A. O. v Refugee Applications Commissioner and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 17 April 2015
• Neutral Citation: [2015] IEHC 253
• Court: High Court
• Date: 17 April 2015

[2015] IEHC 253

THE HIGH COURT

[No. 1194 J.R./2009]

O (A) v Refugee Applications Cmsr & Ors

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED),

IN THE MATTER OF THE IMMIGRATION ACT 1999 (AS AMENDED),

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED)

AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)

BETWEEN

A. O.

APPLICANT

AND

REFUGEE APPLICATIONS COMMISSIONER, REFUGEE APPEALS TRIBUNAL, MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

Asylum – Judicial review – Order of certiorari – Refugee Act 1996 (as amended) – Internal Relocation.

Facts: The applicant sought an order by way of judicial review for an order of certiorari quashing the decision of the respondent. The decision was to refuse the refugee status of the applicant who had claimed fear of persecution for a Convention reason. The applicant contended that the respondent failed to take in to account the tender age and frightening experience of the applicant. The applicant claimed that the option of availability of the internal relocation was dealt with improperly.

Mr. Justice Barr held that the application seeking an order of certiorari would be granted. The Court held that the respondent had failed to carry out sufficient investigation to substantiate the fear of persecution. The Court held that the respondent failed to understand the mental status of the applicant. The Court held that an applicant, given the frightening experience and tender age, becoming forgetful would be understandable. The Court further held that the option of availability of the internal relocation was dealt with improperly. The Court held that the respondent failed to understand that relocation without family or friends and without funds to support would be difficult for an applicant of tender age.

1 JUDGMENT of Mr. Justice Barr delivered the 17th day of April, 2015

Background

2 1. The applicant is a young woman of Nigerian nationality. While there was some initial dispute as to her correct age, it seems to have been accepted that she was born on 10 ^th May, 1991. She was 15 years of age when she arrived in Ireland on 9 ^th January, 2007.

3 2. The applicant's case is that following on the death of her parents, she was sent to live with her uncle Patrick, who had no children. The applicant says that she was sent to live with him when she was 13 years of age. She did not attend school and on occasion her uncle sent her out to sell bread in the streets. The applicant claimed that in 2006, her uncle tried to force her to marry a friend of his known as "the Chief". Both her uncle and his friend were members of the Ogboni Society. The applicant stated that when she refused to marry the Chief, her uncle threw her out of the house.

4 3. The applicant stated that when she was thrown out, she was abducted by a number of men who brought her to the Chief. She was put in a room and not provided with any food. The next day, the Chief came and tried to rape the applicant. She screamed and the Chief left the room. Sometime after that, while there was a party going on at the Chief's house, one of the Chief's servants allowed the applicant to escape.

5 4. The applicant stated that she did not go to the police as she was young and she did not know where the Chief's house was located. She said that she would not have known what to say to the police. She stated that while she was roaming the streets, she was knocked down by a motorcycle. A woman who witnessed the accident came to her aid and brought her to hospital. It is not clear how long the applicant was detained in hospital. It may have been a number of hours or as long as one day.

6 5. When she was discharged from the hospital, the applicant went with the lady who had come to her aid with a view to staying with her for a few days. However, when they reached the lady's house, they saw that it was burning. The applicant stated that there was a letter on the gate which instructed the lady to bring the applicant to the Chief and stated that if she did not do so, she and the applicant would be killed. The letter did not give the name of the Chief, nor did it give any contact details for him nor any address.

7 6. The lady told the applicant that she could not stay at the house as she did not want any further trouble. The applicant stated that when she was on the road crying, another lady assisted her and brought her to the African Refugee Foundation. The applicant said that she stayed in this place for ten days and was not allowed outside. Her picture was taken after three days in this place. The applicant said that she did not meet any other people at the foundation as she was not allowed to go out. The lady who brought her to the foundation brought her food in her room. The lady told the applicant to call her "aunty". The applicant stated that people came to the foundation and made threats as it was known that the applicant was in the foundation.

8 7. After a number of days, the applicant was brought by the lady called "aunty" to an airport. She did not know the name of the airport that she flew from. At the airport she was given a refugee card and a letter from the foundation. During the journey, the lady known as aunty would walk in front of the applicant. They landed in an unknown country which the applicant said was not an African country. The applicant was not told where she was going. After they arrived in Ireland, the applicant said that she could not find this lady.

9 8. The applicant applied for asylum in the State. She was sent for examination to Sir Patrick Dun's Hospital where she was deemed to be an adult. As a result she was sent to an adult refugee centre. However, the medical team there felt she was a minor. She was accepted as being a minor aged 15 when she arrived in Ireland. The asylum application was carried out when she turned 18 years of age.

Accompanying Documentation

10 9. Upon arrival in Ireland, the applicant had the following documents: a letter purportedly from the African Refugee Foundation setting out the applicant's history and asking that she be treated as a refugee. There were a number of discrepancies concerning this document:-

11 (i) The document stated that the applicant was raped; the applicant's own evidence was that she was not raped.

12 (ii) The document claimed that the applicant remained under the care of AREF for three months; the applicant's own evidence was that she remained there for ten days.

13 (iii) The document recounted that the applicant left her uncle's home in August 2006. The applicant's evidence at her s. 11 interview was that she left her uncle in November/December 2006.

14 (iv) The name of the auditors of AREF on the letter is spelt incorrectly c( Price Waterhouse Coppers) as is the acronym UNHCR (spelt UNICR).

15 (v) As outlined in the s. 13(1) report, some contact details on the correspondence do not match the details contained on the AREF website which would be unusual for the official letterhead of such a reputable organisation.

16 10. The second document which the applicant had was an identity card apparently issued by AREF stating that the applicant was a refugee.

Extension of time

17 11. The RAT decision dated 28 ^th September, 2009, was notified to the applicant by letter dated 27 ^th October, 2009. The notice of motion in this matter issued on 16 ^thNovember, 2009. In the circumstances, it was necessary to grant a short extension of time to enable the applicant to bring the proceedings herein. Counsel for the respondent indicated that the State did not object to this extension of time. Accordingly, I extend time up to and including 16 ^th November, 2009.

Grounds of Challenge to the RAT Decision

18 12. The decision of the RAT is challenged on the following limited ground:-

19 2 "9. Without prejudice to paragraph 8 herein, the adverse credibility findings arrived at by the second named respondent were made without proper regard to the tender age of the applicant, the tender age of the applicant at the relevant times, the life experiences of the applicant and the totality of evidence presented by or on behalf of the applicant. Further, the said respondent failed to discharge the burden of proof in circumstances where adverse findings were based on a finding that a significant document was unlikely to be authentic. Further, insofar as the decision of the second named respondent is based on a finding in respect of internal relocation, this was made without any reasonable regard to the submissions made in the notice of appeal submitted on behalf of the applicant, including submissions to the effect that internal relocation is not a viable option in the particular circumstances of the case. In addition, the said respondent failed to have any regard to the 2003 UNHCR Guidelines on Internal Relocation."

20 13. Thus, the decision of the RAT falls to be considered under two headings: first, in relation to the credibility findings that were made against the applicant; and secondly, in relation to the question as to the availability of internal relocation within Nigeria.

The Credibility Findings

21 14. The RAT made a number of adverse credibility findings against the applicant. First, in relation to the note left at the lady's gate, the applicant stated that there was no name on the note. The applicant was not aware of the Chief's name or address. The lady did not know the Chief. The note apparently stated that the lady should bring the applicant to him, or he would kill both of them. The RAT held that it was not credible that the Chief would not have given some indication of his address or contact details to enable the lady to comply...