R A. [Nigeria] v Minister for Justice, Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: MS JUSTICE M. H. CLARK,
• Judgment Date: 12 November 2013
• Neutral Citation: [2013] IEHC 504
• Court: High Court
• Date: 12 November 2013

[2013] IEHC 504

THE HIGH COURT

Record No. 190 J.R. / 2009

A (R) [Nigeria] v Min for Justice & Refugee Appeals Tribunal (Levey)

[2013] IEHC 504

JUDICIAL REVIEW

Between:

R. A. [NIGERIA]

APPLICANT

-AND-

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND MARGARET LEVEY, SITTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

EEC 2005/85 ART 23

EUROPEAN COMMUNITIES (ASYLUM PROCEDURES) REGS 2011 SI 51/2011

S (AW) v REFUGEE APPEALS TRIBUNAL (ZAIDAN) UNREP DUNNE 12.6.2007 2007/54/11567 2007 IEHC 276

R (H) [BELARUS] v REFUGEE APPEALS TRIBUNAL (MCCABE) & MIN FOR JUSTICE UNREP RYAN 8.10.2010 2011/44/12483 2010 IEHC 510

Judicial review of decision of Refugee Appeals Tribunal - Asylum - Certiorari - Delay - Credibility - Good administration - Unfairness.

The applicant, R.A., a Nigerian national, sought an order of certiorari quashing the decision of the Refugee Appeals Tribunal. The Refugee Appeals Tribunal affirmed the decision of the Refugee Applications Commissioner (RAC) and denied refugee status.

When the applicant applied for asylum, she was in the ninth month of her pregnancy. She claimed that she was subjected to persecution by her late husband”s family. The husband died in a car accident, after which the family expected her to marry the husband”s brother. She refused, after which she stated that the in-laws made death threats to herself and her unborn baby. She claimed that she was then subjected to three months of forced sexual intercourse and beatings by the brother-in-law. She went into hiding and sold the land owned by her late husband. The money was used to escape to Ireland. She stated that she feared being killed by her in-laws if she returned and claimed that she couldn”t internally relocate as the in-laws would find her. She had no identity documents and no other documentation to support her claim. Her child was born in Ireland three weeks after the asylum claim to the RAC.

The Tribunal determined that the only aspect of the definition of refugee satisfied by the applicant was that she was outside her country of origin. It was decided that the applicant had no genuine fear and that she never sought state protection. Moreover, the Tribunal Member found that it was not credible that the applicant remained in the same house as her persecutors for three months given that her parents lived in the same region, that it was unlikely that she could sell the late husband”s property, that it would not have been unduly harsh to expect her to relocate internally, as well as a range of further credibility findings which led to dismissal of her application.

R.A.”s appeal had to be adjourned as a result of her child being diagnosed with a life threatening condition. This resulted in a ten month delay. The court found this delay to be extraordinary in the particular circumstances of the ‘accelerated hearing provision’ applicable to her case on the basis of being Nigerian. The applicant contended that this delay was unreasonable, unexplained and in breach of her right to good administration under EU law.

Held by Clark J., the key issue in these proceedings was that a protection applicant was entitled to assume that the hearing would be conducted both ‘efficiently and fairly’. As such, the matter for the court to consider was whether the breach of good administration was such that it infected the process to the point that the decision should not stand. Clark J. held that the lack of explanation for delay in a case that was rejected on the basis of credibility led to concerns that the process may have been infected by unfairness.

The decision of the Refugee Appeals Tribunal was therefore quashed and remitted for fresh consideration by a different Tribunal Member.

1 MS JUSTICE M. H. CLARK, delivered on the 12th day of November 2013.

2 1. The applicant seeks an order of certiorari quashing the decision of the respondent Tribunal dated the 27 ^th January 2009, to affirm the negative recommendation of the Refugee Applications Commissioner that she should not be declared a refugee. By order of Mac Eochaidh J. dated the 21 ^st December 2012, she was granted leave on a number of grounds, including that the decision is unsafe because of an unexplained ten month delay between the date of the hearing and the date of the decision, which is based on a rejection of credibility. The substantive application was heard on the 4 ^th July 2013. The applicant was represented by Mr Paul O'Shea B.L. and Mr Niall O'Hanlon B.L. appeared for the respondents. At the close of the hearing the Court indicated ex tempore that the applicant would succeed on ground B (delay) and granted the reliefs sought. The Court now gives its reasons.

The Claim

3 2. The applicant was in the ninth month of her pregnancy when she applied for asylum at the Office of the Refugee Applications Commissioner (ORAC). She is a woman in her mid-30s who claims to have suffered persecution at the hands of her late husband's family. After he died in a car accident her in-laws expected her to follow their custom and marry his brother. When she refused, her in-laws threatened to kill her and her unborn baby as a sacrifice to their shrine. After three months of forced sexual intercourse and beatings at the hands of her brother-in-law, she left the family compound taking title deeds to land owned by her late husband and went into hiding. She then sold the land for the cost of being brought to Ireland, leaving her seven year old daughter behind in the care of her parents. She claimed to fear being killed by her in-laws if she returned. She said she could not relocate within Nigeria as they would use ju-ju and the Oracle to find her wherever she went. She had no identity documents of any kind and no documents to support her claim. Her son was born in Ireland three weeks after she made her claim for asylum. The apparent lack of coherence in her claim may in part be explained by the fact that she only spoke Yoruba, she claimed only a primary school education and her questionnaire was filled out in English by another asylum seeker.

The Decision

4 3. The Tribunal Member considered the definition of a refugee and noted that only one elements of the definition was present in the claim, being that the applicant was outside of her country of origin. It was not accepted that there was a genuine fear in the mind of the applicant and it was noted that she had never sought state protection. The Tribunal Member made the following credibility findings:-

5 · It was not credible that the applicant remained in the same house with her persecutors for three months on the basis that she had no-where to go, when her own parents lived in the same region;

6 · COI suggests that a widow could be considered part of her husband's property to be inherited by his family after his death. The evidence that the applicant sold her husband's...