M. -v- Refugee Appeals Tribunal & Ors, [2007] IEHC 300 (2007)

Docket Number:2006 332 JR
Party Name:M., Refugee Appeals Tribunal & Ors
Judge:Edwards J.
 
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THE HIGH COURT

JUDICIAL REVIEW[2006 No. 332 J.R.]BETWEENK. M.APPLICANTAND

REFUGEE APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELANDRESPONDENTSAND

THE HUMAN RIGHTS COMMISSIONNOTICE PARTYJUDGMENT of Mr. Justice John Edwards delivered on the 18th day of July, 2007.

Background Facts

The applicant was born in Ibadan, Oyo State, Nigeria, in 1970. He is of Yoruba ethnicity. The applicant's father, who died when the applicant was 15 years old, was the elder of the Osugbo cult. The applicant contends that this cult practises ritual human sacrifice and that his father had sacrificed the older brother of the applicant when initiated into the cult. The applicant was aware since his father's death that he was expected to join the cult, but at that time this was not of great concern to him. However, following his marriage and when his wife was five months pregnant, cult members called to the applicant on three occasions to remind him of his duties in relation to initiation and sacrifice. He believed that they wanted him to sacrifice his child when he or she was born. The applicant fled to the Republic of Benin in February, 2005. He subsequently went to France in July, 2005. He claims that while in France he was informed that his wife and child were in Ireland and he travelled to Ireland on the 4th September, 2005 and upon arrival claimed asylum on the basis that he had a well founded fear of being persecuted for reasons of religion. He applied for a declaration pursuant to s. 17 of the Refugee Act, 1996, that he was a refugee as defined in s. 2 of that Act. He completed the necessary form and the questionnaire in support of his claim. He was subsequently interviewed by an investigating officer authorised in that behalf by the Refugee Applications Commissioner in the context of an investigation of the application by the Commissioner pursuant to s. 11 of the Refugee Act, 1996 for the purpose of ascertaining whether the applicant was a person in respect of whom a declaration should be given. Following the said s. 11 investigation, the Commissioner prepared a report in writing in accordance with s. 13 of the Refugee Act, 1996 (as amended) as to the results of the investigation and the said report recommended to the Minister for Justice, Equality and Law Reform that the applicant should not be declared a refugee as he had failed to establish a well-founded fear of persecution as defined under s. 2 of the said Act.

The RAC's report and recommendation found that there were serious credibility issues with the applicant. In arriving at that assessment the RAC engaged in a critical analysis of all of the circumstances and factors pertaining to the case and the assessment took into account the matters to which the RAC was obliged to have regard pursuant to s. 11B of the Refugee Act, 1996. In all the circumstances the RAC was satisfied that the applicant had showed either no basis or a minimal basis for the contention that he was a refugee, and held accordingly that section 13 (6)(a) of the Refugee Act, 1996 (as amended) applied.

The court is not concerned with the correctness or legality of the decision and recommendation of the Refugee Applications Commissioner. However, the applicant, as he was entitled to do, appealed the recommendation of the Refugee Applications Commissioner to the Refugee Appeals Tribunal (the first named respondent herein) pursuant to s. 16 of the Refugee Act, 1996. Nevertheless it is important to rehearse in a little detail the basis for the Refugee Applications Commissioners' decision because of the finding that s. 13(6)(a) of the Refugee Act, 1996 applied. By virtue of the application of that provision the applicant's appeal to the first named respondent was required to be determined without an oral hearing pursuant to s. 13(5) of the 1996 Act and also s. 16(3) of the 1996 Act as amended by the Immigration Act, 2003.

The Proceedings before the Refugee Applications Commissioner

It is clear from the decision of the RAC that the Commissioner took the view in the first instance that the applicant's claim was capable of being considered as being of a persecutory nature. However, that view was expressed to be a preliminary one without prejudice to an examination of the well-foundedness of the applicant's claim encompassing a critical analysis of all the circumstances and factors pertaining to the case, including, inter alia, an assessment of the applicant's credibility and the availability of State protection.

