O (A S) v Refugee Appeals Tribunal & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 09 December 2009
• Neutral Citation: [2009] IEHC 607
• Docket Number: [No. 493 J.R./2007]
• Court: High Court
• Date: 09 December 2009

[2009] IEHC 607

THE HIGH COURT

[No. 493 J.R./2007]

O (A S) v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

BETWEEN/

A. S. O.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S16(8)

REFUGEE ACT 1996 S11B

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 2

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

REFUGEE ACT 1996 S16

REFUGEE ACT 1996 S17(1)

REFUGEE ACT 1996 S17(1)(B)

REFUGEE ACT 1996 S16(17)(B)

IMMIGRATION LAW

Asylum

Availability of state protection - Country of origin information - Finding of availability of State protection - Fear of persecution - Section 13 report made negative recommendation based on lack of credibility - No specific finding on issue of credibility by tribunal - Whether account of persecution accepted or rejected - Whether decision of tribunal wrong in law - Whether inadequate and flawed consideration of evidence - Whether partial and selective appraisal of country of origin information - Whether applicant afforded adequate opportunity to comment or rebut on country of origin information - Whether process by which finding as to availability of State protection flawed - Onus of proof as to unavailability of internal relocation - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), regs 2 and 7 - Refugee Act 1996 (No 17), ss 13, 16 and 17 - Certiorari granted (2007/493JR - Cooke J - 9/12/2009) [2009] IEHC 607

O (A S) v Refugee Appeals Tribunal

Facts: The applicant, who alleged that she had fled Nigeria, had been given leave to obtain an order of certiorari of an adverse decision of the respondent refusing her refugee status. A number of specific findings had been made doubting the credibility of the applicant. However, the contested decision contained no specific finding on the issue of credibility. The respondent had made crucial findings as to State protection on the basis of certain country of origin information that the applicant alleged that she had not been given an opportunity to rebut the contents thereof. Further issues arose as to alleged findings of the respondent as to relocation.

Held by Cooke J. That it was unsatisfactory that there would be an outcome to an appeal before the Tribunal which presented the Minister with an unexplained discrepancy between the basis upon which the Commissioner had made a negative recommendation and the different ground upon which it was affirmed by the Tribunal. This was not compatible with the clarity of explanation and transparency of decision making expected of asylum procedures. The failure to state whether the account of suffered persecution or threats of serious harm had been accepted or rejected could create disadvantages for the applicant at later stages. In the courts view, where a section 13 report made a negative recommendation based upon detailed or cogent findings of lack of credibility, it was undesirable where where was an oral hearing on appeal that the issue of credibility would be left without a specific comment in the decision. The Court would order certiorari to quash the decision for the reasons given.

Reporter: E.F.

Mr. Justice Cooke

1 1. By order of 27^th May, 2009 this Court granted leave to the applicant to make the present application for judicial review of a decision of the first named respondent dated 20^th March, 2007 ("the Contested Decision") which had affirmed a report of the Refugee Appeals Commissioner under s. 13 of the Refugee Act 1996 recommending that the applicant should not be declared to be a refugee.

2 2. The single ground upon which leave was granted to seek an order of certiorari in respect of the Contested Decision was as follows:

"The decision of the Tribunal of 20^th March, 2007 was wrong in law in that the finding of the availability to the applicant of State protection was reached on the basis of an inadequate and flawed consideration of the evidence to that effect which was before the Tribunal and, in particular, was made upon a partial and selective appraisal of country of origin information including two items of such information in respect of which the applicant had not been afforded an adequate opportunity to comment or rebut, contrary to s. 16(8) of the Refugee Act 1996 and in breach of her entitlement to a fair procedure in the making of the decision."

3 3. The background to the application for refugee status can be briefly summarised as follows. The applicant fled Nigeria, her country of origin, and claimed asylum in the State on 31^st July, 2006. She claims that she was forced to flee in order to evade attacks and threats that she would be killed by creditors of her late father. He had been a thrift collector and money lender and at his death three particular creditors had claimed that he owed them substantial sums of money which they looked to the applicant to repay. The applicant could not gain access to the account in which her father had held the money with Hallmark Bank and that bank subsequently failed. She claimed that at the instigation of the three creditors in question she had been attacked and threatened; her house had been set fire to in 2006 and one of her children died as a result. She further claimed that at the behest of the creditors she herself had been kidnapped by a group known as the Oodua People's Congress ("OPC") and detained by them for five days. She says she convinced them that she had no money and managed to obtain her release. She says that she reported the kidnapping to the police but claims that they were unwilling to pursue the matter as they believe that the creditors were owed the money. Furthermore, although the police arrived at the scene of the house fire, she claims that the death of her daughter was never investigated or pursued.

4 4. In the section 13 Report dated 14^th August, 2006, the authorised officer of the Commissioner sets out the background to the above claim and the history of events leading to the flight from Nigeria in greater detail. The personal history of the threats and attacks and their causes is then examined in some detail and the story is found to be incredible. In particular, a number of specific findings in that regard are made as follows:

5 (a) It is found incredible that the applicant's father would have conducted business in the way described and that at the time of his death in a car crash he would have had a total of 300,000 naira out on loan while having 7.8 million naira unused in a bank account;

6 (b) The involvement of the failure of the Hallmark Bank as a cause of the difficulties is also considered incredible;

7 (c) The officer doubts the truth of the claim that her house was destroyed by fire, that her daughter died in the fire and that the police were unwilling to investigate it;

8 (d) The notion that a particular creditor would have sought to kill the applicant when she was his only means of gaining access to the father's deposits with Hallmark Bank is found incredible.

9 The officer concludes:

"For the reasons set out above which undermine the credibility of the applicant's claim, it is not credible that the applicant would experience persecution were she to return to Nigeria."

10 5. It is thus clear that the Commissioner's officer arrived at the negative recommendation in this case upon the basis that the entire substance of the applicant's claim to a fear of persecution was not believed. Even insofar as the officer includes a subsidiary conclusion to the effect that State protection would have been available she clearly does so on the basis that she believes police protection and investigation was never actually sought as the applicant claimed, because country of origin information confirms that the incidents in question were the types of crime that the Nigerian police will investigate. In this regard, the present case can be distinguished from others emanating from Nigeria where the fear of persecution is based upon the absence of state protection against threats of violence and ritual sacrifice carried out by traditional cults which are frequently claimed to be ignored by the authorities.

11 6. As mentioned, the section 13 Report and negative recommendation were appealed to the Tribunal and in the notice of appeal the Commissioner's assessment of credibility was expressly challenged.

12 7. In the Contested Decision, the Tribunal...