes to supplement her claim for asylum and that 'Her additional claims for refugee status arises (sic) from her claim that she suffered past persecution on account of her membership of a particular social group, namely, children in Nigeria who have been subjected to sexual assault. In particular the Appellant was a victim of rape when she was a minor in Nigeria and determined that she could not seek the protection of the state…' […] It is submitted that there is no state protection available to the applicant as such a victim and that relocation is not an option for her.

The applicant's evidence in relation to her own alleged sexual orientation is somewhat vague. She states at interview that 'I have a girlfriend in Nigeria before' (Interview p4). She states that after she was raped and gave birth to her baby 'I was moving in with my girlfriend and she changed me into a lesbian. I never knew it was forbidden' (interview p7). Asked when she first realised she had homosexual feelings towards her girlfriend she states 'When we were staying together' (interview p8). She claims that they were together for two years. Asked if she had ever had a homosexual relationship before this she states 'Why I accepted the lesbian was because I was raped before' (interview p10). At hearing her evidence in relation to her sexual orientation was as follows: 'When living with Amass she would touch her in the night and she didn't want to say anything as she was giving her a place to stay. Later on she had no choice but to fall into being a lesbian… In cross examination she said she was a lesbian now. She had a relationship with Mr.O'F[…] but he drank...