E. (S. B.) v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 25 February 2010
• Neutral Citation: [2010] IEHC 133
• Docket Number: [No. 1280 J.R./2007]
• Court: High Court
• Date: 25 February 2010

E (S B) v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

BETWEEN

S.B.E.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

[2010] IEHC 133

[No. 1280 J.R./2007]

THE HIGH COURT

IMMIGRATION

Asylum

Credibility - Internal relocation - Defective internal relocation assessment - Role of Court - Whether Tribunal's assessment of internal relocation substantial ground - Whether Tribunal's assessment of credibility substantial ground - Refugee Act 1996 (No 17), ss 2, 11B - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 7 - Convention Relating to Status of Refugees - Application refused (2007/1280JR - Cooke J - 25/2/2010) [2010] IEHC 133

E(SB) v Refugee Appeals Tribunal

Facts the applicant had been granted leave to seek judicial review of the decision of the respondent refusing his appeal against the recommendation of the Refugee Applications Commissioner that he not be recognised as a refugee on the grounds, 1, that the respondent had misapplied the definition of "refugee" in section 2 of the Refugee Act 1996 by failing to consider, decide and explain whether the events which it accepted as having occurred as a crisis giving rise to the applicant's flight, constituted a valid basis for a well founded fear of persecution and; 2, that the decision was unlawful in that it purported to find that internal relocation in Nigeria would have been available to the applicant when no such finding had been made in the section 13 report and where no particular part of that country had been identified or investigated as a potential site for relocation contrary to regulation 7 of the European Communities (Eligibility for Protection) Regulations 2006.

Held by Mr. Justice Cooke in refusing the relief sought that there were items, such as the fact that the applicant had no identification documents and his explanation of the manner in which he traveled to the State, which the respondent was entitled and obliged to assess pursuant to section 11B of the Refugee Act 1996 amongst the statutory indices of credibility of an asylum claim. Section 11B did not stipulate what the consequences of such a finding were to be but it was clear that unless there were other aspects to a claim which were sufficiently plausible and likely to have happened to overcome those indices of doubt, such findings alone could be a sufficient basis for the negative decision. The process by which this conclusion on credibility had been reached was clear from the decision itself. In those circumstances, the decision reached on internal relocation had not been germane to the substantive decision of the respondent to refuse the applicant's appeal.

Reporter: P.C.

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S13

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 7

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION)

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 91

REFUGEE ACT 1996 S11B

Mr. Justice Cooke

1 It is a useful, if perhaps superficial, test of the soundness of a negative decision of the Refugee Appeals Tribunal to read it as a whole and then pose the question: "Is it clear from the decision why this applicant is not to be declared a refugee?" In this case the immediate answer to that question would be two-fold: first, because the applicant was found to be "less than credible and in his demeanour, he presented as an educated individual who simply was not telling the truth;" and secondly, because the Tribunal member formed the opinion that the applicant could have relocated to another part of Nigeria thereby avoiding the need for international protection.

2 To satisfy scrutiny as to the legal validity of the decision, however, it is necessary to ask a more precise question: Is it clear from a reading of the decision as a whole that those two conclusions have been reached by a process which is soundly based on evidence and information available to the Tribunal which has been objectively and fairly assessed by the Tribunal member?

3 Leave to bring this application was granted by order of 28^th October, 2009 because the Court considered that two substantial grounds had been made out which it decided should be expressed as follows:

2 "1. In forming the opinion that the applicant may have had economic motives for leaving Nigeria, the Tribunal member erred in law and misapplied the definition of 'refugee' in s. 2 of the Refugee Act1996 by failing to consider, decide and explain whether the events which he accepted as having occurred as a 'crisis' giving rise to the applicant's flight, constituted in fact a valid basis for a well-founded fear of persecution.

2 The decision of the Tribunal is unlawful in that it purports to find that internal relocation in Nigeria would be available to the applicant when no such finding had been made in the section 13 report the subject of the appeal and where no particular part of that country had been identified or investigated as a potential site for relocation either by the Commissioner or the Tribunal member, contrary to the requirement of Regulation 7 of the European Communities (Eligibility for Protection) Regulations 2006."

4 In granting leave the Court expressed the view that, at least on a first reading, the appeal decision appeared to betray a degree of ambiguity or internal contradiction which created uncertainty as to the coherence of the process by which the Tribunal member had reached the two conclusions given as the basis for affirming the negative recommendation of the section 13 report.

5 The applicant is from Nigeria. In 2006 he was living in Onitsha with his wife and daughter and he ran a store. In June and July 2006, violent upheavals broke out in Anambra state where Onitsha is situated. The section 13 report accepted that the applicant's description of the violence, clashes with police and attacks attributed to activists in the Movement for a Sovereign Biafra (Massob) was supported by country of origin information.

6 The applicant claimed, in effect, to have been a victim of this violence. He said that his store was vandalised and his goods were stolen: his wife was kidnapped and a ransom demanded. He reported this to the police but they did nothing and even told him to pay the ransom. A friend of his knew a member of Massob who helped his wife escape. They were told to leave the country for their own safety. His sister introduced him to an agent who arranged for them to travel from Lagos to Cork and then to Dublin. He arrived in Ireland in 2006 and claimed asylum.

7 In the Contested Decision at Section 3 under the heading "Applicant's Claim" the Tribunal member sets out a summary of the above events as recounted by the applicant as his reason for fleeing from Nigeria. It includes a record of questions put to the applicant at the appeal hearing directed at his credibility including the absence of any photo identification or driving licence and the fact that he and his wife were...