V.O. v Minister for Justice, Equality and Law Reform and Another
| Jurisdiction | Ireland |
| Judge | Ms. Justice Clark |
| Judgment Date | 23 January 2009 |
| Neutral Citation | [2009] IEHC 21 |
| Court | High Court |
| Date | 23 January 2009 |
[2009] IEHC 21
THE HIGH COURT
BETWEEN
AND
REFUGEE ACT 1996 S13(1)
IDIAKHEUA v MIN FOR JUSTICE UNREP CLARKE 10.5.2005 2005/31/6357 2005 IEHC 150
EEC DIR 83/2004 CH 2
EEC DIR 83/2004 ART 4
EEC DIR 83/2004 ART 6
EEC DIR 83/2004 ART 17
GENEVA CONVENTION ART 1
GENEVA CONVENTION ART 24
EEC DIR 83/2004 ART 2(e)
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 2
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 3
IMAFU v REFUGEE APPEALS TRIBUNAL UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416
HORVATH v SECRETARY OF STATE FOR THE HOME DEPARTMENT 1999 INLR 7
KRAMARENKO v REFUGEE APPEALS TRIBUNAL 2005 4 IR 321
B (F) v MIN FOR JUSTICE UNREP PEART 2.5.2008 2008 IEHC 126
E (P I) v REFUGEE APPEALS TRIBUNAL UNREP HEDIGAN 30.10.2008 2008 IEHC 339
IMMIGRATION
Asylum
Judicial review - Leave - Fair procedures - Assessment of credibility - Country of origin information - Whether mandatory for Refuge Applications Commissioner to consult country of origin information where applicant fails to call such information - Whether Commissioner entitled to make credibility findings without consulting country of origin information - Whether decision ultra vires - Whether substantial grounds for contending that decision invalid - Kramarenko v Refugee Appeals Tribunal [2005] 4 IR 321 and Imafu v Refugee Appeals Tribunal [2005] IEHC 416 (Unrep, Peart J, 9/12/2005) applied; F(B) v Minister for Justice [2008] IEHC 126 (Unrep, Peart J, 2/5/2008) and E(PI) v Refugee Appeals Tribunal [2008] IEHC 339 (Unrep, Hedigan J, 30/10/2008) adopted; Horvath v Secretary of State [1999] INLR 7 considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Leave refused (2006/1361JR - Clark J - 23/1/2009) [2009] IEHC 21
O(V) v Refugee Applications Commissioner
Facts: The applicant, who was a Nigerian national sought leave to apply by way of judicial review for an order of certiorari of the decision of the Office of the Refugee Applications Commissioner (ORAC), recommending that the applicant should not be declared a refugee. The application was based on two grounds, firstly that the respondent erred in law in coming to his decision without first consulting country of origin information and secondly, the respondent erred in failing to take into account the provisions of the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006). The applicant’s application for refugee status was rejected on the basis of lack of credibility in his account of alleged persecution. The applicant’s application for refugee status was not supported by any documentation. The recommendation of ORAC contained the following statement; “…and to examine the credibility of his account with reference to relevant country of origin information.”
Held by Clark J. in refusing the application for leave: That while the Regulations of 2006 applied to all stages of the assessment of whether a person qualified for refugee status or was otherwise in need of international protection, an application for subsidiary protection could only be assessed after a person had been refused refugee status. It was no part of ORAC’s statutory functions or powers to consider subsidiary protection. It was not necessary for ORAC to consider country of origin information in relation to the applicant’s claim as the general credibility of the applicant had not been established. The consultation of country of origin information by ORAC would not have made the applicant’s story of persecution more credible.
It was not appropriate for ORAC in its recommendation to have referred to the necessity to examine country of origin information when no such information was consulted or received. The inclusion of that paragraph suggested a formulaic style decision. However, that was a matter properly for appeal and was not appropriate for judicial review.
Reporter: L.O’S.
