E (O) v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: MR JUSTICE E. SMYTH,
• Judgment Date: 30 March 2011
• Neutral Citation: [2011] IEHC 149
• Court: High Court
• Date: 30 March 2011

[2011] IEHC 149

THE HIGH COURT

Record No: 1036JR/2008

E (O) 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

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000

AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 (1)

BETWEEN

O. E.

APPLICANT

AND

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

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

A (M) v MIN FOR JUSTICE UNREP COOKE 17.12.2009 (EX TEMPORE)

A (M) v MIN FOR JUSTICE UNREP RYAN 12.11.2010 (EX TEMPORE)

J (H) (IRAN) v SECRETARY OF STATE FOR THE HOME DEPT; T (H) (CAMEROON) v SECRETARY OF STATE FOR THE HOME DEPT 2011 1 AC 596 2010 3 WLR 386 2011 2 AER 591 2010 UKSC 31

MUIA v REFUGEE APPEALS TRIBUNAL (O'GORMAN) & ORS UNREP CLARKE 11.11.2005 2005/40/8300 2005 IEHC 363

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL (HURLEY) & MIN FOR JUSTICE UNREP PEART 9.7.2004 2005/15/3102 2004 IEHC 436

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009 IEHC 353

A (CI) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP IRVINE 30.6.2009 2009/1/103 2009 IEHC 281

A (O) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 25.6.2009 2009/2/323 2009 IEHC 296

REFUGEE ACT 1996 S13

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 204

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 7

THIRUNAVUKKARASU v CANADA (MIN OF EMPLOYMENT & IMMIGRATION) 109 DLR (4TH) 682

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S13(1)

APPIAH ASAMOAH, IN RE UNREP IABD 19.1.1988 (T87-9902)

REYES FERRADA, IN RE UNREP IABD 18.9.1981 (T81-9476)

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

T (G) v MIN FOR JUSTICE UNREP PEART 27.7.2007 2007/57/12325 2007 IEHC 287

KRAMARENKO v REFUGEE APPEALS TRIBUNAL & ORS 2005 4 IR 321 2004 2 ILRM 550 2004/26/6170

REFUGEE ACT 1996 S11B

IMMIGRATION ACT 1999 S3(11)

S (C) & ORS v MIN FOR JUSTICE & ORS 2005 1 IR 343 2005 1 ILRM 81 2004/45/10305 2004 IESC 44

K (G) & ORS v MIN FOR JUSTICE & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)

S v MIN FOR JUSTICE & ORS 2002 2 IR 163 2002/24/6257

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

K (G) & ORS v MIN FOR JUSTICE & APPEALS AUTHORITY & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

E (E) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 24.3.2010 2010 IEHC 135

IMMIGRATION LAW

Asylum

Persecution - Sexual orientation - Adverse credibility findings - Internal relocation - Discrepancy in evidence - Extension of time for leave sought - Reason for finding internal relocation possible - Whether respondent finding relocation possible if kept gender identity hidden - Whether analysis of country of origin information reflected selective presentation or manipulation of information - Whether interpretation or use of information at variance with content of documentation - Whether respondent considered country of origin documentation - Whether respondent entitled to conclude not unduly harsh for applicant to relocate internally - Relocation to place homosexuals not actively pursued by government - Whether legal basis for finding applicant not established well founded fear of persecution - Whether good and sufficient reasons shown to justify extension of time - A(M) v Minister for Justice (Unrep, Cooke J, 17/12/2009), A(M) v Minister for Justice [2010] IEHC 519 (Unrep, Ryan J, 12/11/2010), Da Silveira v Refugee Appeals Tribunal [2004] IEHC 436 (Unrep, Peart J, 9/7/2004), A(CI) v Refugee Appeals Tribunal [2009] IEHC 281 (Unrep, Irvine J, 30/6/2009) and A(O) v Refugee Appeals Tribunal [2009] IEHC 296 (Unrep, Cooke J, 25/6/2009) considered; HJ (Iran) v Home Secretary [2010] UKSC 31 [2011] 1 AC 596 and Muia v RAT [2005] IEHC 363 (Unrep, Clarke J, 11/11/2005) distinguished; R(I) v Refugee Appeals Tribunal [2009] IEHC 353 (Unrep, Cooke J, 24/7/2009), Imafu v Minister for Justice [2005] IEHC 416 (Unrep, Peart J, 9/12/2005), T(G) v Refugee Appeals Tribunal [2007] IEHC 287 (Unrep, Peart J, 27/7/2007), Kramarenko v Refugee Appeals Tribunal [2004] IEHC 101 [2004] 2 ILRM 450 and E(E) v Refugee Appeals Tribunal [2010] IEHC 135 (Unrep, Cooke J, 24/3/2010) followed; CS v Minister for Justice [2004] IESC 44 [2005] 1 IR 343, GK v Minister for Justice [2002] 2 IR 418; [2002] 1 ILRM 401, S v Minister for Justice, Equality and Law Reform [2002] IESC 17 (Unrep, SC, 5/3/2002), Re the Illegal Immigrants (Trafficking) Bill 1999 [2000] IESC 19 [2000] 2 IR 360 and GK v Minister for Justice [2002] 2 IR 418 applied - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 7 - Leave refused (2008/1036JR - Smyth J - 30/3/2011) [2011] IEHC 149

