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

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M. H. CLARK,
• Judgment Date: 13 February 2009
• Neutral Citation: [2009] IEHC 82
• Court: High Court
• Date: 13 February 2009

[2009] IEHC 82

THE HIGH COURT

[No. 1294 J.R./2007]

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

JUDICIAL REVIEW

BETWEEN

O. A. O.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY, LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL (MICHELLE O'GORMAN)

RESPONDENTS

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11B(B)

REFUGEE ACT 1996 S11B(C)

AJOKE v REFUGEE APPEALS TRIBUNAL UNREP HANNA 30.5.2008 (EX TEMPORE)

IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5

OJUADE v REFUGEE APPEALS TRIBUNAL UNREP PEART 2.5.2008 (EX TEMPORE)

M (S) v REFUGEE APPEALS TRIBUNAL UNREP HEDIGAN 2.12.2008 (EX TEMPORE)

E (BV) & E (ON) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP BIRMINGHAM 10.6.2008 2008 IEHC 230

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

REFUGEE ACT 1996 S16(8)

REFUGEE ACT 1996 S11

NWOLE v MIN FOR JUSTICE & CMSR OF AN GARDA SIOCHANA UNREP PEART 26.5.2004 2005/44/9307 2004 IEHC 433

IMMIGRATION

Asylum

Judicial review - Leave - Credibility - Negative credibility assessment - Country of origin information - Alleged failure to consult country of origin information when assessing applicant's credibility - Consideration of risk faced by applicant's child - Substantial grounds - Whether grounds reasonable, arguable and weighty - OAO v Refugee Appeals Tribunal [2008] IEHC 217 (Unrep, Hanna J, 30/5/2008) distinguished; Imafu v Refugee Appeals Tribunal [2005] IEHC 416, (Unrep, Clarke J, 27/5/2005)and Nwole v Minister for Justice [2004] IEHC 433, (Unrep, Peart J, 26/03/2004) followed; BVE v Minister for Justice, [2008] IEHC 230, (Unrep, Birmingham J,10/6/2008) considered - Refugee Act 1996 (No 17), ss 11B & 16(8) - Illegal Immigrants (Trafficking) Act 2000 (No 29 ), s 5(2) - Leave refused (2007/1294JR - Clark J - 13/2/2009) [2009] IEHC 82

A O(O) v Minister for Justice

1 The applicant is seeking leave to apply for judicial review of the decision of the Refugee Appeals Tribunal (RAT), dated the 21 ^st August, 2007, to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that she should not be declared a refugee. Mr. Ian Whelan B.L. appeared for the applicant and Ms. Sinéad McGrath B.L. appeared for the respondents. The hearing took place at King's Inns in Court 1 on the 5 ^th February, 2009.

Factual Background

2 The applicant is a national of Nigeria of Yoruba ethnicity. Her account of events is as follows: she was born in 1976 and grew up in Lagos State. She was an only child and was raised in a strict Muslim family. She has had thirteen years of education, having attending primary and secondary school from 1982 to 1994 and having commenced study for a marketing qualification at a Federal Polytechnic in 2005. Between 1994 and 2005 she worked at her mother's clothes shop. She says she attended the Mosque until 2004.

3 The applicant says her problems began when she converted to Christianity in January, 2005, after a friend convinced her to attend church. Her parents were angry when her father found her reading the Bible and she told them of her conversion. Some months later she met a Christian man at her church and entered into a relationship with him. She says she saw him weekly, mostly at church. Her parents did not approve of the relationship but she says they could not prevent it.

4 In September, 2005, she moved into student accommodation in Ilara, an hour from her parents' house, and began to study marketing. From then on, she returned home once a month and her parents also visited her in Ilara. She only saw her boyfriend when she went home. In July, 2006, she became pregnant by him. When she told her parents her father told her she would not marry a Christian and demanded that she have an abortion. He then told her that a 60-year old Muslim Imam, who already had three wives, had paid a dowry to the applicant's parents in respect of his envisaged marriage to her. The applicant became very angry with her parents.

5 The applicant's mother died of a heart attack on the 2 ^nd September, 2006. Two days later the applicant and her boyfriend went to Ibadan to stay with a friend of his. On the 20 ^th September, 2006, her father tracked her down with the help of police officers. The applicant's boyfriend was arrested by the police on charges of kidnapping; she has not seen him since. She says she was forced to return to her father's house but locked herself in her room and refused to have an abortion or to go through with the arranged marriage to the Imam.

