High Court dismisses judicial review application against Refugee Appeals Tribunal decision refusing Nigerian asylum seekers status.

Neutral Citation: [2014] IEHC 204

THE HIGH COURT

JUDICIAL REVIEW

[Record No. 2009/280/J.R.]

BETWEEN

T.A. AND O. J. O. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND T. A.)

APPLICANTS

AND

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

GENERAL

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 3rd day of April 2014

1. This is a 'telescoped' application for leave to seek judicial review of a decision of the Refugee Appeals Tribunal dated 4th February

2009, refusing the applicants refugee status.

2. The applicants in this case are a Nigerian mother and her son who was born in Ireland on 18th April 2006. The first named applicant

was born in Nigeria on 17th May 1975 and arrived in the State and claimed asylum on 10th April 2006. She claims to have fled Nigeria

in fear of persecution from her mother-in-law and primarily from her husband who she claims has used violence against her and

threatened to take custody of her children. The second named minor applicant's claim for asylum is based on that of his mother who

states that if she is returned to Nigeria he will be taken from her by his father. Counsel for the applicant submits that the errors in

assessing the appeal of the first named applicant undermine the determination that the second named applicant does not face a risk

of future persecution on going to Nigeria.

Submissions:

3. In her submissions, Ms. Cronin B.L., for the applicants, raises three substantive complaints in respect of the Tribunal decision in

these proceedings. In the first instance, it is submitted that the Tribunal erred factually in assessing credibility and that the refusal of

the applicants' appeals is in breach of s. 16(16) of the Refugee Act 1996. Second, counsel submits that the determination was made

in breach of the applicants' constitutional rights to fair procedures as it is contended that the first named applicant was not given an

opportunity to address or explain several of her credibility issues. Finally, it is claimed that the determination is in breach of the

respondent's duty to determine an appeal within a reasonable time and that the delay led to serious factual errors in assessing

credibility and prejudice to the applicants.

4. In relation to the first complaint, counsel submits that the Tribunal breached s. 16(16) of the Refugee Act 1996 in making the

finding that the statutory declaration of age acquired by the first named applicant in 2005 served to undermine her claim as it

appeared to have been acquired prior to the problems which caused her to flee. However, contrary to this, counsel points to a

statement made by the first named applicant in her questionnaire that the problems with her husband began within six months of their

marriage in 2005. It is submitted that owing to the lapse of time between 2005 and her oral appeal in 2008, it is not surprising that

the first named applicant had difficulty in remembering who sourced the statutory declaration of age on her behalf and that a

credibility finding in this regard was disproportionate and unreasonable.

5. Counsel contends that the Tribunal failed to consider that the first named applicant's friend told her husband that she was

pregnant and that this resulted in him finding her and demanding the children. It is also submitted that the Tribunal failed to take into

account the statements made by the first named applicant in her s. 11 interview to the effect that she moved around from Abuja to

Ibadan to Lagos and back to Abuja and that the Tribunal erred in stating that she had remained at her friend's house in Abuja for

three months prior to leaving Nigeria. Counsel also claims that the summary of the first named applicant’s problems with her husband

(which asserted that he was so ineffectual as to pose no real threat to her) ignored her claims of threats and violence against her

and the lack of state protection available in Nigeria as reported in the country of origin information. Further it is contended that the

Tribunal Member failed to consider the entirety of the evidence adduced including the country of origin information in this regard.

6. The second complaint raised is that there was a breach of fair procedures as the Tribunal Member is said to have relied on adverse

credibility findings which were not put to the applicant so as to give her an opportunity to explain herself. In particular, counsel

contends that the first named applicant did not have the opportunity to explain adverse credibility findings in relation to: the first

named applicant being thrown out of her house by her husband; the fact the first named applicant moved around to various places

before she left Nigeria; and the fact that she had difficult remembering the exact person who sourced the statutory declaration of

age submitted.

7. The final complaint raised by counsel for the applicants is that the respondent is in breach of the duty to determine appeals within

a reasonable time and that the delay in determining the appeal led to errors in assessing credibility and resulted in a prejudice to the

applicants.

8. Mr. Donnelly B.L., for the respondents, submits that the Tribunal found the alleged fear asserted by the first named applicant to be

both objectively ill​ founded and subjectively incredible and further, given the inefficacy of her alleged persecutors, that the applicants

would be able to avoid them by relocating within Nigeria. Counsel noted that the Tribunal did not accept that the first named

applicant's mother-in-law posed any real threat to her as she had made no attempt to harm her since 2002. In relation to the threat

to the first named applicant posed by her husband, counsel notes that the Tribunal found that her fear was not objectively justified

owing to the fact that, on her own evidence, her husband had sought to take her son from her on seven occasions between January

and April 2006 without any success. It is submitted that the Tribunal Member found that the first named applicant's assertion of a

subjective fear in relation to her husband was not credible and nor did she offer any satisfactory explanation as to why her husband's

alleged attempts to take their son had failed.

