U.I. v Refugee Appeals Tribunal and Others

JurisdictionIreland
JudgeMr. Justice Roderick Murphy
Judgment Date23 January 2007
Neutral Citation[2007] IEHC 72
Docket NumberNo. 731 J.R./2005
CourtHigh Court
Date23 January 2007
I (U) v REFUGEE APPEALS TRIBUNAL & ORS
JUDICIAL REVIEW
IN THE MATTER OF THE REFUGEE ACT, 1996 (AS AMENDED)
IN THE MATTER OF THE IMMIGRATION ACT, 1999 (AS AMENDED)
IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING)
ACT, 2000 (AS AMENDED)
AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN
RIGHTS ACT, 2003, SECTION 3(1)
BETWEEN/
U.I.
APPLICANT

AND

REFUGEE APPEALS TRIBUNAL THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM ATTORNEY GENERAL IRELAND
RESPONDENTS

AND

HUMAN RIGHTS COMMISSION
NOTICE PARTY

[2007] IEHC 72

No. 731 J.R./2005

THE HIGH COURT

Mr. Justice Roderick Murphy
1

The applicant, a national of Nigeria and of Igbo ethnicity arrived in Ireland on 7th October, 2002. He applied for asylum and on 23rd December, 2002, just four years ago, he was called for interview by the Office of Refugee Applications Commission but, being ill and having supplied a doctor's letter dated 4th December, did not attend.

2

He was subsequently interviewed by the Refugee Applications Commissioner. He told them that he had been pressurised on his father's death in February, 2002 to take over his father's kingship of his village. He refused on the basis of necessary rituals involving human sacrifice. He and his family were threatened. On the death of his and his wife's two sons, they fled to his wife's sister's village but were located there by his villagers on 19th August, 2002. His wife was assaulted and in an attempted abduction, miscarried and received injuries to her arms and legs for which she was hospitalised. With the aid of a Catholic priest both fled Nigeria leaving three surviving children in the care of his wife's sister.

3

By decision dated 18th September, 2003 he was refused asylum status.

4

The applicant appealed to the Tribunal, the first named respondent, and on 21st June, 2005 the Tribunal decided, having examined the background information, the evidence relating to subjectively and objectively well founded fear of persecution, the evaluation of the applicant's evidence and of persecutory risk to dismiss the appeal.

5

The Tribunal made six findings adverse to the applicant.

6

1) "The essentially incongruous element which negates the Applicant's well-founded fear in relation to harm being inflicted because of his refusal to comply with local demands for human sacrifice, is the applicant's reaction or inaction to the supposed threat… the Applicant had at least fifteen years notice of the likely hostility of the village elders to his stance… he did not leave the place where he had been threatened" (page 4 of the Decision).

7

2) "He did not bring the bodies of his sons to a doctor or to a hospital. It is, in the view of the Tribunal, stretching credibility to its limits to accept that the applicant would not seek to ascertain why his sons died" (top of page 5 of the Decision).

8

3) "The Applicant fled to his wife's sister's house in July 2002. He stayed for two months. When the applicant ultimately left the country in October 2002 he left his remaining three children behind in Nigeria. The Tribunal regards this assertion as essentially defeating a well-founded subjective fear, given the Applicant's personal history and his belief that his first two sons were killed" (page 5).

9

4) The Applicant's credibility is further undermined when he states that in Oyo State, to which he fled with his family, the Applicant lived in a separate house to his wife and children" (also page 5).

10

5) "The remarkable matter about this aspect of the Applicant's account is that he did report an assault which he had not witnessed to the police whereas he did not report the "assault - if such it was - of his sons" (also page 5).

11

6) "The account given by the Applicant of a fortuitous meeting through his wife's in-laws with a priest who arranged for his departure from Nigeria tends to be implausible and to lack credibility" (bottom of page 5).

12

The Tribunal declared:

"Having considered the evidence of the applicant and having considered the submissions of the applicant's legal representatives and the material submitted on behalf of the applicant and on behalf of the Refugee Applications Commissioner, I am of the view that the applicant does not hold a well founded fear of persecution for a reason set out in section 2 of the Refugee Act,1996 (as amended). I find the applicant's account unsatisfactory in terms of credibility and substance. Accordingly, I would affirm the findings of the Refugee Applications Commissioner at first instance and dismiss the applicant's appeal."

