A. -v- MJELR & Anor, [2009] IEHC 281

Docket Number:2009 176 JR
Party Name:A., MJELR & Anor
Judge:Irvine J.

THE HIGH COURT2009 176 JRIN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000, SECTION 5 OF THE REFUGEE ACT, 1996 (AS AMENDED), AND IN THE MATTER OF THE IMMIGRATION ACT, 1999 (AS AMENDED)BETWEEN:C. I. A.APPLICANTANDTHE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORMANDTHE REFUGEE APPEALS TRIBUNALRESPONDENTS JUDGMENT of Ms. Justice Mary Irvine delivered the 30th day of June, 2009This is an application for leave to seek judicial review, in which the applicant seeks, inter alia, an order of certiorari of the decision of the Refugee Appeals Tribunal (the "RAT") not to grant the applicant refugee status notified to the applicant by letter dated 14th October, 2008, and, by extension, the decision of the Minister for Justice, Equality and Law Reform to issue a proposal to deport the applicant notified to the applicant by letter dated 14th November, 2008. The applicant seeks an extension of the time limit for the making of this application, pursuant to section 5(2)(a) of the Illegal Immigrants (Trafficking) Act, 2000.The grounds upon which relief is sought can be summarised as follows:-1. In concluding that the applicant did not have an objectively well-founded fear of persecution, the Tribunal member failed to have any or adequate regard to the fact that the applicant had already been subjected to police brutality when he was detained for two months and beaten in police custody, and, by reason thereof, was entitled to the benefit of a presumption that he would be subject to persecution upon his return to Nigeria.2. The Tribunal member failed to have any or adequate regard to the fact that the applicant, as a homosexual man in Nigeria and a member of a particular social group, could be subject to acts of persecution, within the meaning of Regulation 9 of the European Communities (Eligibility for Protection) Regulations 2006, without necessarily being liable to execution.3. The Tribunal member failed to have any or adequate regard to reputable country of origin information submitted to the said respondent at the time of the decision, which demonstrates that 18 men had been arrested for alleged sodomy, which is punishable under Sharia law by death by stoning, and were awaiting trial.4. The Tribunal member failed to have any or adequate regard to reputable country of origin information available to the said respondent at the time of the decision, which demonstrates that Nigerians are liable to arbitrary arrest and detention, as well as police brutality and lengthy prison sentences by reason of engaging in homosexual activity.5. The Tribunal member acted ultra vires the Refugee Act, 1996 (as amended), as interpreted in accordance with Article 4(3) of Council Directive 2004/83/EC in failing to take account of all relevant facts as they relate to the country of origin at the time of taking his decision on the applicant's asylum application, including all the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm.Background factsThe applicant is a Nigerian national who sought asylum in Ireland in or about 10th of June 2008. On 11th June 2008, the applicant completed a questionnaire in which the following facts, amongst others, are revealed:-1. The applicant was born on 16th of July 1986 and is a citizen of Nigeria.2. For the last eighteen years, the applicant has resided in Benin city with his father. His mother is deceased and the whereabouts of his sister are unknown.3. The applicant attended school from 1990 to 2000 at the Baptist Group of Schools, obtaining his primary and secondary school certificates.4. Between January 2006 and February 2007, the applicant worked with a charity helping the under-privileged, known as the African Children Care Democratic Party.5. The applicant claims that he was accused of stealing money from this charity. He was arrested and detained in police custody for 2 months during which time he was beaten by the police. Later he came to understand that this was because the police knew that he was gay.6. The applicant claims that he fled to Lagos to hide himself but was followed by the police. The applicant fears that he will be killed if he returns to Nigeria.7. The applicant claims that he was brought to Ireland by an agent, to whom he paid a fee.Following the completion of this questionnaire, an interview was held on 24th June, 2008. During the interview the applicant was asked a large number of questions as is normal, and while it is not necessary for me to detail everything that was said, I will summarise the relevant information which was given during this interview.The applicant stated that he was detained in the police station for 2 months. He was released following the assistance of his uncle, who is a lawyer. Following his release, the police came to his house on 2nd June, 2008. There were 3 policemen and 3 fearful cultist men. They drove the applicant to a building site where the 3 policemen left. The applicant's boss was at the building site as well as six of his co-workers. His boss said that he knew the applicant had not stolen the money, that he used that to get the applicant out of his office because he knew that the applicant was gay. His boss advised him to leave the country immediately. The applicant stated in his interview that he is gay.The applicant stated that he fled to Lagos to stay with a friend. He remained there for the whole month of June. On 27th June, three policemen came to Lagos and showed the applicant's photograph to his neighbour as they were seeking the applicant. The neighbour claimed that she did not know the Applicant and later told the applicant what had occurred. The applicant then stated that it was in fact on 27th May, not June, that the police came to Lagos. The applicant's friend, who worked at Lagos Airport, made arrangements with an agent to get the applicant out of the country. On 8th June, 2008 the applicant travelled with the agent to Ireland, transiting through Madrid, Spain.The applicant was asked about the inconsistency of dates in his account. He then stated that he was released from police custody on 25th May, 2008; the police called to his home on 2nd June, 2008. He then stated that he was in fact released on 2nd May; the police came to his house on 12th May and he went to Lagos that same day.The applicant was asked how his employer knew that he was gay. He responded that "I don't know how he got the information but he put it straight to me that he knew. He said he saw me, but I don't know if he saw me or not, but he said he did." The applicant was asked when he first discovered that he was gay. He stated "When I was 16 years old. A friend of mine came to stay with me, on vacation. He was making advances at me and he lured me into it." The applicant stated that he is not openly gay in Nigeria. He stated that it is a crime to be gay; if the police know that you are gay they will search for you everywhere. The applicant fears execution if he returns to Nigeria, and stated that he cannot relocate internally as the police will search for him everywhere.In the Report pursuant to s. 13(1) of the Refugee Act, 1996 (as amended), and which is dated 26th June, 2008, the facts as outlined by the applicant in his application and interview are outlined. It is clear from this report and recommendation that he was considered not to have established a well-founded fear of persecution. The Commissioner was of the view that the applicant's account of events was not credible. He stated:-"According to the applicant, his employer used the pretext of him, in collaboration with his assistant, stealing from the charity where they worked, to have him arrested rather than sack him for being, allegedly, gay. It is not credible.According to the applicant, his employer told the police that he was gay on the day of his release from detention yet, according to the applicant, the same police who he claims to be searching for him everywhere, picked him up...

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