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

• Jurisdiction: Ireland
• Judge: Ms. Justice Clark
• Judgment Date: 24 February 2009
• Neutral Citation: [2009] IEHC 93
• Court: High Court
• Date: 24 February 2009

[2009] IEHC 93

THE HIGH COURT

[No. 570 J.R./2006]

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

JUDICIAL REVIEW

BETWEEN

O.A.A.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S13(1)

MEMISHI v REFUGEE APPEALS TRIBUNAL & ORS UNREP PEART 25.6.2003 2003/35/8424

SANGO v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (MCHUGH) UNREP PEART 24.11.2005 2005/53/11227 2005 IEHC 395

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

BISONG v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (GARVEY) UNREP O'LEARY 25.4.2005 2005/4/814 2005 IEHC 157

KEAGNENE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (NICHOLSON) UNREP HERBERT 31.1.2007 2007/31/6465 2007 IEHC 17

KVARATSKHELIA v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2006 3 IR 368 2006/33/6983 2006 IEHC 132

REFUGEE ACT 1996 S2

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 203

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

KIKUMBI v REFUGEE APPLICATIONS CMSR & MIN FOR JUSTICE UNREP HERBERT 7.2.2007 2007 IEHC 11

K (M) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP MCCARTHY 31.7.2008 2008 IEHC 294

Judicial review -Credibility - Reasonableness - Applicant not availing of oral appeal hearing - Whether decision of respondent unreasonable - Whether irrelevant matters taken into account - Whether error in assessing subjective fear of persecution - Whether personal conjecture or erroneous interpretation of evidence employed in reaching adverse conclusion on credibility - Whether findings of credibility related to peripheral matters - Memshi v Refugee Appeals Tribunal (Unrep, Peart J, 25/06/2003), Sango v Minister for Justice [2005] IEHC 395 (Unrep, Peart J, 24/11/2005), Da Silveira v Refugee Appeals Tribunal (Unrep, Peart J, 9/7/2004), Keagnene v Refugee Appeals Tribunal [2007] IEHC 17 (Unrep, Herbert J, 31/01/2007), K (D) v Refugee Appeals Tribunal [2006] IEHC 132 [2006] 3 IR 368, and Kikumbi v Refugee Appeals Tribunal [2007] IEHC 11 (Unrep, Herbert J, 07/02/2007) considered; Bisong v Minister for Justice [2005] IEHC 157 (Unrep, O'Leary J, 25/04/2005) distinguished - Relief refused (2006/570JR - Clark J - 24/2/2009) [2009] IEHC 93

A (OA) v Refugee Appeals Tribunal

1 Judgment of Ms. Justice Clark delivered on the 24th day of February, 2009.

2 1. This is the substantive action for an order of certiorari quashing the decision of the Refugee Appeals Tribunal made on the 19 ^th April, 2006, affirming the recommendation of the Refugee Applications Commissioner, notified to the applicant on the 30 ^th April, 2006. Leave was granted by Mr. Justice Edwards on the 7 ^th November, 2008 in the following terms:-

"In the said purported decision of the first named respondent, the member found and stated "many credibility aspects vitiate the applicant's stated fear. The documents noted did not corroborate an abduction or kidnapping. The affidavit concerning a missing person contained the photographs of the applicant; the incident is unreported and not corroborated in country of origin information; the applicant's statements that the OPC removed all the documents in the applicant's house appears implausible. The applicant in her interview notes appears to date the attack and removal of her son's passport to August 2005 whereas in all the documentation submitted in her questionnaire the attack is dated as the 1 ^st October, 2005." In so finding and in so drawing one and more adverse instances on credibility in relation to:"

(i) the photograph of the affidavit concerning a missing person and/or

(ii) the fact that the incident viz the abduction of the applicant's husband and two of her children was not reported or collaborated in country of origin information

(a) the decision of the first named respondent, is unreasonable, irrational and flies in the face of common sense and/or;

(b) the decision of the first respondent does not contain any rational analysis as to why the factual finding indicated the truth was not being told and/or;

(c) the first named respondent erred in law in taking into account matters irrelevant to the determination of the application and/or;

(d) the first named respondent erred in law and acted ultra vires in the manner in which he assessed the objective element of the applicant's fear of persecution and/or;

(e) the first named respondent relied on personal conjecture and/or erroneous interpretation of the evidence presented in reaching negative conclusion regarding credibility and/or;

(f) the first named respondent made adverse credibility findings related to peripheral matters.

