S (F O) v Min for Justice & Refugee Applications Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice McMahon
• Judgment Date: 11 July 2008
• Neutral Citation: [2008] IEHC 238
• Court: High Court
• Date: 11 July 2008

[2008] IEHC 238

THE HIGH COURT

[No. 1159 J.R./2006]

S (F O) v Min for Justice & Refugee Applications Commissioner

JUDICIAL REVIEW

BETWEEN

F. O. S.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(1)

IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 10.5.2005 2005/31/6357 2005 IEHC 150

MOYOSOLA v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP CLARKE 23.6.2005 2005/40/8261 2005 IEHC 218

OLATUNJI v REFUGEE APPEALS TRIBUNAL & MIN JUSTICE UNREP FINLAY GEOGHEGAN 7.4.2006 2006 46 990 2006 IEHC 113

REFUGEE ACT 1996 S11B(c)

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 37

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 41

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 42

HOME OFFICE OPERATIONAL GUIDANCE NOTE NIGERIA (UK)

HOME OFFICE COUNTRY OF ORIGIN INFORMATION REPORT NIGERIA APRIL 2006 PARA 6.116

STEFAN v MIN JUSTICE 2001 4 IR 203

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORPORATION 1984 IR 381

1 Mr. Justice McMahon delivered on the 11th day of July, 2008

2 The applicant in these proceedings seeks leave to bring judicial review proceedings to quash the decision of the Refugee Applications Commissioner (hereafter "the Commissioner") dated the 15 ^th August, 2006, that the applicant failed to establish a well founded fear of persecution as defined in s. 2 of the Refugee Act 1996 (as amended) and a recommendation that the applicant should not be declared a refugee.

3 The applicant has also without prejudice to these proceedings lodged an appeal to the Refugee Appeals Tribunal. This means that the applicant, in the event of leave being refused, will be entitled to a full oral hearing of her case where all the issues she complains of can be fully ventilated by her legal team at such hearing. Moreover, her ability to argue her case will be strengthened by the fact that she and her legal team will, in such an eventuality, have prior notice of the issues identified by the Commissioner (and further ventilated in this court) and will be better able to address them on that occasion. The availability of this alternative remedy is an important consideration which this Court may take in account in determining whether judicial review is an appropriate remedy in the circumstances.

4 I have read all of the papers including the legal submissions and I have listened carefully to the oral arguments submitted by both sides.

5 In cases such as this it is important to remember that this Court is not here to substitute its view of the facts for that of the Commissioner. If the applicant's complaint is concerned only with the outcome or the decision of the Commissioner she must confine herself to the appeal process. It is only if the challenge to the Commissioner's decision goes to jurisdiction (i.e. if it is illegal or contrary to legislation) or a failure to apply fair procedures that judicial review might be available. In judicial review proceedings the court focuses on the process of the investigation and provided this was carried out properly and with due regard to fair procedures the court will not interfere. Specifically, the court will not substitute its view for that of the Commissioner who is appointed as an expert and who has conducted the interview. To succeed at the leave stage in judicial review the applicant must prove to the court that there are substantial grounds why such leave should be granted in this case.

Factual Background

6 The applicant is a Nigerian national who left her country of origin on the 9 ^th May, 2006 and arrived in the State on the 10 ^th May, 2006. She entered the State illegally, and she had not applied for asylum anywhere else en route to this State. She applied for asylum on the 11 ^th May, 2006. She completed a questionnaire on the 16 ^th May, 2006.

7 The applicant is a 29 year old woman, she is a Muslim and a member of the Yoruba tribe. She was married by religious rite on the 16 ^th December, 2005. Her husband came with her to Ireland. Her parents are still alive, and they and her three siblings still live in Nigeria. The applicant attended University and has a BA in History which she completed in September, 2001.