E(O) v Refugee Appeals Tribunal

Facts The applicant, a Nigerian national had sought refugee status in the State. Central to the applicant's case was that the assertion he was a homosexual who had suffered persecution in Nigeria and that if he returned to Nigeria he would suffer further persecution. The applicant contended that the wrong test had been applied by the Refugee Appeals Tribunal (RAT) to his case and the decision was flawed. It was contended that the RAT had held that the applicant could avail of internal location within Nigeria if he concealed his sexual orientation. The applicant also brought an application for the extension of time to bring his proceedings.

Held by Mr. Justice Smyth in dismissing the application. The RAT had information before it for it to conclude that the applicant had not demonstrated that he had been targeted by the Nigerian authorities because of his sexual orientation. The RAT had clearly been dissatisfied with the applicant's credibility. The applicant had not shown good and sufficient reasons to allow the court to exercise its discretion to extend the time for the bringing of the application.

Reporter: R.F.

1 1. This is an application for leave to seek judicial review of the decision of the Refugee Appeals Tribunal (RAT), notified to the applicant on 15 August 2008, to affirm the recommendation of the Refugee Applications' Commissioner (RAC) that the applicant should not be declared a refugee. The hearing took place on 15 February 2011. Mr Mel Christle S.C., with Mr Garry O'Halloran B.L., appeared for the applicant and Ms Sinéad McGrath B.L. appeared for the respondents.

Factual Background

2 2. The applicant, a national of Nigeria, claims to be of homosexual orientation. He claims that he suffered a physical assault by members of his community in Nigeria when his sexual orientation was discovered. The applicant claimed that following this incident, he was sent to a spiritualist to be 'cured'. He sought asylum in the State on 16 April 2008 on the basis of a fear of persecution in Nigeria from the community, society and government on account of his sexual orientation. Following a negative recommendation from the RAC, the applicant filed an appeal with the RAT. The Tribunal rejected the applicant's claim and made a number of adverse credibility findings.

Summary of submissions

3 3. Counsel on behalf of the applicant submitted that in reaching the impugned decision, the Tribunal Member applied the wrong legal test. It is claimed the RAT held that the applicant could avail of internal relocation in Nigeria if he concealed his gender identity. The applicant submitted that the correct test is whether the applicant would be exposed to persecution if he did not keep his gender identity hidden. In support of this argument, the applicant cited the decision of Cooke J. in M.A. v MJELR, (Unreported, High Court, Cooke J., 17 December 2009), where the learned judge granted leave to argue that the Minister erred in law in failing to consider whether the requirement to conceal the applicant's sexual orientation constituted a form of persecution. In the substantive hearing of the same case, Ryan J. held "the principal question for the Minister to consider … was whether it was reasonable or legitimate in light of the Convention to conclude that the applicant could avoid trouble from the authorities by living discreetly." ( M.A. v MJELR, Unreported, High Court, Ryan J., 12 November 2010). The applicant further relied on the decision of the UK case of HJ (Iran) & HT (Cameroon) v SSHED [2010] UKSC 31 as supporting the proposition that the Tribunal could not require the applicant to return and live discreetly in his country of origin to avoid persecution.

4 4. The applicant addressed three adverse credibility findings of the Tribunal Member. It was submitted that a discrepancy in his evidence, in respect of time spent receiving 'treatment' for his homosexuality from a spiritualist, was the sole finding against his evidence and was not of sufficient cogency to lead to a dismissal of the entirety of the applicant's claim. The applicant argued that he was entitled to a presumption that the remainder of his evidence was accepted as accurate (see Muia v RAT & Others, (Unreported, High Court, Clarke J. 11 November 2005), and Da Silveira v RAT [2004] IEHC 436). The applicant referred to two findings of the RAT in respect of the applicant's travel to Ireland. It was claimed that the RAT's finding in relation to the applicant's ignorance of the name on the passport he used to enter the State was a peripheral finding and not central to the claim as a whole. Further the RAT relied on the applicant's failure to seek asylum in the Netherlands, the first safe country the applicant had arrived in, without providing a reason for discounting the applicant's explanation for this failure: his inability to speak the...