O (S)(Nigeria) v Min for Justice and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Eagar |
| Judgment Date | 17 September 2015 |
| Neutral Citation | [2015] IEHC 571 |
| Court | High Court |
| Date | 17 September 2015 |
[2015] IEHC 571
THE HIGH COURT
BETWEEN
AND
Asylum, Immigration & Nationality – The Refugee Act 1996 – Appeal against decision of Refugee Appeals Tribunal – Judicial review – Telescoped hearing – Council Directive 2004/83/EC – Fear of persecution – Availability of state protection – Adequacy of county of origin information – Lack of credibility
Facts: The applicant sought an order of certiorari for quashing the decision of the second named respondent affirming the decision of the Office of the Refugee Applications Commissioner that the applicant should not be declared a refugee. The applicant contended that the second named respondent had failed to assess the applicant's core claim objectively in light of the fact that his wife had been killed by members of the opposite community and the alleged attacks suffered by him and his children in the aftermath of that incident.
Mr. Justice Eagar refused to grant leave to seek judicial review of the decision of the second named respondent to the applicant. The Court held that the there were two facets to the issues of credibility, subjective and objective wherein the subjective fear of persecution for a Convention reason must be objectively assessed. The Court opined that the jurisdiction of the Courts was limited in judicial review to the extent of looking at the decision of the second named respondent as to whether it was fundamentally flawed. The Court found that the second named respondent had correctly applied the jurisprudence in relation to the credibility with specified reasons for each assertion and thus, the application of the applicant would be dismissed. The Court found that the inability of the applicant to tell the name of his children coupled with the contradiction in testimony concerning recognising the attackers of his wife, with the applicant hiding watching the voracious attack from behind, would definitely lead to undermine the credibility of the applicant.
JUDGMENT of Mr. Justice Eagar delivered on the 17th day of September, 2015
1. This is an application seeking of an order of certiorari in respect of the decision of the Refugee Appeals Tribunal (hereinafter referred to as "the RAT") to affirm the decision of the Office of the Refugee Applications Commissioner (hereinafter referred to as "the ORAC") that the applicant not be declared a refugee in accordance with section 2 of the Refugee Act 1996 (as amended) (hereinafter refereed to as 'the Act of 1996')
2. The relief sought are as follows:
a a. An order of certiorari quashing the decision of the second named respondent pursuant to s. 16(2) of the Act of 1996, dated 6 th November 2012 affirming the decision of the Refugee Applications Commission (hereinafter referred to as "the Commissioner") that the applicant should not be declared a refugee.
b b. A declaration that s.5(2) of the Illegal Immigrants (Trafficking) Act 2000 (hereinafter referred to as "the Act of 2000") is not in compliance with the principles of equivalence and effectiveness under EU law.
c c. Such further or other order as this Court may deem meet, including an extension of time if necessary.
3. The grounds on which relief are sought are as follows:
a a. The refusal of the applicant's appeal appears to have been based upon the finding that there was no evidence of a lack of state protection in Nigeria in relation to the matter complained of and that the failure to satisfy one of the criteria resulted in the failure to establish a successful claim of refugee status. However this decision is alleged to have been reached in disregard of extensive evidence of a lack of effective state protection put forward in the applicant's appeal. The treatment of the question of state protection by the Tribunal was allegedly, irrational and internally contradictory.
b b. The Tribunal is alleged to have failed to have due regard to the applicant's notice of appeal and country of origin information submitted therewith. The notice of appeal was not given due attention and matters raised therein relating to the applicant's credibility and the availability were not addressed. Furthermore, it is advanced that the decision was based upon a clear mistake of fact of such seriousness as to amount to a mistake of law.
c c. Insofar as the refusal of the applicant's appeal has been argued to have been based upon findings of lack of credibility, such findings are allegedly insufficient to ground a refusal of the applicant's claim where some core elements of the applicant's claim have not been deemed either credible or incredible by the Tribunal.
