R.O. (an Infant) v Minister for Justice

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Colm Mac Eochaidh
Judgment Date20 December 2012
Neutral Citation[2012] IEHC 573
Docket Number[2008 No. 972 JR]
Date20 December 2012
O (R) (an infant) v Min for Justice & Refugee Appeals Tribunal (Levey)
JUDICIAL REVIEW

BETWEEN

R O (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND A O)
APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY AND MARGARET LEVEY SITTING AS THE REFUGEE APPEALS TRIBUNAL
RESPONDENT

[2012] IEHC 573

[No. 972 J.R./2008]

THE HIGH COURT

Judicial Review - Asylum - Refugee Appeals Tribunal - Credibility findings - Rationality - Adequate reasoning - Legality of decisions - Ultra vires - Patent reasoning

Facts: The applicant was an infant who was represented by her mother. The applicant”s mother was originally from Nigeria. The infant was born on the 9 th October 2006 in Ireland and her mother made an application for refugee status on her behalf on the basis that if she was returned to Nigeria, she would be harmed by her father, his family and the village residents. It was the applicant”s mother”s claim that she had been raped by her brother-in-law but that she and her daughter faced persecution by her husband and his family because they believed it was a consensual sexual encounter. The application was rejected at first instance and on appeal on the basis of negative credibility findings made against the applicant”s mother”s account.

An application for leave to apply for judicial review was made and accepted on the ground that that the reasons given by the Refugee Appeals Tribunal for the negative credibility findings were inadequate making the ultimate decision invalid.

There were seven negative credibility findings which were examined individually by Mac Eochaidh J. The first finding related to the implausibility of the applicant”s mother”s account that she continued to cohabit with her alleged rapist for a number of weeks after the offence without informing the police. It was held that the reason for this finding spoke for itself in that a reader could easily understand the reason for disbelief. The same conclusion was reached by Mac Eochaidh J for the second finding which was the implausibility of the applicant”s mother”s contention that following the alleged offence, she, her husband and her brother-in-law embarked on a five hour journey together to visit her husband”s parents. The third finding of disbelief that the alleged rapist confessed to his parents he had raped the applicant”s mother but was instead sentenced to death by the Elder”s court for having an affair was held to clearly show that the disbelief derived from the fact there was inconsistency between the alleged confession and the alleged charge and conviction.

The fourth finding of disbelief was that the alleged rapist”s parents would be a party to the death of their son. The fifth finding was that it was implausible that the applicant”s mother escaped to the next village soon after by running 70km in an hour. The sixth finding was that it was unbelievable that a complete stranger would then house her for 2 months. The seventh finding was that it was implausible that on the one hand she claimed her husband was her persecutor but on the other she gave his telephone number as her next-of-kin when she had entered hospital in Ireland. The reasoning for these findings were held to be patent as opposed to expressly stated in that they could easily be determined by a reader. They were therefore deemed sufficient.

It was held that adequate reasoning was given for each of the negative credible findings and further, that each of the decisions reached were rational.

Reliefs sought refused.

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K (H) v SECRETARY OF STATE FOR THE HOME DEPT UNREP 20.7.2006 2006 EWCA CIV 1037

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 4ED 2010 684

DEERLAND CONSTRUCTION v AQUATIC LICENSING APPEALS BOARD 2009 1 IR 673

SOUTH BUCKINGHAMSHIRE DISTRICT COUNCIL & ANOR v PORTER (NO 2) 2004 1 WLR 1953 2004 4 AER 775 2005 1 P & CR 6

MEMISHI v REFUGEE APPEALS TRIBUNAL UNREP PEART 25.6.2003 2003/35/8424

DIAZ-MARROQUIN v IMMIGRATION & NATURALIZATION SERVICE 2001 US APP LEXIS 2352

R (I) v MIN FOR JUSTICE UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

KIKUMBI v OFFICE OF THE REFUGEE APPLICATIONS CMSR UNREP HERBERT 7.2.2007 2009/31/7713 2007 IEHC 11

NI EILI v ENVIRONMENTAL PROTECTION AGENCY UNREP SUPREME 30.7.1999 2000/13/4925

MJT SECURITIES LTD v SECRETARY OF STATE FOR THE ENVIRONMENT 1998 JPL 138

STATE (KEEGAN) v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

1

JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 20th day of December, 2012

