E (E) v The Minister for Justice, Equality and Law Reform and the Refugee Applications Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 08 May 2008
• Neutral Citation: [2008] IEHC 137
• Court: High Court
• Docket Number: No. 187 J.R./2006
• Date: 08 May 2008

[2008] IEHC 137

THE HIGH COURT

No. 187 J.R./2006

E (E) v Min for Justice & Refugee Applications Commissioner

JUDICIAL REVIEW

BETWEEN

E. E.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

REFUGEE ACT 1996 S2

HUMAN RIGHTS WATCH WORLD REPORT NIGERIA 2005

HOME OFFICE SCIENCE and RESEARCH GROUP COUNTRY OF ORIGIN INFORMATION SERVICE REPORT ON NIGERIA 2005

HATHAWAY THE LAW OF REFUGEE STATUS 1998 104 - 105

RAJAH v ROYAL COLLEGE OF SURGEONS 1994 1 IR 384

ZHUCHKOVA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 26.11.2004 2004/51/11705

P & L & B v MIN JUSTICE 2002 1 IR 164 2002 1 ILRM 38

IMMIGRATION ACT 1999 S3(3)(a)

NI EILI v ENVIRONMENT PROTECTION AGENCY UNREP SUPREME 30.7.1999 2000/13/4925

MJT SECURITIES LTD v SECRETARY OF STATE FOR THE ENVIRONMENT 1998 JPL 138

ARLOVSKAYA v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP MURPHY 15.7.2005 2005/2/368 2005 IEHC 244

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

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

OLEED v SECRETARY OF STATE FOR THE Home DEPARTMENT 2003 INLR 179 CA 2002 EWCA Civ 1906

IDEAKHEUA v MIN JUSTICE UNREP CLARKE 27.5.2005

MOYOSOLA v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP HIGH COURT CLARKE 23.6.2005 2005/40/8261

MURPHY v MIN FOR THE MARINE 1997 2 ILRM 523

N (A) & ORS v MIN JUSTICE UNREP SUPREME 18.10.2007 2007 IESC 44

Z (V) v MIN JUSTICE 2002 2 IR 135

AKPOMUDJERE v MIN JUSTICE UNREP FEENEY 1.2.2007 EX TEMPORE

IMMIGRATION

Asylum

Assessment of claim - Fair procedures - Duty to give reasons - Refugee Applications Commissioner - Whether failure to give adequate reasons for refusal of claim - Whether substantial grounds for contending that decision invalid - In re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 considered - Relief refused (2006/187JR - Herbert J - 8/5/2008) [2008] IEHC 137

E(E) v Minister for Justice

the applicant sought leave to institute judicial review of a decision of the respondent dismissing her application for asylum. She contended that no adequate reasons had been given for adverse conclusions as to her credibility made by the respondent in assessing her application.

Held by Mr Justice Herbert in refusing to grant the applicant leave to institute judicial review that it was abundantly clear from the decision that the respondent considered and it was reasonably and rationally open to him to so consider, the material contained in the country of origin information available to him, that the option of relocating to another part of the applicant's home state was available to her. That, when considering whether adequate reasons for a particular conclusion have been given by a decision maker, the decision had to be read as a whole.

Reporter: P.C.

Mr. Justice Herbert

1 In this case, leave to seek judicial review was granted to the applicant by the Court (deValera, J.), on 15^th June, 2007, on each of the twelve grounds set out at paragraph (e) of the Statement Required to Ground Application for Judicial Review, filed on the 16^th February, 2006. A Statement of Opposition was delivered by the respondents on the 5^th December, 2007.

2 The decision of the Refugee Applications Commissioner is dated 26^th January, 2006. There was no issue between the parties at the hearing of this application, that a woman of homosexual orientation could properly claim to be a member of "a particular social group", within the definition of "refugee", contained in s. 2 of the Refugee Act 1996, (as amended). The Authorised Officer of the Refugee Applications Commissioner accepted as plausible and credible the following elements of the applicant's story, which he sets out in his Decision.

3 In 1994 the applicant became involved in a physical relationship with another woman, who she met through family friends. This woman supported her while she was attending University. In 1995 she moved to Warri where she lived with this woman. Between 1995 and 1998 she held a number of positions, but in 1998 she became employed as the secretary in an Investment Company. In 2003 her partner was diagnosed as suffering from human immunodeficiency virus. In 2003 their relationship became known to members of her partner's family and also to people in the area where they lived.

