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

• Jurisdiction: Ireland
• Judge: Mr Justice Cooke
• Judgment Date: 25 June 2009
• Neutral Citation: [2009] IEHC 296
• Date: 25 June 2009
• Court: High Court
• Docket Number: [No. 987 J.R./2006]

[2009] IEHC 296

THE HIGH COURT

[No. 987 J.R./2006]

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

BETWEEN/

O.A.

APPLICANT

AND

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

RESPONDENT

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(6)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

REFUGEE ACT 1996 S2

STEFAN v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY 2001 4 IR 203 2002 2 ILRM 134 2001/23/6290

KAYODE v REFUGEE APPLICATIONS CMSR UNREP SUPREME 29.1.2009 (EX TEMPORE)

N (BN) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP HEDIGAN 9.10.2008 2008/45/9749 2008 IEHC 308

D (A) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 27.1.2009 2009 IEHC 77

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S17(1)(A)

REFUGEE ACT 1996 S11(10)

REFUGEE ACT 1996 S16(8)

REFUGEE ACT 1996 S17(5)

IMMIGRATION

Asylum

Refugee status - Fear of persecution - Whether grounds for review - Credibility - Whether commissioner's adverse credibility findings rational or lawfully made - Stefan v MJELR [2001] 4 IR 203, Kayode v Refugee Applications Commissioner (Unrep, SC, 28/1/2009), B(NN) v MJELR [2008] IEHC 308 (Unrep, Hedigan J, 9/10/2008), D(A) v RAC [2009] IEHC 77 (Unrep, Cooke J, 27/1/2009), M (J) v RAC [2009] IEHC 64 (Unrep, Cooke J, 27/1/09) followed - Relief refused (2006/987JR - Cooke J - 25/06/2009) [2009] IEHC 296

A (O) v Refugee Appeals Tribunal

Mr Justice Cooke

1 By judgment and order of 13^th June, 2008, leave was granted by Birmingham J. to the applicant to bring the present application for, inter alia, an order of certiorari to quash a report of the Refugee Applications Commissioner made on 25^th July, 2006, under s. 13 of the Refugee Act 1996 in which the Commissioner's authorised officer recommended that the applicant be not declared a refugee.

2 The applicant is a native of Nigeria who arrived in the State on 10^th July, 2006 and claimed asylum. He says that in Nigeria he was involved in the motor trade and for some years had been Secretary General of a trade body, "The Motor and Spare Parts Association". He left behind in Nigeria a wife and three children.

3 It was in the course of his activities in the trade association that the applicant encountered and, he says, was forced to become involved with an Ogboni group. The Ogboni society is described in country of origin information as a secret society whose members are bonded to each other by oath and who indulge in various rituals such as the ritualistic cutting of the face of a first born male child.

4 In his asylum application and in the section 11 interview conducted by the Commissioner's authorised officer, the applicant described how he discovered that the executive committee of the association was controlled by or belonged to this Ogboni group and that he was forced by the group to join it. They wanted, he says, to take his blood and drink it to make him a blood companion and thus bind him to secrecy. He did not want this because he was a Christian but he claims that he was overpowered and forced to submit to this induction. As explained in more detail later in this judgment, the activities and, subsequently, the threats and attacks on himself and his family by members of this group were what the applicant claims forced him to flee Nigeria.

5 The applicant was interviewed on 26^th July, 2006 by the authorised officer and the resulting report ("the Contested Report") which is now challenged, was made on 25^th July, 2006. An appeal against that report to the Refugee Appeals Tribunal was commenced but has been left in abeyance pending the outcome of the present proceeding. It is to be noted that, if eventually pursued, it will be an appeal procedure in which the applicant may apply for an oral hearing as no findings under s. 13(6) of the 1996 Act have been included in the Contested Report.

6 Leave was granted by Birmingham J. to apply for relief by reference to four broadly defined grounds but the application, as now presented, advances a single ground which is of more specific focus and which effectively consolidates some of those grounds. It can be characterised as directed at an alleged error of fact made by the authorised officer in assessing credibility which is said to be so fundamental as to go to jurisdiction and therefore to require the report to be quashed rather than leave the applicant to his statutory appeal remedy.

7 The section 13 report of the Commissioner is set out in sections headed as follows:

1 Introduction.

2 Legal Basis of Assessment.

3 Persecution Claimed.

4 Well Founded Fear; and,

5 Recommendation.

8 In the third section - the "Persecution Claimed", the authorised officer summarises, -and it is accepted that she accurately and correctly summarises, -the description given by the applicant of the circumstances which led to his flight from Nigeria in July 2006, including his involvement with the Ogboni group; how he was forced into it; his resistance to its ritual activities and kidnappings; the threats and attacks by its members; his being forced to move with his family to get away from them; the death of his driver at the hands of a killer hired by the group; assassins being sent to his house; and his escape from another imminent attack on the night of 27^th June, 2006 which led to his flight.

This summary is then followed by the following sentence:

"The applicant's claim is not considered sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights and therefore does not amount to persecution."

9 This statement which is said to be a finding or conclusion on the part of the authorised officer is described as, in effect, patently irrational if it is treated as constituting the officer's appraisal of the legal significance of the facts for the purpose of "persecution" in the sense of the Convention and s. 2 of the 1996 Act. Understandably, counsel for the applicant commends to the Court the observation made in respect of it by Birmingham J. when granting leave where he says,

"One has to say, taking it at face value, the conclusion reached is a surprising one and at face value might give rise to arguments as to whether, in fact, it could be regarded as a conclusion that was reasonably open and not one that was irrational."

As counsel for the applicant put it, the final sentence of the third section could only be explained as other than irrational if the authorised officer is concluding that the facts and events which are summarised under the heading "Persecution Claimed" are not believed. And that, in fact, is precisely the basis upon which the analytical parts of the report are then set out because the authorised officer immediately says, "Nonetheless, an examination of the circumstances and factors pertaining to the claim is set out in the following paragraphs of this report." There then follows in the fourth section an analysis of the basis of the claimed fear of persecution which is set forth under the three subheadings; "Credibility", "State Protection", and "Internal Relocation".

10 It is under the first of these three subheadings that the applicant identifies what is said to be the fundamental error of fact on the part of the authorised officer which vitiates her exercise of jurisdiction and necessitates the quashing of the report as unlawful.

11 In this subsection headed "Credibility", the authorised officer points to three particular areas of evidence drawn from pages 13, 14, 15, 20, and 27 of the section 11 interview and comprising specifically the replies to questions 54, 55, 69 and 81. In the third of the matters, based upon the reply to question 55, she refers to the applicant's account of answering the door of the house to killers whom he thought were armed robbers who would simply take the money and go but who, he says, produced a photo of him, hit him, and he woke up in hospital. She says, "It is difficult to accept that having allegedly being threatened, that the applicant would let assassins into his house and allow them to identify him using a picture. This casts doubt on the credibility of the applicant's claim."

12 On the second point, the authorised officer refers to the replies at questions 55, 69 and 81, where he described moving to Oshogbo to get away from the group and how they located him there. She says he was unable to explain how they located him and quotes him as saying, "I cannot say, I was surprised myself." She concludes, "It is hard to believe the group would be able to find him in a country as vast and...