E.S.O. v The International Protection Office and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 24 April 2023
• Neutral Citation: [2023] IEHC 197
• Docket Number: [Record No.: 2022/778 JR]
• Court: High Court

Between:

E.S.O.

Applicant

and

The International Protection Office, The Minister for Justice and Equality, Ireland and The Attorney General

Respondents

[2023] IEHC 197

[Record No.: 2022/778 JR]

HIGH COURT

International protection – Refugee status – Fear of persecution – Applicant challenging a first instance decision of the first respondent to make a recommendation that both refugee and international protection status should be refused – Whether the first respondent failed to properly consider distinct elements of the applicant’s claim

Facts: The applicant, a Nigerian national, applied for refugee status in the State on the 29th of December, 2021 on the basis of a claimed fear of persecution and serious harm in Nigeria arising from his support of and membership of a group known as the Indigenous People of Biafra (IPOB) and a branch of that group known as the Eastern Security Network (ESN). The applicant applied to the High Court challenging a first instance decision of the first respondent, the International Protection Office, to make a recommendation pursuant to s. 39(3) of the International Protection Act 2015 that both refugee and international protection status should be refused. An appeal against that refusal recommendation was lodged with the International Protection Appeals Tribunal (the IPAT) without prejudice to the proceedings by way of judicial review. At the heart of the applicant’s complaint was an asserted failure on the part of the first respondent to properly consider distinct elements of his claim. Specifically, it was complained that the application for protection status was grounded both on his membership and leadership of identified political groupings in Nigeria without separate findings being made in respect of each.

Held by Phelan J that the errors alleged by the applicant, which flowed from a failure to clearly articulate distinct findings in respect of both membership and leadership claims, were not so fundamental as to have deprived the first respondent of jurisdiction in a manner which would warrant intervention by way of judicial review. Phelan J held that on a proper framing of the distinct elements of the claim identified for assessment, consideration of country of origin (COI) in relation to the risk arising from membership of IPOB and the ESN, the matters identified on behalf of the applicant to ground the proceedings could be addressed during the currency of an oral appeal hearing but in circumstance where the application could also be determined on its merits. Phelan J held that other issues arising in relation to translation, the absence of an opportunity to respond to issues which were not notified to the applicant and the weight to be attached to distinct elements of COI relevant to the claims and the test to be applied could also be fully addressed on an appeal, in a way that could not be achieved in judicial review proceedings. As the system for managing refugee applications contained its own appeal mechanism and that appeal was fully capable of correcting each of the identified errors in this case, Phelan J was satisfied that the IPAT provided an adequate alternative and more appropriate remedy in this case in the light of the issues raised and their merit. Phelan J was also satisfied that there was no imperative of justice or fairness which would require relief by way of judicial review.

Phelan J held that, although some frailty had been identified with a first instance decision in this case, such frailty could adequately be addressed in an appeal to the IPAT without risk of injustice to the applicant. Phelan J held that this was not an exceptional case warranting an order of certiorari of the first instance decision. Accordingly, Phelan J refused the relief sought and dismissed the application.

Application refused.

JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 24 ^th day of April, 2023

INTRODUCTION

1 . In these proceedings the Applicant challenges a first instance decision of the First Respondent to make a recommendation pursuant to s. 39(3) of the International Protection Act, 2015 [hereinafter “the 2015 Act”] that both refugee and international protection status should be refused. An appeal against this refusal recommendation has been lodged with the International Protection Appeals Tribunal (hereinafter “the IPAT”) without prejudice to the within proceedings by way of judicial review. At the heart of the Applicant's complaint is an asserted failure on the part of the First Respondent to properly consider distinct elements of his claim. Specifically, it is complained that the application for protection status was grounded both on his membership and leadership of identified political groupings in Nigeria without separate findings being made in respect of each.