13

The applicant seeks to review and quash that decision and have ade novo appeal. He also seeks a declaration that the refusal .and affirmation of the recommendation of the Commissioner is ultra vires; that the rule of law governing the scope of judicial review relating to asylum decision set out in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 is incompatible with the European Convention on Human Rights; that the Tribunal acted in breach thereof and that the decision was founded on an error of law; did not have regard to the principles of natural and constitutional justice and was irrational and unreasonable.

14

The applicant contends that the Tribunal failed to properly construe the meaning of "fear of persecution"; failed to determine the applicant's application for refugee status in a timely manner; failed to apply the appropriate standard of proof; erred in law in taking into account matters irrelevant to the determination of the appeal and that the decision contained "internal contradictions and errors".

15

Among other matters, the applicant says that the Tribunal failed to consider the applicant's explanations regarding his failure to report the deaths of his children to the police and the reasons he did not leave his village in earlier years and relied on personal conjecture.

16

2 4.1 The applicant filed submissions on 26th October, 2006 and supplemental submissions subsequently. It is submitted that the Tribunal, in assessing the credibility of the applicant, did not take account of or refer to all of the relevant material placed before it.

17

There was no indication that two SPIRASI reports, one in relation to the applicant, the other in relation to his wife, which contained material capable of substantiating the applicant's account and other country of origin information including a letter from Sr. Patricia O'Regan of the Diocesan Emigration Services was taken into consideration at all.

18

The decision recited that the Tribunal had "taken into account the country of origin information submitted by the Refugee Legal Service". The only country of origin information specifically adverted to in the decision is that fromwww.beaconschool.org. Counsel for the applicant submitted, having regard to the authorities, that it was not sufficient for the Tribunal to recite that it had taken into account such information without showing that it had considered it.

19

2 4.2 It was submitted, in addition, that there is an arguable case that the decision is internally flawed.

20

The Tribunal demonstrated an inconsistency when making what are mutually exclusive statements, in the same paragraph of its decision, as follows:

"The Applicant clearly stated … in his evidence to the Tribunal that the villagers came to him and threatened him when he was aged 20 or 22."

"The thrust of the Applicant's verbal evidence to the Tribunal is that … the village elders never reverted to him or bothered him in his father's lifetime."

and
21

2 4.3 There is no indication in the body of the decision that any explanation (or indeed any failure to give an explanation) on the part of the applicant in relation to matters that exercised the Tribunal Member's mind when assessing credibility was taken into consideration, by the Member, when making at least six adverse findings of credibility against the applicant.

22

3 4.4. In her submission, counsel for the applicant asked the court to consider three questions.

23

2 4.4.1 Firstly, if the Tribunal affirms the recommendation of the Commissioner, does it mean that each finding of the Commissioner is also affirmed or does the Tribunal have to deal separately with each finding it wishes to affirm? This point arose in the context of the Commissioner's finding, not explicitly affirmed by the Tribunal, that internal relocation was available to the applicant.

24

Section 13(1) of the Refugee Act,1996 provides that where the Commissioner carries out an investigation under s. 11 he or she must prepare a report in writing of the results of the investigation and "such report … shall set out the findingsof the Commissioner together with his or her recommendationwhether the applicant concerned should or, as the case may be, should not be declared to be a refugee [italics added]".

25

Section 16(2) provides that the Tribunal may, on appeal, either (a) affirm arecommendation of the Commissioner under section 13, or (b) set aside a recommendation of the Commissioner …[italics added]."

26

The applicant submits that the legislature has made a distinction between the findings to be made by the various investigative bodies and therecommendations made by them on foot of those findings. While the Tribunal therefore, on appeal, may affirm or set aside a recommendation of the Commissioner, it should, in doing so, make its own findings.

27

In this case the Commissioner made certain findings in relation to the applicant's claim. One of these was a finding that internal relocation was available to the applicant. The Tribunal did not advert to this aspect of the applicant's claim at all and made its findings solely on credibility issues. It is submitted that it is not therefore open to the court to find that in "affirming" the recommendation [incorrectly referred to as the "findings"] of the Commissioner, that the...

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