9. Counsel submits that the first named applicant’s evidence in relation to the statutory declaration of age was that it was obtained

by a friend who acted as declarant; she then corrected herself and said it was her uncle; while in fact the declaration states that the

declarant is her brother. The first named applicant told the Tribunal that her uncle had obtained the document for her after her

problems began, but then stated that she did not know why he had obtained the document when he did on the 12th July 2005.

Counsel notes that the applicant then said that she had asked a friend to ask her uncle to get this document in case she left Nigeria

and needed it and that she received the document in Ireland. It is contended that the first named applicant gave contradictory and

inconsistent evidence in this regard and further, it is denied that the Tribunal made any error of fact in its description of the evidence

given by the first named applicant before it. It is also noted that the applicants did not raise error of fact as a ground of challenge in

their statement grounding application for judicial review.

10. It is stated that the manner in which the first named applicant's husband found out about her pregnancy is not particularly

significant to her case, but rather it is the fact that he assaulted and threatened her as he sought to take her son away which is

central to her account. In this regard, counsel notes that the Tribunal found that even on the first named applicant's own account,

the apparent ineffectiveness of her husband's attempts indicated that her stated fear was not objectively well founded. The

respondent is also of the view that the Tribunal Member did not incorrectly record the evidence of the first named applicant with

regard to the duration of time she spent with a friend in Ahuja before she left Nigeria. In this regard, counsel notes that the first

named applicant stated that despite a brief interval of a few days where she went to her brother's house in Ibadan and then on to

Lagos in order to escape her husband that she remained in her friend's house in Ahuja. Further, it is contended that there is no reason

to suppose that the Tribunal did not take into account the evidence and documents before it and that country of origin information

was not relevant to the issues of the first named applicant's credibility or to the objective foundation for her alleged fears.

11. With regard to the applicant's complaint that there was a breach of fair procedures, counsel submits that the findings of the

Tribunal arose from the evidence which was before it. In this respect, counsel notes the dicta of Herbert J. in D.H v. Refugee

Applications Commissioner [2004] IEHC 95 who stated: "The principle of audi alteram partem does not require the determinative body

to debate its conclusions in advance with the parties" and also cites the cases of P.S. v. Refugee Applications Commissioner [2008]

IEHC 235 and B.N.N v. Refugee Applications Commissioner [2008] IEHC 308 in the same regard.

12. Finally, with regard to the complaint of delay raised on behalf of the applicants, counsel submits that there is no reason to

suppose that there has been any prejudice occasioned by the passage of time between the hearing and the Tribunal decision. In this

case, counsel notes that there were five and a half months between the date of the hearing and the date of the decision. In this

regard, it is submitted that in S.I v. Refugee Appeals Tribunal [2007] IEHC 165, where there had been a similar delay of a period of

five months, Finlay Geoghegan J. took the view that "in the absence of special or specific facts or factors capable of supporting a

contention that the delay renders the decision unlawful or invalid, such delay cannot of itself amount to a substantial ground for

contending that the decision is invalid." Counsel also refers to the decision of Cooke J. in V.C.B.L. v. Refugee Appeals Tribunal [2010]

IEHC 362 to the effect that "...in the absence of a material mistake of fact producing an error of law, the mere lapse of an excessive

period of time between the hearing and the decision does not, in the judgment of the Court, give rise to a ground which, by itself,

entitles an applicant to an order of certiorari. An administrative decision does not become unlawful by reason of delay alone." The

respondent denies that there is any error in the Tribunal decision and that the passage of five and a half months cannot, on the basis

of the authorities, constitute valid grounds on which to impugn the decision.

Findings:

13. The first complaint raised by the applicant is that the Tribunal breached s. 16(16) of the Refugee Act 1996 in making the finding

that a document said to be a Nigerian statutory declaration of age acquired by the first named applicant served to undermine her

claim as it appeared to have been acquired prior to the problems which caused her to flee. Section 16(16) of the Refugee Act 1996

provides that in considering an appeal the Tribunal shall consider certain matters including: the notice of appeal; the recommendation

of the Commissioner; any observations made to the Tribunal by the Commissioner or the UNHCR; the evidence adduced and any

representations from the oral hearing; and any documents or representations in writing furnished to the Commissioner. The finding of

the Tribunal Member in respect of this claim is in the following terms:

"...the Applicant was asked about the Statutory Declaration of Age submitted by her to the Tribunal. There was a

discrepancy in her evidence as to who the Declarant was. She originally said he was a family friend. Then she corrected

herself and said he was her uncle.