As stated the RAC found the applicant to be not credible. The RAC had regard, inter alia, to the matters listed section s. 11B of the Refugee Act, 1996 in assessing the credibility of the applicant. While the specifics of this analysis are not fully recited certain aspects of the evidence were clearly relevant in that regard.

Section 11B(a) required the RAC to have regard to whether the applicant possessed identity documents, and, if not, whether he had provided a reasonable explanation for the absence of such documents. At the very outset of his report the Commissioner noted that the applicant had submitted the following documentation:

  1. A British passport (false) in the name of Aborisade Bolanji.

  2. An airline boarding card in the name of Aborisade Bolanji.

  3. An invoice for an airline ticket

  4. A baggage check slip

    He further noted that the applicant said he could produce at a later date his birth certificate and his driving licence. However, he did not have them with him and has never in fact produced them. The RAC was bound to have regard to this in applying the first part of s. 11B(a).

    Moreover, this court has had regard to all the documentation that was before the RAC. It is noted that the applicant speaks English and that he completed the "Application for Refugee Status Questionnaire" himself. At the front of the questionnaire there are guidelines for its completion and among those guidelines at item 6 is the following admonition:-"If you wish to lodge documentation in support of your application, it should be obtained and submitted immediately. If you intend to seek documentation from your Country of origin, you should do so immediately."Therefore there was evidence before the RAC which would have entitled it to infer that applicant knew, or at least ought to have known, from the outset that purported reliance upon documents on the basis that he would undertake to produce them later would not be acceptable. He provided no explanation for not producing his birth certificate and driving licence to the RAC. The RAC was bound to have regard to this in applying the second part of s. 11B(a).

    In having regard to s. 11B(b) the Refugee Applications Commissioner would also have been concerned with whether the applicant had provided a reasonable explanation to substantiate his claim that the State was the first safe country in which he had arrived since departing from his country of origin or habitual residence. The information provided by the applicant was that he went from Benin to France in July, 2005 and then travelled onto Ireland on the 4th September, 2005. Clearly Ireland was not the first safe country in which he arrived since departing from his country of origin and the explanation that he gave for coming to Ireland was that he believed his wife and child were in Ireland. Accordingly, prima facie, he travelled to Ireland from France to be united with his wife and child and not because he was fleeing persecution. The Commissioner was obliged to take that into account.

    The Commissioner, pursuant to s. 11B(c), was also obliged to have regard to whether the applicant had provided a full and true explanation of how he travelled to and arrived in the State. The Refugee Applications Commissioner took the view that the applicant's statement as to where he was in 2003, 2004 and 2005 was very difficult to believe. Moreover, there were inconsistencies between answers given in response to the questionnaire completed by the applicant on the one hand and the statement given by him at interview on the other hand. The Refugee Applications Commissioner was obliged to take those matters into account under the said heading, and it is clear from his decision that he did so.

    The Refugee Applications Commissioner also took into account certain country of origin information in examining the well-foundedness of the applicant's claim. The Commissioner had regard to the British Home Office report entitled "Nigeria Country Report - October, 2004" wherein with respect to the Osugbo cult it was reported that human sacrifices for ritual purposes very rarely occurred, if at all. The Commissioner also had regard to the joint British Danish "Report on Human Rights Issues in Nigeria" which indicated that it would have been open to the applicant to complain to the Nigerian police force who would have been obliged by law to investigate his complaint. The Commissioner took the view that the applicant's failure to go to the police was relevant and appeared to preclude him from claiming a lack of State protection.

    In all the circumstances outlined the Refugee Applications Commissioner formed the view that the applicant had showed either no basis or a minimal basis for the contention that the applicant was a refugee. In the circumstances s. 13(6)(a) of the Refugee Act, 1996 applied. In all the circumstances the Commissioner was satisfied that the applicant had failed to establish a well-founded fear of persecution in accordance with s. 2 of the Refugee Act, 1996 (as amended) and recommended the applicant should not be declared a refugee.

    The Appeal to the Refugee Appeals Tribunal

    The applicant filed a detailed notice of appeal on the required form (Form 2) running to 9 pages. The grounds of his appeal are set out at item number 3 on the said form commencing on page 2., and running to page 9.. In his grounds of appeal the applicant makes detailed written submissions to the Refugee...

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