High Court grants leave to challenge Refugee Appeals Tribunal decision on procedural grounds regarding failure to consider evidence.

Neutral Citation Number: [2009] IEHC 280

THE HIGH COURT

JUDICIAL REVIEW

2007 643 JR

BETWEEN

T.J.

APPLICANT

AND

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

RESPONDENTS

JUDGMENT of Ms. Justice Mary Irvine delivered on the 26th day of June, 2009

1. The applicant is a Nigerian citizen from the Kalibari region of Rivers State. She was born on 10th December, 1968, is

married and has seven children. She arrived in Ireland on 10th October, 2005 and applied for refugee status the following

day. Her youngest child was born here in November 2005 and she was included in her application for refugee status.

2. By notice of motion dated 5th June, 2007, the applicant seeks leave to apply for an order of certiorari quashing the

decision of the first named respondent made on 26th April, 2007 whereby the said respondent affirmed the

recommendation of the Refugee Applications Commissioner that the applicant not be afforded refugee status.

3. The grounds upon which the applicant claims relief are many fold but may be summarised as follows:-

(a) An alleged failure on the part of the first named respondent to consider the applicant’s alleged fear of

persecution on grounds of political opinion (real or imputed);

(b) An alleged failure on the part of the first named respondent to consider country of origin documentation in

relation to the applicant’s claim for refugee status based upon political opinion (real or imputed);

(c) An alleged failure on the part of the first named respondent to consider a number of judgments of the Refugee

Applications Tribunal alleged to be material to both of the grounds relied upon by the Applicant for seeking refugee

status.

(d) An alleged failure on the part of the first named respondent to take into account evidence allegedly material to

her claim, namely; a statutory declaration of age sworn on 30th January, 2005 and a medical report.

Background

4. The applicant completed the standard application for refugee status questionnaire on 24th October, 2005. In her

answer to question 21 thereof as to why she left her country of origin, the applicant set out in great detail the events

which she alleged had occurred in her village in September 2005. The applicant recounted that every five years in her

village there was a masquerade in the course of which a ritual would be performed by elderly men and woman. A sacrificial

rite was conducted for the purposes of making the village fertile and protecting it from invaders. The sacrifice involved,

catching visitors who were fishing the local area and sacrificing them to the God which they worshipped.

5. The applicant maintained that women of child bearing age were told to stay indoors whilst the masquerade was taking

place. The applicant stated that she went outdoors to pass urine because she was pregnant and saw the masquerade

near to her home. Somebody involved in the masquerade saw her and she went back indoors immediately. Her husband

then told her she had committed a big crime. The following day, she was advised that she was to be sacrificed in seven

days time. She was taken into captivity and was there for five days before her husband arranged for someone to come to

release her. She stated that two men took her to a village called Arusu-iari. In the days she was there she heard some

shooting which she was told was due to civil war in the River State area. Police and mobile police allegedly had entered

her village to arrest youths and supporters of a freedom fighter whose name was Asarai Dokubo (“A.D.”). As a result of

the violence, she believed that the villagers had been forced to hide in the bush. Mr. Benson, a fish customer, collected

her in a flying boat and took her to Lagos. She was brought to an airport, given a sleeping tablet and then arrived in

Ireland.

6. The applicant subsequently attended for her interview with the Refugee Applications Commissioner on 11th January,

2006. In the course of that interview she repeated her concerns regarding firstly her intended sacrifice in her own village

and secondly her account of how youths thought to be A.D. supporters, were being arrested. The applicant did not say

that she shared any political opinions with A.D. supporters and neither was there anything said from which it might have

been inferred that she felt she was at risk of persecution on the basis that she might be associated with A.D. or his

supporters. Likewise, the applicant did not contend that her family or her village were in any way at risk by virtue of any

association with A.D.

7. The s. 13 report of the Refugee Applications Commissioner is dated 20th January, 2006. The Commissioner was

sceptical as to the truth of the applicant’s claim regarding the masquerade but concluded that in any event, even if her

story was true that her alleged fear was of the local villagers who she claimed wanted to sacrifice her and that as the

State was not complicit in the applicant’s difficulties that her case did not fall on its facts within the remit of the Geneva

Convention. The Commissioner also concluded that there was nothing to suggest that the applicant would have been

refused State protection had she sought it and that as her problem was of a local nature that internal relocation would

have been a safe option for her in any event.

8. The Commissioner did not confine her considerations and decision to the applicants alleged fear of persecution at the

hands of those in control of her village. She also concluded that insofar as riots were taking place in the area in which the

applicant had been residing that there was nothing to suggest that she would have been singled out as an A.D. supporter

and thus be at risk of persecution from those rioting in that village.