She was then asked why her uncle obtained the Statutory Declaration of Age in July 2005. The Applicant kept insisting

her uncle got the document after her problems began. She then said she did not know why he got the document at that

time. She said her uncle gave it to her in 2006. She then said that she asked her friend to ask her uncle to get the

document in case she left Nigeria and needed it. She said she received the document in Ireland.

The Applicant's evidence on this Issue was contradictory and confused. It undermined her credibility."

14. I have some concerns that the applicant has not adequately pleaded a relevant complaint but in any event it is my view that

there is nothing to suggest that the Tribunal Member has breached the provisions of s. 16(16) or erred in reaching this conclusion.

The Tribunal Member recites a précis of the applicant's evidence and this evidence appears to be confused and somewhat

contradictory. I agree with the submission by counsel for the respondent that the time the applicant claimed her marital problems

began is not germane to the fact that she appears to have contradicted herself as to whether she knew why her uncle obtained the

declaration. I reject the claim by the applicant that the passage of time led to her having difficulties in recalling the identity of the

declarant on the declaration of age given the fact that the person's name and address is clearly printed thereon.

15. It is also contended that the Tribunal failed to consider that the first named applicant's friend told her husband that she was

pregnant and that this resulted in him finding her and demanding to take the child away. I accept the respondent's submission that

the Tribunal does not appear to have made any adverse credibility finding in relation to the change of interest exhibited by the

husband in the child. It would appear that the manner in which the first named applicant's husband found out about her pregnancy is

not particularly relevant to her claim and it is my view that nothing turns on this issue. I am not of the view that the Tribunal Member

is in breach of s. 16(16) and the applicant's complaint in this regard is not made out.

16. It is also submitted that the Tribunal failed to take into account the statements made by the first named applicant in her s. 11

interview to the effect that she moved around within Nigeria and that the Tribunal erred in stating that she had remained at her

friend's house in Abuja for three months prior to leaving. I am not of the view that the Tribunal Member has incorrectly recorded the

evidence given by the first named. I note that the relevant passage from the analysis of claim by the Tribunal states:

"The Applicant described those occasions, commencing m early January 2006 when her husband came to her friend's

house in Abuja where she was staying. She said he told her that he wanted his son back. She said he beat the Applicant

but was forced to leave when neighbours intervened. Apart from a two day trip in March 2006 to Ibadan and Lagos, the

Applicant remained at her friend's house in Abuja with her son until April 2006 when she left Nigeria.

In her s. 11 interview, at page 14, the first named applicant states:

"...So I left for my friend in Abuja again.

Q. How long did you spend with [your] friend at that time? A. I was there for 3 months.

Q. So when you left Lagos you spent 3 months with [your] friend and then you moved around?

A. Yes between Abuja, Ibadan and Lagos."

The Tribunal Member records the first named applicant's claim at paragraph 3 of her decision in the following terms:

"On another occasion in March 2006 the Applicant's husband and two men went to Ibadan to look for the Applicant at her

brother's house. She said that they had seen her leave her friend's house and followed her to Ibadan. The Applicant said

that by the time they got to her brother's house she had left and gone to Lagos. She said that they beat her brother.

The Applicant said that she slept under a bridge in Lagos for two days before returning to Ahuja.

The Applicant said that, apart from her trip to Ibadan and Lagos for two days in March 2006, she remained in her friend's

house in Ahuja. She said that sometimes she felt safe there."

I am not of the view that the Tribunal Member was in breach of s. 16(16) in this regard.

17. The two final complaints made by counsel for the applicant in respect of the Tribunal Member's obligations to comply with s.

16(16) of the Refugee Act 1996 relate to the claim that the Tribunal's summary of the first named applicant's problems with her

husband ignored the threats and violence against her, compounded by a lack of state protection available in Nigeria, and that the

Tribunal Member failed to consider the entirety of the evidence adduced including the country of origin information. it is clear to me

that the Tribunal Member found that the applicant's asserted fear of persecution from her husband was not objectively justified. The

Tribunal Member noted that the applicant claimed that her husband had tried to take her child on seven occasions and was

unsuccessful in each attempt. The Tribunal held that the applicant "had no satisfactory explanation for why all these attempts failed.