6 Two months after his arrest the applicant received a phone-call from her boyfriend's friend, who told her the police had released her boyfriend. She says he ran away after being released and she does not know his whereabouts. On the 3 ^rd December, 2006, she received another phone-call from that friend, telling her to meet him at a bus stop five minutes from her house. She went to the bus stop and was met there by the friend and an agent. The friend paid for the agent to accompany the applicant by plane from Nigeria to Ireland via Paris; she does not know how much he paid or any further details about the agent and she did not know if the same plane from Nigeria to Paris continued from Paris to Ireland. She says the agent gave her a red passport which did not have her photo on it. It bore a French name but she could not remember if it had a visa in it. She gave it back to her agent after coming through immigration. The agent answered questions when they were asked.

Procedural Background

7 The applicant was six months pregnant upon arrival in the State. She made an application for asylum on the 4 ^th December, 2006. She filled in an ORAC questionnaire in which she claimed to fear persecution on the basis of her religion. She stated that she fears being forced to marry a Muslim Imam and that she and her baby would be at risk of being killed by her father who believes in honour killings, or by the Muslim Imam who is influential.

8 On the 4 ^th April, 2007 she gave birth to a daughter. She indicated to ORAC that she wanted her daughter to be included under her application for asylum. Her s. 11 interview took place on the 17 ^th May, 2007. She did not submit any travel or identification documents and said this was because her journey was unplanned and her agent took all of her travel documents. When it was put to her that as an educated woman she surely would know whether she took the same plane from Nigeria to France and on to Ireland, she replied "I don't know if it was the same plane." It was noted that when asked how often she saw her boyfriend the applicant was very vague. It was put to her that COI indicates that it would be very unusual for a Muslim arranged marriage to occur at the age of 29; she said she didn't known when they started arranging the marriage and that in Nigeria "they wait for the right person".

9 The applicant told the interviewer that, although the Imam was her father's close friend and had visited their home while she was pregnant, he did not find out she had converted to Christianity, that she was in a relationship with a Christian man, or that she was pregnant. When it was put to her that neighbours talk and that communication in Nigeria is very effective, she had said the Imam was a well connected man and knew influential people in town but not her neighbours. When the interviewer said she found it hard to believe the applicant was afraid the Imam would find her elsewhere in Nigeria if he was unable to find out such basic information, the applicant pointed out that someone told her father where she was in Ibadan.

10 The applicant was also asked why her father had not forced her to have an abortion when she was at his house between August and December, 2006. She said she locked herself in her room for most of the time but was able to come out to eat. She didn't know why her father didn't break the door down even though he abducted her from Ibadan or why he hadn't killed her even though he had ample opportunity to do so, and she said she didn't know what he had planned.

11 In the s. 13 report compiled on the 22 ^nd May, 2007, it was recommended that the applicant and her daughter should not be granted declarations of refugee status. A number of negative credibility findings were made with respect to the following aspects of the applicant's claim:-

· - That the Imam would not have found out about her circumstances;

· - That the applicant would not have informed the police that the charge of abduction levied against her boyfriend was a mistake as she had gone willingly with him to Ibadan;

· - That her father had ample time to force her to have an abortion if that was his aim, that she was able to lock herself in her room and emerge for food when she needed it, and that her father had not broken the door down;

· - That the Imam would not have insisted on a definite marriage plan before paying a dowry; and

· - That the applicant said she travelled through France on her way to Ireland but did not claim asylum there. It was found that s. 11B (b) of the Refugee Act 1996, as amended, was particularly relevant in the circumstances.

12 Four pieces of country of origin information (COI) were appended to the s. 13 report, namely a report from the Women's International Health Coalition (WIHC) entitled Nigeria - The Context: A Brief Overview of Nigeria of 2004, a list of Nigerian women's rights organisations and information taken from a web-page about BAOBAB, and two excerpts from a U.K. Home Office Report of 2006 (the second referencing a British-Danish FFM report). These four documents comprise the only COI that was before the Tribunal Member at the appeal stage: no additional documentation or COI was attached to the Form 1 Notice of Appeal and...