9. For both of the above reasons the Commissioner concluded 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 that the applicant

should not be declared a refugee. She went on to recommend that s. 13(6)(a) of the Refugee Act 1996 (as amended)

was appropriate to the application thus confining the Applicant to an appeal on the papers to be lodged with the Refugee

Appeals Tribunal.

10. The applicant’s solicitor filed a Form 2 notice of appeal. In that appeal, it was submitted, inter alia, on the applicant’s

behalf:-

(i) That the applicant belonged to a particular social group i.e. women of child bearing age at risk of sacrifice in

circumstances where they had witnessed a ritual masquerade and accordingly should have been considered to be a

refugee. It was asserted that the applicant was part of a social group who was at risk of persecution by reason of

her membership of that group.

(ii) That the applicant had a well founded fear of persecution due to the severe fighting which had taken place in

her village between A.D. supporters and the members of the Ateke group, a political association backed by the

Nigerian Government. It was maintained on the applicant’s behalf that anyone from the Kalibari region would have

been identified as a supporter of A.D. and that the applicant would therefore be at grave risk of being killed by the

Ateke group if returned to Nigeria.

(iii) Finally, it was submitted on the applicant’s behalf that the conclusions of the Commissioner in relation to State

protection were unwarranted. In going to seek State protection, it was alleged that the applicant might have been

caught by those from who she was fleeing. The applicant also claimed that A.D. opposition groups were backed by

the government and that she would therefore not have received protection.

11. Subsequent to the delivery of the notice of appeal two further sets of additional submissions were lodged with the

first named defendant. On 1st June, 2006 the Refugee Applications Tribunal was furnished with information indicating that

the applicant had been sexually assaulted during the period when she had been held captive in her village. A medical

report from a consultant psychiatrist was enclosed to the first named respondent wherein it was indicated that the

applicant’s main stressor was the fact that she had been refused asylum status. Further, on 27th February, 2007

additional submissions were furnished wherein reference was made to a number of cases dealing with applicants who had

protested a fear of persecution from militia groups fighting in Nigeria and also precedent decisions in relation to fears of

persecution having their origins in intended sacrificial rites. Also the Tribunal was furnished with newspaper cuttings

relating to the alleged abduction of the applicants father.

Decision of the Refugee Appeals Commissioner

12. The decision, the subject matter of the within application is dated 27th April, 2007.

13. At Paragraph 5 of the decision, the Tribunal member, notwithstanding the fact that the applicant’s appeal was

confined to paper stated as follows:-

“Having listened to the applicant’s evidence and to the submission ably made on his behalf, having carefully perused

the documents submitted to me and having carefully and individually considered the matters advanced in the course

of this application, I am satisfied that the applicant is not a refugee and accordingly I affirm the recommendation of

the Refugee Applications Commissioner above mentioned.

In coming to the above decision, I have considered the applicant’s notice of appeal and the grounds thereof,

together with the supporting documentation, submissions and records, the recommendation of the Refugee

Applications Commissioner, all documents and other information submitted to the Refugee Applications Commissioner

and the Refugee Appeal’s Tribunal in connection with this application and all country of origin documentation

furnished, as well as the account of the applicant and the submissions made on her behalf.”

14. The substance of the decision is set out at Paragraph 3 of the report of the Tribunal member. In that section, he

summarised what appears to have been his understanding of the applicant’s claim. At para. 3.2, he referred to the

applicant’s claim being based upon a fear that if returned to Nigeria that she would be killed because she had

inadvertently witnessed a forbidden tribal ritual. Thereafter, the Tribunal member dealt with the issue of State protection

and potential relocation prior to proceeding to deal with the country of origin material. In relation to the relevance of the

country of origin documentation he stated :-

“There is no country of origin material concerning the matters which form the basis of the applicant’s claim, being a

tribal ritual, the witnessing of which implies death”.

The Applicant’s Claim in the Present Proceedings

15. The applicant’s principal submission is that there are reasonable grounds to contend that the first named respondent

failed, in reaching his decision, to consider at all the second ground upon which the applicant had claimed refugee status.

That ground was that she should be afforded asylum status on the grounds of political opinion (real or imputed) by reason

of her association with a social group known to be supporters of A.D. and was therefore at risk of persecution. Counsel

for the applicant acknowledged that the applicant’s claim for asylum on this basis was poorly made out in the applicant’s

questionnaire which was filled out by the applicant without the assistance of legal advice. She further conceded that at

interview a claim for asylum on the same basis was also not fully ventilated. Nonetheless, a claim for asylum status based

upon political opinion (real and imputed) was considered by the Refugee Applications Commissioner and was fully and

clearly set out in the notice of appeal, the accompanying submissions and the country of origin documentation later

furnished.

