Reagan Oloo-Omee (A Minor) v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 09 November 2012
• Neutral Citation: [2012] IEHC 455
• Judgment citation (vLex): [2012] 11 JIC 0904
• Court: High Court
• Date: 09 November 2012

[2012] IEHC 455

THE HIGH COURT

[No. 1102 J.R./2011]

Oloo-Omee (A Minor) v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

BETWEEN

REAGAN OLOO-OMEE (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND BLESSING OLOO-OMEE)

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND IRELAND

RESPONDENT

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

REFUGEE ACT 1996 S16(16)

REFUGEE ACT 1996 S11

TIERNEY v AN POST 2000 IR 536

OKUNADE v MIN FOR JUSTICE 2013 1 ILRM 1 2012 IESC 49

Asylum & Immigration law - Judicial review - Mother and son - Relation between claims - Nigeria - Country of origin information

Facts: The applicant”s mother had sought asylum based upon her fear that she would be forced to undergo female genital mutilation in Nigeria if returned there had been rejected by the respondent. The applicant was her son and a minor and also had applied for refugee status. His mother alleged that she feared her son would be kidnapped in Nigeria if returned there. It was alleged that the Tribunal had erred in law and in fact in concluding that that her fears were not sufficiently connected to a real possibility that her fears would materialise and that the Tribunal had incorrectly related the claim of the mother to the child, causing his claim to fail.

Held by MacEochaidh J. that once the Tribunal found that the mother”s case was relevant to her son”s case, a serious error entered the decision making process and may have caused the Tribunal to conclude that as with the mother, so with the son. The Court would make an order quashing the decision of the Tribunal and would hear from the parties on the form of the order.

1 JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 9th day of November 2012

2 1. Interviews form an important part of the process by which applications for refugee status are determined. When the applicant is a minor, mistakes or missteps during interview by parents or those in like position should not be visited on the child and assessors must not confuse the voice of the parents with the voice of the child.

3 2. In this case, a mother sought asylum for her 4-year old son, she having previously been an unsuccessful refugee applicant. During an interview conducted by the Office of the Refugee Applications Commissioner, she was asked whether her son's claim was based on her own claim and she answered "Yes". This simple question and one-word answer has led to these proceedings. written by the same member of the Refugee Appeals Tribunal. The mother's answer notwithstanding, the basis of her claim for refugee status was not connected with the case made for her son. Fear of kidnapping was advanced as the main ground for seeking protection for the son whereas no such circumstance was associated with the mother's failed claim. Thus, her answer to the question was, at least prima facie, an unfortunate mistake. It is suggested by the respondent that the son's solicitor must have known this as he had acted for the mother and would have known that the claims were unrelated. It is said he should have addressed the controversial answer given by the mother to the Commissioner in the appeal to the Tribunal.

4 4. By decision dated 3 ^rd October, 2006, Ms. Margaret Levey B.L., a member of the Refugee Appeals Tribunal, rejected the mother's claim for refugee status which had been advanced on the basis of a fear that she would be forced to undergo scarification and that her daughter would suffer female genital mutilation. The applicant's mother's claim was rejected because her story of fearing scarification and fearing infliction of female genital mutilation ran counter to generally known facts about Nigeria.

5 5. On 20 ^th June, 2008, the applicant was born in Ireland. On 25 ^th February 2011, the applicant (via his mother) applied for refugee status. That application was commenced by completing a form which contains the following precis of the case made on behalf of the applicant:

"Applicant's mother states there are several children being kidnapped in Aba State where she is from in Nigeria at present. Applicant's mother states that she fears that her son would be kidnapped if he went to Nigeria because she has been living in Ireland for a number of years the kidnappers would think she is wealthy and could pay a ransom. Applicant's mother states that several of the children who were kidnapped are sacrificed at rituals so she also fears that this could happen to her son.

Applicant's mother states that because her son's ethnic group is Ibibio, he would be discriminated against by the people from Anambra State as some of these people do not believe in people from different ethnic groups getting married-this is where the applicant's father comes from."

6 6. In replies to questions 21, 28 and 29 of the questionnaire to be completed for the Refugee Applications Commissioner, the issue of kidnapping is repeatedly raised on behalf of the applicant by his mother. In addition, in reply to question 22 "On what grounds do you claim to have a fear of persecution?", the box referable to race and the box referable to political opinion are both ticked and it is indicated in manuscript that "My parent are from different ethnic groups I will be discriminated by people".

7 7. An interview in accordance with s. 11 of the Refugee Act 1996 was conducted on 2nd June, 2011. It took place over the course of one hour and twenty minutes in English. The interview was read back to the interviewee during the course of the interview page-by-page so that mistakes could be corrected as the matter proceeded and each page was signed by the interviewee. There was a further opportunity at the end of the interview to review the record of the interview and to correct mistakes again.

8 8. Prior to the interview, some documents had been submitted to the Office of the Refugee Applications Commissioner. The first of these, an article dated 11 May, 2011, is entitled 'Residents Panic as Kidnappers Resurface in Aba'. The article states:

"In the last four weeks, no less than six kidnapping incidents have been recorded in the city and this seems to bring about fresh fears among the residents. In April 2011, unknown gunmen in Aba kidnapped Justice Akomas, a retired Chief Judge. The same day, a Reverend Sister serving in a Catholic church within the city was also kidnapped. However, both victims regained their freedom two days after."

9 The article concludes with a quotation from a city resident who says:

"Everybody is scared, the rich, poor, the elderly and the young. The wealthy ones have all fled the city, as they were first targeted, but the way things stand now, nobody is safe anymore."

10 Another article submitted, dated Monday 30 ^th May, 2011, states that the Federal Government "deployed hundreds of soldiers to Aba in lawless Abia State to hunt down an armed gang holding fifteen schoolchildren hostage". The third article submitted related to the kidnapping of Justice Akomas.

11 9. During the course of the interview, the applicant was asked, "What do you fear would happen to your child if he was to go to your country, Nigeria?" The mother answered, having referred to the articles she had submitted and her general fear of kidnapping, "I have been here in Ireland for nearly six years now. If I go back with my children, they will assume that I have money, thinking that I've been in Europe for six years. But I'm only an asylum seeker". It was during the course of this interview that the mother was asked, "Is your child's claim wholly related to your own, based on your claim?" And she answered "Yes".

12 10. The mother's and son's claims are based on unrelated fears. Read literally, the mother's answer to the question posed is mistaken. But it may involve a misunderstanding. The mother is claiming asylum on behalf of her son, and shewas askedwhether her son's claim was based on her claim, it is possible she believed that the questioner was enquiring whether the son's case was that which the mother then sought to make out on his behalf, i.e. what she was claiming. English is not the first language of the applicant's mother. The interview was likely to have been a fairly stressful event. It may be that genuine confusion arose in relation to this question and answer, with neither side discerning the confusion at the time. The mother is an intelligent university graduate and it is highly improbable that she intended to convey what the literal meaning of her answer suggests.

13 11. The Commissioner's decision does not eschew fear of kidnapping in Nigeria as a basis for refugee status. However, it was found that the mother's fear that such might happen was improbable; that in any event, the authorities are becoming more successful at combating this crime and that the applicant could avail of...