8 At question 22 of the questionnaire, the applicant stated that she was claiming asylum because of religion. At question 21, she stated that her problem began on the 14 ^thFebruary, 2000, when she first introduced her husband to her parents as the man she wanted to marry and they rejected him because they had already promised her to a chief priest. She stated that she did not report the matter to the police and that she had lived in a different part of Nigeria for seven months before travelling to this State. She did not have to pay for her trip to this State because she said it was arranged by the Mosque where she had sought help.

9 The applicant's interview under s. 11 of the Refugee Act 1996 (as amended) took place on the 8 ^th August, 2006, and the interview was conducted in English. The applicant was informed by letter dated the 15 ^th September, 2006 that she had been unsuccessful in her application.

The Commissioner's report pursuant to s. 13(1) of the Refugee Act 1996 (as amended).

10 The Commissioner identifies that the applicant's case is based on a stated fear of persecution in Nigeria because her parents insisted that she marry the chief oracle priest. In his conclusion the Commissioner states:-

"I am of the opinion that the applicant's claim lacks credibility. Therefore the benefit of the doubt cannot be offered in her case. On consideration of the facts of the case, taken with available country of origin information and the applicant's testimony, I conclude that the applicant does not have a well founded fear of persecution in Nigeria."

11 Accordingly he recommended that the applicant should not be declared a refugee under the legislation.

12 The twelve grounds upon which relief is sought are set out in the statement required to ground an application for judicial review but can be summarised under three headings as the applicant has done in the written submissions filed with the court:

13 1. Want of fair procedures;

14 2. Want of basis for recommendation;

15 3. Absence of reasons.

1. Want of Fair Procedures

16 The applicant in particular alleges that the Commissioner did not put all relevant matters to the applicant and relies on observations of Clarke J. in I. (v.) v. Minister for Justice, Equality and Law Reform & Anor [2005] IEHC 150 wherein he states that even in inquisitorial bodies, persons who may be effected by a decision of such bodies must be afforded a reasonable opportunity to know the matters which may be likely to effect the judgment of that body against an interest.

17 The Commissioner in his report indicated that there were a number of credibility and plausibility issues which undermined the applicant's case. He specifically referred to the fact that the applicant stated that neither she nor her husband reported their problem to the Nigerian police and that they had made no attempt to avail of the protection of the authorities because, the applicant claimed, the police worked in favour of the chief priest who was a powerful man. He concluded that the applicant failed to submit any evidence to support this belief and failed to credibly show that the authorities in Nigeria would not have provided her and her husband with suitable protection or that the authorities would not have attempted to satisfactorily investigate serious threats to her life and her husband's life had they been informed. The Commissioner also found it implausible that the applicant's husband remained in the area until October, 2005 even though he knew of the threat from the chief oracle priest in February, 2000. The Commissioner found it difficult to accept that the applicant would not report to or seek assistance from the police, especially because of the applicant's allegation that she was forced to have an abortion in 2002 and that her husband's father was killed and his house partially burned down and that he (her husband) was severely beaten and hospitalised for three weeks in July, 2002. The Commissioner rejected as implausible the evidence given that the Iman at the Mosque where she took refuge before fleeing the country would have the resources to provide food and accommodation for her and her husband for seven months and eventually pay for the flights for both to Ireland. Moreover, the Commissioner found that the applicant did not submit any credible evidence to support her claim that the chief oracle priest had influential connections with the police.

18 It is my view that the Commissioner had sufficient grounds to come to the conclusions that he came to on the credibility issues. The one issue that gives me cause for some concern is the rejection by the Commissioner on implausibility grounds of the applicant's allegation that the Imam in the Mosque supported her and her husband for seven months and provided all the expenses in relation to travel and flights for them to come to Ireland. Perhaps the Commissioner should have put his doubts on this matter to the applicant to enable her to elaborate or provide corroboration of her statement in this regard. In view of the other reasons, however, given by the Commissioner doubting her account the failure by him in this specific instance does not materially disturb or undermine his overall conclusion on her credibility.

19 With regard to the allegation that these specific matters were not put to the applicant at the hearing one must...