Ms. Justice Clark delivered on the 23rd day of January, 2009
1. This is an application for leave to apply by way of judicial review for an order of certiorari of the decision of the Office of the Refugee Applications Commissioner (ORAC), dated the 3 rd November, 2006, recommending that the applicant should not be declared a refugee.
2. The applicant relies on two grounds:-
a a. That the authorised ORAC officer erred in law in coming to his decision without first consulting country of origin information. The applicant argues that it is mandatory for ORAC in every case to consult country of origin information even if the applicant himself calls no such information; and
b b. That the ORAC officer erred in law in failing to take into account the provisions of the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. No. 518 of 2006). The applicant argues that there is a mandatory obligation to do so and that failure to take the Regulations into account renders the decision invalid.
3. The applicant argues that as a result of the failure to consult country of origin information the applicant has not had a fair hearing and the decision should therefore be quashed.
4. The respondents argue that the applicant's complaints relate to the ORAC decision and not to the conduct of the hearing and that the appropriate step therefore would be to appeal the decision to the Refugee Appeals Tribunal. They further rely on the argument that the European Communities (Eligibility for Protection) Regulations 2006, which they say are known as "Subsidiary Protection Regulations", have no application here and are merely a red herring.
5. The facts of the case were found not to be credible and the application for refugee status was rejected on the basis of the applicant's application form and ORAC interview. Those facts are that the applicant is a citizen of Nigeria and lived in Lagos. His wife and four children are already in Ireland, his youngest daughter having been born in the State on the 31 st October, 2003, shortly after the arrival of her mother. The applicant's children travelled to Ireland separately in 2006 in the company of an agent.
6. In his ORAC application form, the applicant stated that he was employed as an estate surveyor and valuer in Nigeria and had been in such employment for the previous sixteen years. He holds a Higher National Diploma in Estate Management and attended the Federal Polytechnic for five years. The basis for his application for refugee status is " because of a death sentence passed on him by the Ogboni Aboriginals for failure to sacrifice his last daughter in consonance with the wish ofhis late father in law, Chief Okawara by facilitating his wife to leave Nigeria in 2003, thereby aborting the traditional rites incidental to the above". He asserted that " more recently they gave me an option of joining the group or death. As a Christian I abhor such group hence my distress, movement to the Republic of Ireland for protection and to be re-united with my family and to build the future for my children and generation yet unborn."
7. The applicant was interviewed on the 23 rd October, 2006, very shortly after he made the application to be considered a refugee. His interview was in English and he did not require the services of a translator. The interview was based on his answers in his ORAC questionnaire and some issues were clarified. He stated that his three older children had left Nigeria to come to Ireland in August, 2006 and were brought over by an agent following arrangements made by his wife's uncle. Again he stated that he came to Ireland because of an imminent threat of death from the Ogboni Aboriginals, a secret society or cult, and also to be re-united with his family. His life was under threat because he had prevented the cult from carrying out the last wish of his father in law that the applicant's fourth child should be sacrificed to the cult. Because of that threat the applicant insisted that his wife travel to Ireland. His father in law died in 1993 but he and his wife were not married until the 17 th February 1996, when they had a church wedding. The applicant first realised the threat to his fourth child when his wife was pregnant in 2003 and her elder brother, who was a member of the cult, came to her and said that she should come and sacrifice the child. His wife left Nigeria with an agent between the 5 th and 10 th October, 2003, and " when she left she actually got the protection and she was O.K."
8. The applicant says a form of conversation took placed between him and the cult, in which it was suggested that he should join the cult or face imminent death for soliciting his wife to travel. This conversation did not take place for some time after his wife had left and he thought it was about a year previously, say 2005. Again it was his brother in law who recommended that the applicant join the cult. The applicant had no problems in Nigeria between the date of his wife's leaving and 2005. However, he moved here and there trying to avoid the cult. Because of his apprehension, he moved from his house once in a while and as he said " it is only a tree that stands in one place and gets caught". He said it was probably in the previous year that he started getting messages from his brother in law recommending that he do something quickly and that the best option was to join the cult or risk death. He did not report the threats to the police as the evidence was only...
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