A (U O)[Nigeria] v Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Ms. Justice Stewart |
| Judgment Date | 19 March 2015 |
| Neutral Citation | [2015] IEHC 179 |
| Court | High Court |
| Date | 19 March 2015 |
[2015] IEHC 179
THE HIGH COURT
BETWEEN
AND
AND
Asylum – Immigration & Nationality – Refugee Appeals Tribunal – Judicial Review – Refusal of asylum claim – Fear of persecution.
Facts: The applicant sought an order for extension of time for the judicial review application. The applicant by way of the judicial review challenged the order of the Refugee Appeals Tribunal denying the Refugee status to the applicant.
Ms. Justice Stewart granted an order for extension of time to bring the judicial review application in the case. The Court refused to grant leave to the applicant for challenging the order of the Refugee Appeals Tribunal. The Court found that Refugee Appeals Tribunal rightly observed that the fear of discrimination as alleged by the applicant had no real and cogent basis in the country of origin. The Court held that though the applicant suffers from learning and language difficulties but not to the extent of fear of being persecuted in the country of the origin that would warrant the need for international protection.
1. At the outset of the hearing counsel for the applicant submitted an affidavit of the next friend of the applicant to ground an application for a certificate granting leave to the applicant to proceed in his own name as the applicant had now reached the age of majority. Leave was granted and the telescoped hearing proceeded on the basis of the applicant taking the case in his own name.
2. The application was outside the 14 days permissible to initiate judicial review proceedings of the decision of the Refugee Appeals Tribunal. The applicant provided the reasons for the delay as follows: an application was made to the Minister by letter dated 26 th October, 2010, requesting the Minister to exercise his discretion to grant the applicant a declaration of refugee status, notwithstanding the negative decision of the Refugee Appeals Tribunal made against the applicant. The applicant submitted that the statutory scheme under s.17 of the Refugee Act 1996 (as amended) is such that if an applicant is refused a grant of refugee status by the Office of the Refugee Applications Commissioner (ORAC) and the Refugee Appeals Tribunal (RAT), the Minister has a discretion to grant such a status, notwithstanding the negative findings of the ORAC and RAT. The applicant's legal representatives operated on the basis that the applicant had an entitlement to seek the Minister to review his case and consider granting him legal status. It was subsequently decided by the High Court in the case of O.S. & anor. v. Minister for Justice, Equality and Law Reform [2011] IEHC 291 that the Minister has no obligation to consider such an application.
3. By letter dated 2 nd November, 2010, the applicant's legal representations wrote to the Minister and the RAT stating that in light of the application seeking the Minister to exercise his discretion in this case, judicial review proceedings would not be initiated by the applicant at that time. The letter further went on to state that it would be unreasonable for the Minister or the RAT to raise objections to the necessary extension of time at a later date. By letter dated 8 th November, 2010, the Minister acknowledged receipt of the letter. No further correspondence was received from the Minister in regard to the extension of time. By letter dated 3 rd November, 2010, the RAT stated that the tribunal was functus officio in the matter.
4. In this regard the respondent states that the applicant is obliged to bring proceedings in a timely manner. The decision had issued and the time to challenge that decision had passed. The respondent asserts that the applicant is obliged to challenge the decision in the timeframe set down in the statutory framework.
5. The applicant's legal representatives had sent two letters to the Minister, the first of which did not receive any response. The applicant had asked for a response to the issue regarding the potential objection to an extension of time. There was a view at the time that the Minister had such a discretion and it was not unreasonable for the applicant legal representatives to hold such a view. Clarification was needed of this issue by way of a High Court decision and this was provided in the O.S case (supra). By letter dated 20 th May, 2011, the Minister stated that he is not obliged to take account of subsequent representations made on behalf of the applicant after the tribunal decision, and stated that the Minister found no reason to overturn that decision.
6. In the circumstances, I am satisfied that good and sufficient reasons have been set out by the applicant such as to warrant an order to extend the time for the bringing of the judicial review leave application in this case and I so extend the time.
7. The applicant was born on 6 th August, 1994, in Nigeria. The applicant's mother, a Muslim, married the applicant's father, a Christian, in 1992. The applicant's mother applied for asylum on 14 th March, 2000, in Ireland and his father on 15 th May, 2000, also in Ireland. Both applications were refused by the ORAC and the RAT.
8. The applicant was a minor at the time of the s.11 interview and was represented by his father at the interviews and at the oral hearing. The applicant stated (via his father) that he, his brother and sister were in their house when their parents were attending church. He stated that the house was burnt by a group of Muslims, the applicant's siblings both died and the applicant suffered burns as a result. The applicant stated that if he is returned to Nigeria he would face persecution because he is the son of a mixed religious marriage and would suffer discrimination because of his disabilities. The applicant has been diagnosed with intellectual and learning difficulties, microcephaly and expressive and receptive language difficulties.
9. The applicant arrived in Ireland on 2 nd October, 2000. His parents were already present in Ireland and had applied for asylum on their own behalf. An asylum application was submitted on behalf of the applicant on the 14 th March, 2000, and was considered as part of his mother's asylum application. The applicant's father initiated judicial review proceedings on behalf of the minor applicant and on foot of those proceedings by letter dated 7 th June, 2007, the ORAC agreed to undertake an independent investigation of the applicant's claim. On 11 th July, 2007, the applicant completed a questionnaire and was interviewed on 16 th July, 2007, in accordance with s.11 of the Refugee Act 1996 (as amended). A report pursuant to s.13 of the Act issued in respect of the applicant and was dated 16 th August, 2007. The s.13 report recommended that the applicant should not be declared a refugee for reasons of credibility and a lack of a Convention nexus. The applicant appealed to the RAT and the appeal hearing took place on 10 th May, 2010.
10. By decision dated 6 th September, 2010, and cover letter dated 11 th October, 2010, the RAT affirmed the recommendation of ORAC not to declare the applicant a refugee. The tribunal accepted that the applicant could potentially face discrimination in Nigeria because of his disabilities however the tribunal found that this did not amount to persecution in the Convention sense. The tribunal member also pointed to country of origin information and highlighted...
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