d d. Credibility findings were not based on the applicant's core claim. Matters such as the precise date of the applicant's marriage or dates of birth of his children were irrelevant, unless it was suggested that the applicant, for example, was not married or had no children, but this was not stated. In this regard irrationality was alleged and / or a failure to provide reasons.
e e. It is further irrational, in light of the stated knowledge of the decision maker of Boko Haram, for the Tribunal member to speculate, as was done, that the attack on the church as described by the applicant in northern Nigeria and attributed by him to Boko Haram was perpetrated by persons other than members of that organisation. This speculation on the part of the decision maker, without some level of objective evidence that car bombings on Christian churches in northern Nigeria are habitually or sometimes carried out by criminals or other organisations unconnected to Boko Haram is disingenuous and constitutes a failure to have regard to objective evidence as presented by the applicant in his appeal and is also argued to breach the obligations placed upon decision makers by the European Communities (Eligibility for Protection) Regulations 2006.
f f. The contested decision is further irrational in that it appears to have been assumed by the decision maker that the persons who murdered his wife searched the apartment looking for him, thinking he was there. No such evidence was proposed by the applicant. It is further irrational to have concluded that "the Applicant's claimed persecution is undermined by virtue of the fact that he was able to evade his alleged persecutors during his time in the Delta". This was irrelevant in the context of the applicant's claim of suffering persecution. Similar comments apply in relation to the applicant's time in Lagos.
g g. The applicant is entitled to a decision which is coherent and form the terms of which he (and others, including the first respondent) can discern the reason and rationale behind the refusal. In breach of this entitlement it is entirely unclear what aspects of the applicant's claim were believed and what aspects were not. There is an obligation on the decision maker to consider Article 5 (2) of Communities (Eligibility for Protection) Regulations 2006 which appears to have been ignored.
h h. The Tribunal failed to objectively assess the applicant's appeal in light of independent and up to date country of origin information. Article 4 of Council Directive 2004/83/EC (the Qualification Directive) mandates that the Refugee Appeals Tribunal must taking into account all relevant facts as they relate to the country or origin at the time of making a decision on the application. It is argued that there was no compliance with Council Directive 2005/85/EC (the Procedures Directive) and / or the Qualifications Directive in this regard. There was allegedly no proper objective analysis of the applicant's claim. The failure to comply with the required minimum standards arguably renders the decision invalid.
i i. S. 5 of the Act of 2000' is not in compliance with the principles of equivalence and effectiveness. In accordance with this EU Law principle, time, for the purposes of the limitation period produced for under s. 5 of the Act of 2000 and Order 84 Rule 21 (1), Superior Courts Rules time cannot begin to run against the applicant until such time as Council Directive 2005/85/EC has been implemented by the State.
4. The statement of grounds was grounded in the affidavit of the applicant, S.O., sworn on 7 th January 2012. The applicant avers that he applied for asylum in the State. He stated that the findings of the Refugee Applications Commissioner ("hereinafter referred to as "the Commissioner") were appealed to the Tribunal. On or about the 20 th November, 2012 the applicant swears that he received a letter enclosing copy of the negative decision of the Tribunal dated 6 th November 2012, that the applicant not be declared a refugee in accordance with s. 13 of the Act of 1996.
5. The hearing of the Tribunal took place on 25 th October, 2012. The report notes that the applicant's claim was founded on having a well-founded fear of persecution on the grounds of race, religion and political opinion as contained in the form 1 notice of appeal and the submissions therein, the country of origin supporting documentation, supporting documentary evidence and the submission outlined at the oral appeal.
6. In respect of the applicant's claim the report noted that the applicant presented as a 42 year old Nigerian national who had to leave his home country.
7. The applicant was born on 1 st June, 1970 in Delta State. He is Christian. He finished secondary school in 1998 at the age of 17 or 18 and has worked in the mobile phone industry. The applicant had two children...
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