4 In early 2004 a male cousin of her partner beat the applicant, accusing her of bringing bad luck to his cousin. She was wrongly accused of being responsible for her partner's illness, which she said resulted from a previous heterosexual relationship. Neighbours began to avoid her and her partner, and children in the neighbourhood threw stones at her. Matters became much more serious on the 2^nd December, 2004 when she was assaulted by a number of youths aged between nineteen and twenty four years whom she recognised as living in the same area. She suffered serious injuries and required in-patient care in hospital. She complained to the police in Warri about this attack. The police asked her for money. They detained a number of persons whom she pointed out to them but no charges were made because of a claimed lack of evidence.

5 In 2005, as a result of threatening telephone calls she again complained to the police in Warri. The District Police Officer insulted her and attempted to "fondle her" so that she ran out of his office. In May 2005, her employment was terminated because somebody informed her employer that she was a homosexual and might be suffering from human immunodeficiency virus. She produced a photocopy of a letter of termination from her employer dated 3^rd June, 2005. On the 2^nd December, 2005, while she was absent, her home was set on fire and her partner died as a result of the fire. Neighbours advised the applicant to leave for her own safety as the fire had been caused by the same youths who had attacked her on 2^nd December, 2004, together with some relatives of her partner. On 3^rd December, 2005, she left Warri and went to her home town. Her lifestyle was considered abominable by her mother and her relatives so she felt she could not remain in the town.

6 Three or four weeks prior to her death her partner had become worried about the applicant's safety and had made contact with a person (named), to help the applicant to leave Nigeria. On 4^th December, 2005, the applicant made contact with this person and on the 5^th December, 2005, they travelled together to Lagos. On the night of 6^th December, 2005, they flew from Lagos to Dublin, via "an unknown airport". The other person retained the passports at all times. All the costs had been paid by her late partner when she first contacted this person. On arrival in Dublin on 7^th December, 2005, the applicant completed the ASY 1 Form seeking asylum in this country.

7 The authorised officer of the Refugee Applications Commissioner found in his Decision of 26^th January, 2006, that:-

8 (a) The applicant's claim was not sufficiently serious in its nature or repetition to constitute a severe violation of basic human rights and therefore did not amount to "a persecution".

9 (b) Because the applicant did not live openly as a homosexual woman or associate with homosexual groups while at University or while living in Warri or attend homosexual events and, because her sole long term partner had many previous heterosexual relationships and, because that partner was now deceased, "it lacked credibility that the applicant could readily be identified and be subject to violence for her lifestyle in any part of Nigeria with the possible exception of Warri where the alleged agents of her persecution were local people and members of her deceased partner's family".

10 (c) While a Human Rights Watch Report of January, 2005, and a United Kingdom Home Office Report of October, 2005, on conditions in Nigeria stated that police in Nigeria had committed serious human rights abuses, the experiences described by the applicant did not fall into the category of "serious human rights abuses" or "persecution".

11 (d) The applicant had not demonstrated that she had been deprived of the effective protection within Nigeria. When asked at interview had she made any complaint concerning the behaviour of the District Police Officer, the applicant responded that, "she did not bother". It was stated at pp. 104 and 105 of Professor Hathaway's book,"The Law of Refugee Status", that the maltreatment anticipated must be demonstrative of a breakdown of national protection.

12 (e) The employment termination letter of 3^rd June, 2005, was a photocopy so that the authenticity of the document could not be verified, but in any event it did not say that the applicant, if she wished to apply for another position in Nigeria, would not be furnished with references.

13 (f) The letter from Phoenix Medical Consultants dated 30^th December, 2005, setting out medical particulars of the injuries suffered by the applicant following an attack on 2^nd December, 2004, and, of the diagnosis made and treatment given, contains a, "number of surprising errors", which casts some doubt on its veracity, namely; "having been assaulted" appears as, "haven been assaulted" and, "referred for counselling" , appears as "referred for conseling". (I noted during the hearing that "semiconscious" appears twice as "semiconcious").

14 (g) Her account of events in December, 2005, lacked credibility in the following respects:-

15 (i) That her partner would have begun organising the applicant's escape from Nigeria.

16 (ii) That her partner would have paid the agent in full for the journey.

17 (iii) That the applicant left Warri and travelled to her home town on 3^rd December, 2005, after she had gone to the house of the agent who had begun to make arrangements for her departure from Nigeria, but claims...