P.S. v Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Mr. Justice Colm Mac Eochaidh |
| Judgment Date | 11 July 2016 |
| Neutral Citation | [2016] IEHC 398 |
| Docket Number | [2014 No. 738 J.R.] |
| Court | High Court |
| Date | 11 July 2016 |
[2016] IEHC 398
THE HIGH COURT
JUDICIAL REVIEW
Mac Eochaidh J.
[2014 No. 738 J.R.]
Asylum, Immigration & Nationality – S. 5 of the Illegal Immigrants (Trafficking) Act 2000 – Appeal against the decision of the Refugee Appeals Tribunal – Adverse credibility findings – Certiorari – Fear of persecution – Assessment of evidence – Papers-only appeal
Facts: The applicant sought an order of certiorari for quashing the decision of the first named respondent affirming the recommendation of the Office of the Refugee Applications Commissioner that the applicant should not be declared as a refugee. The applicant contended that the first named respondent failed to assess the claim based on his sexual orientation and completely ignored the persecution that he faced in the country of origin owing to him being a gay. The first named respondent argued that the evidence presented by the applicant was found not to be plausible.
Mr. Justice Colm Mac Eochaidh granted an order of certiorari and thus quashed the decision of the first named respondent. The Court held that there were some lawful and some unlawful findings made by the first named respondent. The Court found that since the unlawful findings went to the core of the applicant's claim, it would not be appropriate to severe the findings and thus, the entire decision was liable to be quashed. The Court observed that the findings of the first named respondent that the applicant failed to name any gay club and did not face any difficulty in the country of origin and assessment of country of origin information were irrational and illogical findings.
Leave to seek judicial review was granted by this Court on the 8th December, 2014, following an ex parte application made pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended by s. 34 of the Employment Permits (Amendment) Act 2014, which includes a requirement that the applicant show substantial grounds for their claim that the decision of the Refugee Appeals Tribunal ought to be quashed.
The applicant seeks, inter alia, an order of certiorari quashing the decision of the R.A.T. affirming the recommendations of the Office of the Refugee Applications Commissioner that the applicant not be declared a refugee and an order remitting the appeal for fresh determination by a separate tribunal member.
A secondary relief sought involves a challenge to the constitutionality of s. 16 of the Refugee Act 1996 (as amended). It is stated at relief 6 as follows:-
'In the alternative, if necessary, a declaration that Sections 16 of the Refugee Act, 1996 (as amended) is invalid having regard to the provisions of Article 40.3 of the Constitution.'
The constitutional issue falls to be determined, if at all, as the last issue in the case.
In the Supreme Court decision in Sivsivadze v. Minister for Justice and Equality [2015] I.E.S.C. 53, delivered on the 23rd June, 2015, Murray J. decided that if the primary relief sought is challenging the constitutionality of a statute, even where the facts are agreed and there is no requirement for the court to hear oral evidence, the proceedings must start by way of plenary summons. The learned Judge said at para. 27:-
'...this Court has pointed out on several occasions that proceedings challenging the constitutionality of an Act of the Oireachtas should be in the form of plenary proceedings and not a remedy pursued by way of judicial review.'
On that basis, if the applicant loses every other point and the challenge to the constitutionality of the Act of 1996 (as amended) remains, the Court will hear the parties as to whether it is possible to proceed with that issue in view of the time limits within which any challenge to a decision of the R.A.T. must be brought. (Section 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended by s. 34 of the Employment Permits (Amendment) Act 2014, provides that such challenge must be brought within 28 days.)
The applicant is a Nigerian man born on the 31st October, 1981, who says he is gay. He avers that he had been canvassed by people associated with the Movement for the Emancipation of the Niger Delta (M.E.N.D.) since 2008. He informed members of M.E.N.D. of his homosexuality and in February 2012 he was attacked by them outside a bar. The applicant further avers that the police refused to help him after the attack because of his homosexuality. He believes members of M.E.N.D. subsequently tried to kill him by burning his house while he was inside. He also avers that he received death threats, was abused and socially isolated, banned from attending some premises and forced to live a solitary lifestyle in Nigeria.
