S.A.E. (Nigeria) v Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Mr. Justice Eagar |
| Judgment Date | 17 December 2015 |
| Neutral Citation | [2015] IEHC 815 |
| Docket Number | [2013 No. 674 J.R.] |
| Court | High Court |
| Date | 17 December 2015 |
[2015] IEHC 815
THE HIGH COURT
JUDICIAL REVIEW
Eagar J.
[2013 No. 674 J.R.]
Asylum, Immigration & Nationality – S. 13 (6) (c) of the Refugee Act 1996 – Papers-only appeal – Fear of persecution – Whether evidence of applicant credible
Facts: The applicant sought an order of certiorari for quashing the decision of the first named respondent affirming the recommendation of the second named respondent that the applicant should not be declared a refugee. The applicant contended that the first named respondent erred in law by not taking into account the entire evidence into record.
Mr. Justice Eagar granted an order of certiorari and quashed the decision of the first named respondent and directed that the applicant's appeal should be considered by a different member of the first named respondent. The Court held that the first named respondent's findings concerning failure to present travel document and disclose the identity of the persons threatening the applicant could not be sustained in law as the applicant presented adequate reasons for those failures. The Court observed that before making any adverse credibility findings, the decision-maker must assess the full picture of the circumstances.
This is a judgment in a telescoped hearing where the applicant seeks an order of certiorari of the decision of the Refugee Appeals Tribunal (hereinafter referred to as ‘the Tribunal’) dated 15th August, 2013.
The applicant is a forty-two year old national of Nigeria, who arrived in the State on the 5th January, 2013. He had completed his education to secondary school, having spent twelve years in formal education. He subsequently trained in motor spare parts and set up a business relating to same. His claim was that one of his employees, who he names as A.Y. travelled to Lagos in May 2012 with monies to buy different types of engines and motor parts but did not return. After two days the applicant reported his employee's disappearance to the police who investigated and discovered his body on the Lagos-Ibadan highway. The police informed the applicant that his employee had been killed by armed robbers. The applicant stated upon hearing this news the father of his employee collapsed and died before his family got him to the hospital.
The applicant claimed that A.Y.'s family blamed him for both deaths and called him on the telephone two weeks after A.Y's father died, threatening to kill him and informing him that they were members of Boko Haram, (an Islamic extremist group based in North Eastern Nigeria). The applicant claimed that members of A.Y.'s family called him on the telephone, morning, afternoon and at night. He reported the threats to the police and says he told them that when they asked for the telephone number used to make the telephone calls that it was ‘unknown’. The police said they would investigate. He did not inform the police of the identity of the callers who said they were members of the A.Y. family as he did not know them personally and they had called him on the unknown number.
He left his home in August 2012 and moved around to a number of locations, he claimed he was attacked in Minna by two people who hit him and he had run off. When he moved to Lagos he claims two people were looking at him suspiciously and hovering around him and he ran to a church which he did not leave until he left Nigeria.
The applicant claims his travel was arranged by a man to whom the pastor of the church introduced him and this man, Mr. A. arranged for him to come to Ireland. He claims he did not know how his travel was paid for. Mr. A. travelled with him to Ireland and then appears to have left him to his own devices. En-route to Ireland he claims that he did not know the nature of the travel documents which he used to pass through international airports and that Mr. A. kept them all the time, other than when they were passing through the airports. He arrived in the State on the 5th January, 2013.
The applicant, having arrived in the State on the 5th January, 2013 did not make an application for asylum until the 23rd May, 2013. The applicant contended that he was unaware of the asylum process. The Refugee Application Commissioner concluded that the applicant had not established a well-founded fear of persecution and the senior officer of the Refugee Application Commissioner recommended that s. 13(6)(c) of the Refugee Act 1996 (as amended) (hereinafter referred to as ‘the Act of 1996’) applied to the application. The net effect of this was that the applicant was confined to an appeal in writing only.
The first named respondent in the analysis of the applicants claim summarised the matters which this Court has summarised above.
He then quoted from para. 195 of the UNHCR Handbook on Procedures and Criteria for determining refugee status and para. 37 of same.
The first named respondent said there were a number of problematic inconsistencies in the applicant's evidence which undermines his credibility and thus questioned the legitimacy of his claim.
a. He claims to have travelled from Nigeria via Turkey to Ireland without paying for the journey or presenting documents to authorities in any of the three international airports he allegedly transited. The first named respondent said it was common knowledge that since ‘9/11’ security at all airports obliged passengers to provide a passport and he quoted a decision of Charlton J. which he does not identify. He then refers to a judgment of Clark J. in Flora Egharevba v. RAT [February 2008]. He quotes also from Clarke J. in Imoh v. RAT described as 2009 stating:
‘Procedures at Dublin Airport are known to all who travel through the area and this is not a matter of conjecture but fact’.
The first named respondent said that he had considered submissions on this matter and was satisfied that the evidence of his departure from Nigeria and arrival here undermines the applicant's credibility. He then indicated that submissions regarding the late application have been considered. The applicant claims to have arrived on the 5th January, 2013 but according to the tribunal member gave no plausible reason for failing to apply for status until 23rd May, 2013. The Tribunal referred to Law of Refugee Status by Hathaway & Foster (Cambridge University Press, 2014, 2nd Edition):
‘If one is truly fleeing persecution and fails to seek international protection as soon as possible such conduct can go to their credibility.’
The first named respondent finished by saying:
‘The effect cumulatively of the member's observations as to the applicant's credibility is such as to render the unsubstantive thrust of his application incapable of being believed.’
The first named respondent decided that he could not afford the applicant the benefit of the doubt. He further stated that in referring to Imafu v. MJELR [2005] IEHC 416, dated 9th December, 2005. Peart J. stated:
‘in my view the decision in Horvath and of Daniel Pannick QC in Ahmed could not be extended to mean that in every case no matter how unbelievable the applicant is found to be on the “pure credible” issue, the...
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