O (U) v Minister for Justice & Refugee Applications Commissioner
|Mr. Justice Cooke
|09 October 2009
| IEHC 451
|09 October 2009
 IEHC 451
THE HIGH COURT
REFUGEE ACT 1996 S13
kAYODE v RAC UNREP SUPREME 29.1.2009 (EXTEMPORE)
O(F) v MIN FOR JUSTICE & ORS UNREP COOKE 26.6.2009 2009 IEHC 300
RADZUIK v MIN FOR JUSTICE & ORS UNREP COOKE 29.7.2009
E(AE) & E(OP) v RAT & ORS UNREP MCMAHON 16.1.2009 2009 IEHC 5
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGULATIONS 2006 SI 518/2006 REG 5(1)
Leave for judicial review - Alternative remedy - First instance decision - Appeal commenced but left in abeyance - Alleged failure to consider core claim - Negative credibility findings - Country of origin information - State protection -Internal relocation - Whether asserted errors in decision could be remedied on appeal - O (F) v MJELR  IEHC 300 (Unrep, Cooke J, 26/6/2009), R (I) v MJELR  IEHC 353 (Unrep, Cooke J, 24/7/2009) and E (AE) v MJELR  IEHC 5 (Unrep, McMahon J, 16/1/2009) considered - European Communities (Eligibility for Protection) Regulations 2006 (SI518/2006), rr 3 and 5 - Refugee Act 1996 (No 17) s 16 - Leave refused (2007/159JR - Cooke J - 9/10/2009)  IEHC 451
O(U) v Minister for Justice, Equality and Law Reform
1. This is a further case in which leave is sought to apply for an order of certiorari and other reliefs by way of judicial review to quash a negative report and recommendation made by the Refugee Applications Commissioner under s. 13 of the Refugee Act 1996, in circumstances where an appeal to the Refugee Appeals Tribunal has been commenced in due time but left in abeyance pending the outcome of the present proceeding.
2. In a number of judgments delivered last term this Court reviewed the case law including the judgment of the Supreme Court in the Kayode case. In one of the more recent judgments F.O. v. Minister for Justice, Equality and Law Reform and Refugee Applications Commissioner  I.E.H.C. 300 on 26 th June, 2009, I endeavoured to state very briefly the criterion applicable to the issue of the alternative remedy of the statutory appeal in this way:
"It is now settled law that, consistently with the scheme and legislative intention of the 1996 Act, this Court should intervene to review a s. 13 report and recommendation of the Commissioner in advance of a decision on appeal by the R.A.T., only in the rare and exceptional circumstances where it is necessary to do so in order to rectify a material illegality in the report which is incapable of or unsuitable for rectification by the appeal; which will have continuing adverse consequences for the applicant independently of the appeal; or is such that it sought to be cured by the appeal, will have the effect that the issue or that some wrongly excluded evidence involved, will not be reheard but will be examined only for the first time on appeal."
3. Accordingly, at the outset of the hearing of this application, I invited counsel for the applicant to identify to the Court the particular features of the 18 illegalities alleged in the Statement of Grounds for which relief was to be sought that were alleged to constitute compelling reasons for the intervention of the Court by way of judicial review. To put it in the form of a question, the Court invited submissions as to why the grievances raised against the s. 13 report of 30 th January 2007, in the grounds to be advanced for relief, constituted fundamental errors of law which were incapable of or unsuitable for rectification by reconsideration of the application in the pending statutory appeal?
4. In a preliminary examination of the grounds in the Statement of Grounds, counsel for the applicant properly and correctly acknowledged that a number of them could not be said to raise issues going to the legality, as opposed to the quality, of the assessment contained in the report and which could not be cured or dealt with adequately in the statutory appeal. Counsel then addressed the issues covered in the remaining grounds in a series of submissions, which could be summarised as raising the following propositions:
The report's assessment of the claim to a fear of persecution is vitiated by a series of errors of fact and of law and by wrongful consideration of irrelevant matters.
The cumulative effect of these errors is that what is described as the applicant's "core claim" has not been considered at all. As a result, the authorised officer, as a "protection decision-maker" for the purposes of the European Communities (Eligibility for Protection) Regulations 2006, has failed to comply with the mandatory requirements of Regulation 5, so that no lawful "protection decision", in compliance with that regulation, has been made.
The applicant is entitled to a lawful decision, both at first instance before the authorised officer and, if necessary, on appeal before the Tribunal member.
The illegality is incapable of being remedied by the appeal because the core claim has not been addressed and will then only be considered on appeal for the first time.
5. The context in which these issues arise can be briefly described as follows. The applicant is a national of Nigeria, who is unmarried and who arrived in the State in October 2006 and claimed asylum. He apparently speaks good English. He claims to be of a minority ethnic group called the Ika, and his claim to a fear of persecution was based on threats to his life which he had received from another ethnic group, the Ozu. He explained this in the section 11 interview, as follows:
"They, the Ozu, use people for human sacrifice. They wanted me to join the youth section but I couldn't do it. When I refused, they wanted to kill me. When I refused, they started talking to my family that they were looking for me. My mum died because of this problem."
6. He described how he left for the Benin Republic, where he lived from February until October 2006, when he left to travel to Ireland.
7. In the challenged section 13 report of 30 th January 2007, the authorised officer first refers to that claim arising out of the refusal to join the Ozu ethnic group or its youth section, and mentions that the applicant claimed that he had failed to seek State protection because he was afraid to. The authorised officer then accepts that:
"Taken as a whole, it would appear that the allegations made in this claim would, on a cumulative basis, amount to persecution. However, due consideration must be given to the well-foundedness or otherwise of the applicant's claim in order to meet the refugee criteria."
8. The report then proceeds, in its section 4 (after more detailed recall of the evidence given as to the basis of the fear and the flight to Benin and then to Ireland,) to itemise a series of "serious credibility issues" with regard to the claim. Four specific aspects of the travel to Ireland are listed, leading to the conclusion:
"It is very hard to accept the applicant's account of how he travelled through airports without showing any documentation. Accordingly, I do not believe that the applicant has provided a full and true account of how he travelled to Ireland."
Next, the report quotes from a United Kingdom Home Office "Operational Guidance Note", by way of country of origin information, to the effect that it contradicts (a) his claim to fear of persecution arising from his refusal to join the Ozu group, which is described in the report as a "secret society", and (b) his claimed inability to seek police protection. The same country of origin documentation is cited to discount the applicant's assertion that he could not re-locate in Nigeria so as to evade the source of the threats to his life.
9. The report then expresses further doubt as to his credibility by reference to three further aspects of the account he gave:
(a) The claim to have been severely beaten in Benin City, when the only treatment he sought was that of getting painkillers from a chemist;
(b) The fact that the Ozu group destroyed things in his home yet he was able to run away umharmed; and
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