The applicant avers that a man with whom he had a relationship helped him obtain a visa for Ireland and arranged his travel to this State. The applicant arrived in Ireland on the 3rd October, 2012, but did not apply for asylum on arrival as he avers that he felt safe for the three month currency of his visa and for nine months thereafter, owing to the accommodation of women the applicant befriended while in Ireland.
The applicant applied for asylum on the 23rd September, 2013. He was interviewed by the O.R.A.C. on the 30th October, 2013, and was notified by letter dated the 29th November, 2013, of the Commissioner's recommendation that he not be declared a refugee. The Commissioner decided that s.13 (6) of the Refugee Act 1996 (as amended) applied as it was found that he had, without reasonable cause, failed to made an application for asylum as soon as reasonably practicable upon his arrival in the State. Consequently, his appeal to the R.A.T. was by written submissions only without an oral hearing. The applicant was notified of the negative decision of the R.A.T. by letter dated the 12th November, 2014, and received by him on or about the 14th November, 2014.
The tribunal member found the applicant to be lacking in credibility. The findings in relation to credibility are as follows:-
'1. The Appellant claimed that he specifically obtained a visa for the purpose of travelling to Ireland and claiming asylum, yet the Appellant not only did not apply for asylum immediately on arriving in the State (October 2012), he failed to apply for asylum until September 2013, notwithstanding the fact that his visa was only valid for 3 months. The first time that the Applicant applied for asylum was on 23/09/2013. Thus the Appellant was in this State almost one year, nine months of those illegally, before applying for asylum. I do not accept the reasons given by the Appellant for failing to claim asylum earlier, I also point out that his explanation that he was living with some ladies and no-one was stressing him to be unacceptable. If the Appellant truly came to this country to claim asylum on account of alleged persecution experienced, it is reasonable to expect him to apply for asylum upon arrival, not almost one year later.
2. The Appellant could not provide an address of where he was living with these so-called ladies, I point out that this Appellant is not illiterate, he holds a degree in Economics and he lived with them for approximately 9 months according to his evidence. I do not accept this account as being credible under the circumstances.
3. It is not plausible that the Appellant could not remember the name of the gay bar that he allegedly attended in Temple Bar. The Appellant is well educated, he may have stumbled upon this gay bar by chance, however I believe that if the Appellant was looking to make contact with the gay scene in Dublin it is not plausible that he did not note the name of this bar for future reference.
4. I do not consider it plausible that the Appellant, if he was, as he alleges, in a gay bar in Temple Bar, would know about The George, arguably the most famous gay bar in Dublin, and yet not know even approximately where it is (some footsteps away from Temple Bar).
5. I do not find it plausible that the Appellant, as someone who had arrived in Ireland with no friends and family here, and who had allegedly experienced problems on account of his sexuality in his home country, would not seek support from an organisation, such as the one mentioned in the interview, while here in Ireland. The Appellant's claim that he went to the offices of the LGBT in Parnell Street, but simply did not bother to go back because it was closed at the time, leads me to believe he was not experiencing any problems on account of his alleged sexuality in his home country.
6. The Appellant claimed that he told M.E.N.D. that he was gay in January 2011, he thinks they did not believe him at the time, it was only in February 2012 that they targeted him as they "believed' him at this time. The evidence is unreliable, it is based on speculation as to what M.E.N.D. did or did not believe.
7. As regards country of origin information, the section 13 report quotes information that was consulted, it is noted that despite extensive research no information could be found that M.E.N.D. targets homosexuals in Nigeria, the Appellant claims that they do. The Appellant can provide no proof of this apart from his testimony, and I find his testimony to be lacking in credibility. I do not accept this aspect of the Appellant's account as I prefer the independent COI and it was open to the appellant to provide some COI to support his contention, which he has not.
8. In relation to the process of application for a tourist visa to travel to Ireland, the Appellant's testimony in this respect is also lacking in credibility, it is not credible that the Appellant would not remember whether...
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