16. Counsel for the applicant submitted that she had reasonable grounds for contending that the first named respondent

failed, as he was obliged to do, to take into account the country of origin documentation submitted on the applicant’s

behalf when coming to his decision and that accordingly, his decision could be impugned on this basis.

17. Counsel for the applicant relied upon the decision of Clarke J. in Idiakheua v. Refugee Appeal’s Tribunal (Unreported,

High Court, 10th May, 2005) in support of her contention that there were reasonable grounds upon which it could

maintained that the decision of the first named respondent should be impugned by reason of his failure to deal with

previous Tribunal decisions submitted to him for his consideration and to which it is alleged he was obliged to have regard

when reaching his conclusions. The applicant denied that the first named respondent was entitled to rely upon the

content of para. 5 of his report which she alleged was a standard paragraph of a rote and formulaic nature routinely

inserted into Refugee Appeal’s Tribunal’s decisions.

18. On the applicant’s behalf if was further asserted that there were reasonable grounds to maintain that the Tribunal

member in reaching his decision had not had regard to documents alleged to be material to his decision and which he was

obliged to consider, namely a statutory declaration of age and a medical report concerning the applicant psychological

welfare.

19. Finally, on the applicant’s behalf, it was submitted that there were reasonable grounds to impugn the decision of the

Tribunal member on the basis that he did not address, as he was allegedly obliged to do, the applicant’s submission that

she was entitled to refugee status on the grounds of her membership of a social group, namely women of child bearing

age who were at risk of being sacrificed due to having witnessed a ritualistic masquerade.

The Respondent’s Submissions

20. The respondent submitted that it was to be inferred from the Tribunal member’s report that he had indeed considered

the applicant’s claim for asylum status based upon her alleged fear of persecution on the grounds of political opinion (real

or imputed). This, counsel stated was to be inferred from para. 3.6 of the first named respondent’s report. He asserted

that from this paragraph, the court should infer that the Tribunal member considered this aspect of the applicant’s claim

but had discounted it on the basis that the claim had not been made in the course of the completion of the questionnaire

or at interview with the Refugee Applications Commissioner.

21. In relation to the alleged failure on the part of the first named respondent to consider the country of origin

documentation filed on the applicant’s behalf, counsel claimed that the documentation had clearly been considered by the

first named respondent. However, given that the first named respondent had decided to reject the applicant’s claim for

refugee status on the grounds of political opinion due to the fact that such a claim had not been maintained by the

applicant in her questionnaire or at interview with the Refugee Applications Commissioner that there was no basis upon

which the Tribunal member’s decision to the effect that the country of origin documentation was irrelevant to the

applicant’s claim could be challenged.

22. Counsel for the respondent submitted that the Tribunal member’s finding that the applicant was undocumented in this

county was correct as a matter of fact in circumstances where a statutory declaration of age could not be considered to

be a document of any substance such as a passport or like independent document. If he was wrong in this regard,

counsel for the respondent submitted that the applicant had not established how his failure to have regard to this

document materially impacted upon his decision.

23. Counsel for the respondent submitted that the first named respondent should be deemed, by reason of the contents

of para. 5 of his decision to have taken into account the medical report lodged by the applicant’s solicitors in the course

of the appeal. He submitted that in the event of the court being satisfied that there was any default on the part of the

Tribunal member for failing to consider this medical report that the applicant had not in any event how such failure had a

material bearing upon his decision.

24. Finally, in respect of the applicant’s contention that she should have been considered to a member of a political social

group, namely women of child bearing age who were at risk of being sacrificed due to having witnessed a ritualistic

masquerade, counsel relied upon the credibility findings made by the Tribunal member to the effect that her claim on the

facts surrounding the alleged sacrifice were not credible. In such circumstances it was not necessary for the first named

respondent to determine whether or not the applicant belonged to a member of a particular social group such as might

afford her protection as an asylum seeker. In any event, counsel on behalf of the respondent maintained that as a matter

of law, the applicant had not reasonable grounds to contend that she was a member of a particular social group that

would entitle her to claim that she was a refugee. He relied upon the decision of Bingham J. in Fornah v. Secretary of

State for the Home Department [2007] 1 AC 412

Decision

25. The burden of proof that is on the applicant in the present application is that set out by Carroll J. in McNamara v. An

Bord Pleanála namely:-

“In order for a ground to be substantial, it must be reasonable, it must be arguable, it must be weighty. It must not

be trivial or tenuous.”