BACKGROUND

2 . The Applicant is a Nigerian national who applied for refugee status in the State on the 29 ^th of December, 2021 on the basis of a claimed fear of persecution and serious harm in Nigeria arising from his support of and membership of a group known as the Indigenous People of Biafra (hereinafter “IPOB”) and a branch of that group known as the Eastern Security Network (hereinafter “ESN”). The Applicant stated that he had been a member of the IPOB, a proscribed terrorist organisation in Nigeria, for three years prior to his departure and that two years earlier he had become involved as a leader of the ESN, a branch of IPOB formed to deal with Fulani herdsmen attacks. He claimed to have become a leader in the ESN and as a result his name is on a wanted list with the Nigerian Joint Task Force.

3 . In the IPO Questionnaire completed by the Applicant in support of his application for international protection, he claimed that his life was in danger because of his membership of IPOB and his leadership position with the ESN. The following exchange is recorded as having occurred at interview:

“Q. 16 Can you tell me in your own words why you are seeking international protection here in Ireland?

A. The reason I am looking to stay in the country is because the army in Nigeria is looking for me because I am a member of IPOB, I am a leader.

Q.17 What is it you fear specifically about returning to Nigeria?

A. If I go back to Nigeria, they will kill me, because my name is on the wanted list of people marked for them to kill.

Q.18 Can you tell me why your name is on the wanted list?

A. Because I am a member of IPOB, I am a leader and the Fulani people are trying to take over our land. They are looking for me and want to kill me because of this that is why I ran away. They shot my father.”

4 . It is clear therefore from the terms of his responses both in his original questionnaire and during interview that the Applicant claimed a fear of persecution and risk of harm not only because of his leadership position but arising from his membership of these organisations.

DECISION

5 . In the Report prepared on behalf of the First Respondent pursuant to s. 39 of the 2015 Act grounding the refusal recommendation, the Applicant's claim is summarised as follows:

“The applicant claims that he is a member of the Indigenous People of Biafra (IPOB) for 3 years. 2 years ago he became involved as a leader of the Eastern Security Network (ESN), a branch of IPOB originally formed to deal with Fulani herdsmen attacks.

The applicant claims that because he is a leader in the ESN his name is on a wanted list and as a result the Nigerian Joint Task Force (JFN)”

6 . The Report goes into some detail in the consideration of the Applicant's credibility (at pages 5 and 6). References are made to particular replies he gave in his s. 35 interview and references are also made to various COI reports. It is noted in the Report that for two of the three years of the Applicant's involvement with the IPOB, he claims to have been a leader but the decision-maker found that he was vague and often lacking in detail when answering questions about his claim.

7 . The decision-maker gives a number of examples of inconsistencies in his account:

• (i) He stated that he knew the Nigerian army were looking for his because they burnt down his house; later he stated that he had been hiding for 6 months because he knew they were looking for him.

• (ii) He then stated that his problems with the Nigerian army started up to a year ago.

• (iii) The decision-maker quotes from a COI report of Africa Centre for Strategic Studies, which stated that “ Nigerian security forces and ESN have clashed in a series of skirmishes in 2021 that have resulted in the deaths of several civilians in what has become known as the Orlu crisis. ESN has inflamed tensions by killing police officers at checkpoints in several locations in the South East.” The decision-maker finds that in the light of this information, it was not credible that the Applicant would only have involvement in searching the bush for Fulani and not mention any engagement with Fulani herdsmen to drive them away.

8 . The Report records that the Applicant's nationality and personal circumstances were accepted but his claim to be on a wanted list due to his involvement with IPOB and the ESN was not accepted:

“given the applicant's inconsistency and vagueness, and the credibility issues mentioned above”.

9 . The Report further records under the heading “ Credibility” as follows:

“In accordance with s. 28 of the International Protection Act 2015, I have assessed the credibility of the applicant's claim having had regard to all relevant matters. The material facts of the applicant's claim are as follows:

The applicant's nationality and personal circumstances;

The applicant was on a wanted list due to his involvement with the IPOB and the ESN.”

10 . Accordingly, the only accepted facts relied upon in considering the claim of persecution and real risk of serious harm were:

“The applicant's nationality and relevant...