2

1. This is an application for judicial review of a decision of the Refugee Appeals Tribunal refusing refugee status to an infant applicant because of the lack of credibility of her mother. The issue for decision in this case is whether the Refugee Appeals Tribunal expressed adequate reasons for rejecting credibility. Leave to seek judicial review was granted by O'Keefe J. on 1 st May 2012 on the following ground only: "that no adequate reason has been provided by the Refugee Appeals Tribunal for reaching its conclusion on the Applicant's credibility and as a result the decision is invalid".

3

2. The infant applicant was born on 9 th October, 2006 in Ireland and her mother, who was born in 1978 in Nigeria, claimed refugee status for her daughter based on an apprehension that her husband and his family would harm the infant applicant if she returned to Nigeria.

4

3. The Office of Refugee Applications Commissioner (ORAC) made a report on the infant applicant's claim for refugee status and gave a negative recommendation. The applicant's mother fears persecution from her husband, his family and people in his village who, it is said, wish to kill her because of a sexual encounter with her brother in law, perceived by her husband as evidence of an affair but described by her as rape. Her claim was recommended for rejection as there were concerns about her credibility which cumulatively "served to undermine the applicant's claim that she has a well founded fear of persecution based on Convention grounds".

5

4. Following the refusal of the infant applicant's claim for refugee status, her mother, on her behalf, appealed to the Refugee Appeals Tribunal (the "Tribunal") and it is that decision which is sought to be impugned in these proceedings. Section 3 of the Tribunal's decision describes the applicant's claim and no issue is taken with the accuracy of the statement of the applicant's claim in these proceedings.

6

5. The claim is stated by the Tribunal in the following terms:-

"The Applicant herein was born in Ireland on the 9 th October, 2006. The Applicant's mother gave evidence on her behalf as follows. The Applicant's mother was born in 1978 and is Nigerian. She is Yoruban and a Muslim. She was married in 2002. Her husband came back from a business trip and saw the Applicant her brother law engaging in sexual intercourse. This was in Lagos. The Applicant said he had raped her but the husband didn't believe her. He left the house and returned in 3 days and said he went to the village in Osun state to tell his parents what happened. He took her children to her parents in Lagos. He returned and said he was asked to take her and the brother in law to the village. They were taken to a palace. This was a small room where meetings took place with chiefs. They said what happened was an abomination and a judgment was to be passed on them. They said that the baby she was carrying would meet the consequences too. They were to be kept in a different room. She was kept in a room for nine days. He was kept for seven days in the room. On the seventh day he was killed. She heard him shouting and the guard at her door confirmed it. The guard said he would let her go and he would be punished for this but they would not kill him. She walked to the next village. She met a man and explained what happened and he said he would help her. He took her to his house and she remained in his house for a couple of months. Then she met a lady there. Her name was Omilade. She became her friend. She told her to take things easy. She introduced her to her sister. She didn't go to the police as they are corrupt. Her husband is rich and influential. They would get her husbands version of events and give her back to her husband. She came to take her to Lagos and she met a man there who showed her a passport and explained to her what would happen and they would bring her to a safe country. This was in September, 2006. She couldn't relocate as if she met someone and told them what happened to her they might tell people her story and she would be found. Her husband might send the police to look for her. She was asked why she put her husbands name down in her hospital details as her next of kin and she said she didn't think of anyone else. In cross examination she was asked if her brother in law came back before her husband and returned after 3 days and she said he did. He had a key and came back and went to his room. He came back as he had to go to work. It was put to her that he had allegedly raped her and yet she was unconcerned that he was back in her house and didn't contact the police and she said he wouldn't do it again as he had been caught. He admitted to raping her and said it was the devils work. He told his parents this when they went back to the village. It was some weeks before the husband took her to the village. The village of Oshogbo was five hours away. They all went in his car. Different guards were guarding her and her brother in law. Regarding her escape from the palace and her walk to the next village it was put to her that it was 70km to Alabameta and would take more than an hour to walk it and she said she ran. A map was handed in by the presenting officer which indicated that Alabameta was not in fact the next...

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