26. Applying this test to the present proceedings, the court has come to the conclusion that it is certainly arguable that

the decision maker failed to take into account, in coming to his conclusions, the applicant’s claim for refugee status based

upon political opinion that might be imputed to her as a possible supporter of A.D. Having so held, the court further

concludes that the applicant has made out a reasonable case to maintain that the first named respondent accordingly did

not consider the relevant country of origin documentation material to her claim for asylum status based upon her alleged

political opinion (real or imputed) as a support of A.D.

27. In coming to the aforementioned conclusion, the court is not convinced that the interpretation which counsel for the

respondent sought to place on para. 3 of the first named Tribunal member’s report, is necessarily correct. In reading

through the conclusions which run from paras. 3.1 to 3.10 inclusive, the court would have expected to find, had he

considered it, the first named respondent’s recitation of the fact that the applicant applied for asylum on the grounds of

political opinion (real or imputed) set out in a separate paragraph of his report before he moved on to deal with the issue

of State protection at paragraph 3.3. Further, the court is not at all convinced that the interpretation which counsel for

the respondent sought to ascribe to para. 3.6 of the decision of the first named respondent is necessarily correct. The

court agrees with counsel for the applicant that there is a reasonable case to be made that the Tribunal member was, at

that point in time, solely concerning himself with the applicant’s claim for refugee status based upon her being at risk from

a tribal ritual and thus found himself dismissing the country of origin documentation as being immaterial to the claim which

he was considering. Accordingly, the court cannot be certain, as is contended for by counsel on behalf of the respondent

that it should conclude from para. 3.6 that the Tribunal member considered the applicant’s claim for refugee status based

upon actual or imputed political opinion and then discounted it by reason of the fact that the claim was made late and

accordingly was an embellishment of the original claim which had been solely confined to a fear of being persecuted in the

course of a tribal ritual.

28. In coming to its aforementioned conclusions, the applicant has made out a reasonable case that the first named

respondent did not consider both grounds upon which refugee status was sought and the documentation lodged in the

course of the appeal merely because of those facts recited by him at para. 5 of his decision. The court has had regard to

the decision of Hardiman J. in G.K. v. Minister for Justice Equality and Law Reform [2002] 2 I.R. 418 where he stated:-

“That a person claiming that a decision making authority had, contrary to its express statement, ignored

representations which it had received needed to produce some evidence, either direct or inferential, of that

proposition before he could be said to have an arguable case.”

29. In the present case, the applicant has made out a reasonable case to argue that para. 5 of the first named Tribunal

member’s decision in this case should be treated as a formulaic statement of words particularly having regard to the

Tribunal member’s error in recording that he had “listened to the applicant’s evidence and to the submissions ably made on

his behalf”. In further support of the applicant’s claim in this regard is a fact noticed by the court only after the

conclusion of the proceedings and that is that the first named respondent, having set out his conclusions at pp. 14 and

15 of his report at paras. 3.1 to 3.10 inclusive went on immediately on the following page of his report without including

any para. 4 to record his decision in paragraph 5. It therefore appears to this Court that the applicant has made out a

prima facie case that the Tribunal member did not consider both grounds of appeal submitted by the applicant nor the

documentation lodged in support of the same.

30. The court concludes that the finding of the first named respondent to the effect that the applicant’s claim for refugee

status was not credible based upon her account of events in her village involving the masquerade and potential sacrificial

rite was clearly sustainable on the evidence. This Court, as advised by Peart J. in Imafu v. Minister for Justice, Equality

and Law Reform [2005] IEHC 416 should not fall in to the trap of substituting its own view on credibility for that of the

Tribunal once it is satisfied that such a finding was open to the Tribunal member on the facts. In circumstances where

the first named respondent rejected the applicant’s claim for refugee status based upon the lack of credibility which he

attached to her account of the events upon which her application was predicated, the first named respondent cannot be

criticised for failing to proceed to make any determination as to whether or not the applicant belonged to any social group

which might have entitled her to refugee status.

31. The court accepts the respondent’s submission that the applicant has not made out any case to maintain that the

Tribunal member’s decision can be impugned on the basis that in the course of his decision, he relied upon the fact that

the applicant was undocumented. The court does not believe that the applicant has made out any reasonable case that

the statutory declaration of age in any way undermines this finding of fact. Further, even if the Tribunal member should

have considered the statutory declaration of age to be a document such that would preclude him from concluding that

the applicant was undocumented in this jurisdiction, the applicant has not shown that his finding of fact in this regard

was material to his decision. The Tribunal member in the course of his decision appears to have accepted the applicant’s

age and nationality which are the only facts truly vouched by the statutory declaration.

32. For all of the aforementioned reasons, the court will grant the applicant leave to seek the relief claimed at para. A, B,

C and D of her notice of motion on the grounds set forth at para. E(iv), (ix) of the statement required to ground the

application for judicial review.