3 In relation to the third adverse finding on credibility concerning the date of the attack, the first named respondent:-

4 (a) made a significant and material error of facts on which he relied in making the third adverse finding on credibility and/or;

5 (b) erred in law in failing to take into account relevant evidence and considerations and/or;

6 (c) failed to have regard to explanations furnished in relation to credibility issues which were perceived as being of significance."

7 2. The hearing took place in the King's Inns, Court No. 1, on the 12 ^th February, 2009. Robert Haughton S.C. with Ms. Maureen Cronin B.L. appeared for the applicant and Emily Farrell B.L. appeared for the respondents.

Background facts

8 3. The facts of this particular case as stated by the applicant are that she was born in Nigeria in 1967, is of Yoruba ethnicity, a Muslim and a married woman with three children. She applied for asylum in the State on the 6 ^th December, 2005 at the Office of the Refugee Application Centre (ORAC) and stated at her initial interview that her son was born in Belfast in December 2004 and has Irish citizenship. Her house in Lagos was ransacked and all her documents were stolen and her family was kidnapped. She did not have any documentation to support her son's nationality and was advised how to obtain replacement documentation. The applicant had a Nigerian driver's license as proof of her identity. She did not have a passport.

The questionnaire

9 4. In her questionnaire, she stated that she left Nigeria "because her husband was a former member of the O'Odua Peoples Congress (OPC). When he saw that the "ideals of the group were being jettisoned for selfish aims by some members, such as acting in vigilante manner, he opted out of the association. This did not go down well with the leaders of his unit as he was said to know "too much to go". They decided to eliminate him and his entire family. On 1 ^st October, 2005 following a series of threats and assaults, my husband and two children were abducted from our home and taken away to an unknown destination. I have been living in fear and running for my dear life and that of my baby".

10 5. She stated that she reported the abduction to the Nigerian police at a named police station and they told her that they would investigate the matter but when she went back for the outcome of the investigation they said that they could not help because her husband "had stepped on some powerful toes". She then left for her home town staying there for two weeks when she heard that they were "on to her" as they operate a network.

11 6. She did not wish to return to Nigeria because she feared that she would meet with the fate that befell her husband and two children. She feared for her life and that of her baby and could never feel safe as neighbours told her that they kept shouting "where is the wife," where is the wife, by all means we shall get her". She did not want to spend her life looking over her shoulder. She then asked a friend to arrange to sell off her business and she paid an agent 250,000 naira to travel by air to France and Cork and then by rail to Dublin on a false passport.

12 7. She explained the circumstances in which her son came to be born in Belfast in December, 2004: she had had a difficult time with her previous deliveries and had decided to go to where she could give birth to her child with modern medical facilities. She had travelled to the United Kingdom for medical care on a valid passport and visa issued in Lagos and went to Belfast to have her baby. She then obtained an Irish passport for her son before returning to Nigeria. That passport was removed from her house in Nigeria after she and the baby returned.

The ORAC interview

13 8. She attended for interview on the 10 ^th January, 2006 bringing her son's copy birth certificate which indicated that he was born at the Royal Maternity Hospital in Belfast on the 24 ^th December, 2004. She was in possession of a number of other documents being a photocopy of her son's passport which was issued on the 19 ^th January, 2005 in London, an extract from a crime diary of The Nigeria Police together with a sworn affidavit for missing persons with her photograph attached to the left hand corner.

14 9. It is not necessary for the purposes of this hearing to recite all the facts of her case except insofar as they relate to the credibility findings made by the Refugee Appeals Tribunal that are being impugned. At her s. 11 interview the applicant explained how she had no passport for her baby as it was taken from her home by the OPC people "who attacked us on 15 ^th August, 2005". She explained that she was a very organised person and had a file of all her family documentation but that "the attackers put it all in a sack and took everything".

15 10. By way of personal background she explained that she had an MSc in Finance from the University of Lagos and had worked as a tax consultant for ten years at a good salary. Her husband was the manager of a named...