The Tribunal found her evidence on this issue less than credible and unconvincing." I find no flaw with the decision making of the

Tribunal in this instance. Further, I am not of the view that the Tribunal Member has failed to have regard to the relevant country of

origin information. The Tribunal Member not only states that she has considered all the relevant information, including the country of

origin information, but has also specifically noted the relevant portions of same in her decision which had been brought to her

attention by the applicant's solicitor in his submissions at the conclusion of the oral hearing. I reject both of the claims of the

applicant in this regard.

18. The second substantive complaint raised on behalf of the applicants is that there was a breach of fair procedures as the Tribunal

Member is said to have relied on adverse credibility findings which were not put to the applicant to give her an opportunity to explain

herself. Counsel contended that the first named applicant did not have the opportunity to explain adverse credibility findings in

relation to: being thrown out of her house by her husband; her movements prior to leaving Nigeria; and her difficulties remembering

who sourced the statutory declaration of age. I dismiss the applicants' complaint in respect of this ground of challenge also. There is

a line of jurisprudence, as highlighted by counsel for the respondent, which makes clear that while the Tribunal Member is conducting

an inquisitorial function and is required to give a reasonable opportunity to the applicant to know the matters likely to affect the

judgment, it is not required to enter into a debate with an applicant. As McMahon J. stated in P.S. v. Refugee Applications

Commissioner [2008] IEHC 235:

"Clearly, not every matter must be put to the applicant or to her advisors. It is not incumbent on the Commissioner after

every question is answered to say to the applicant:- 'I am not sure I believe your answer. It may be when I assess the

matter fully and examine the evidence in its totality that I will reject your answer to this question. What have you to say

to that?' It is quite clear to all who participate in this exercise especially where the applicant is assisted by legal advisors,

that the application will be at risk if the applicant is not believed, and that the principal onus of proof lies on the applicant

who is in appropriate cases to be given the benefit of the doubt."

19. Further, I concur with the dicta of Hedigan J. in B.N.N v. Refugee Applications Commissioner [2008] IEHC 308, who stated that:

"[33] It would be completely impossible to reach an expeditious conclusion if a decision-maker was required to debate

with the person who is to receive the decision each and every one of the conclusions on credibility that he was going to

reach. Moreover, if a decision-maker was to say to a person, in respect of each dubious comment, "I don't believe that is

true", the person telling the story would lose the nerve to tell their story, true or false. It is important to bear in mind that

the Office of the Refugee Applications Commissioner officer is not conducting a criminal trial. Rather, he or she is

conducting an investigative procedure, on an inquisitorial basis."

20. The final substantive complaint raised by the applicant was that the respondent is in breach of the duty to determine appeals

within a reasonable time and that the delay in determining the appeal led to errors in her assessment of credibility and resulted in a

prejudice to the applicants. In my view the applicants in this case have failed to show any prejudice on their behalf, or indeed, to

make out any errors in the Tribunal Member's assessment of their claim owing to what is a relatively short delay. In this regard, I

follow the findings of Finlay Geoghegan J. in S.I. v. Refugee Appeals Tribunal [2007] IEHC 165, where a similar period of delay occurred

and where the court took the view that, "in the absence of special or specific facts or factors capable of supporting a contention

that the delay renders the decision unlawful or invalid, such delay cannot of itself amount to a substantial ground for contending that

the decision is invalid."

21. Further, it is clear from the decision of Cooke J. in V.C.B.L. v. Refugee Appeals Tribunal [2010] IEHC 362 that "...in the absence of

a material mistake of fact producing an error of law, the mere lapse of an excessive period of time between the hearing and the

decision does not, in the judgment of the Court, give rise to a ground which, by itself, entitles an applicant to an order of certiorari.

An administrative decision does not become unlawful by reason of delay alone. Delay may explain or be the cause of a defect in a

decision but is not by itself a ground to annul it in the absence of some consequential error or wrong." I am not of the view that the

period of delay in this case could, in any respect, be called "excessive" and nor was there a material mistake of fact in this case. Even

if the delay were so excessive, it would not be sufficient, by itself, to entitle the applicant to an order of certiorari. I reject the

applicants' challenge to the decision on this ground also.

22. In respect of the case of the second named applicant, counsel made no submission other than that the errors in assessing the

appeal of the first named applicant also undermine the determination that the second named applicant does not face a risk of future

persecution on going to Nigeria. Having found conclusively that the assessment of the Tribunal did not show any such legal defects or

errors, I therefore reject the claims of the second named applicant in this case also.

23. I refuse the application for leave to seek judicial review in this case.