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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> N.O. -v- Refugee Appeals Tribunal & anor [2014] IEHC 509 (02 October 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H509.html Cite as: [2014] IEHC 509 |
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Judgment
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Neutral Citation: [2014] IEHC 509 THE HIGH COURT JUDICIAL REVIEW [2010 No. 1524 J.R.] IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, SECTION 5 AND IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED) BETWEEN N. O. APPLICANT AND
REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE AND LAW REFORM RESPONDENTS JUDGMENT of Mr. Justice Barr delivered on the 2nd day of October, 2014 Introduction 2. In the event that the applicant succeeds in securing this relief, the applicant also seeks by way of consequential relief, an order of certiorari of the proposal to make a deportation order in respect of the applicant. 3. The applicant also seeks an extension of time within which to bring the within proceedings. Extension of Time 5. There is no replying affidavit on this aspect. In the circumstances, no case has been made that the respondents would be prejudiced by the extension of time sought. 6. I am satisfied that the applicant decided within the relevant period that he wished to seek judicial review of the RAT decision. He acted promptly in going to see his solicitor and a case was prepared for counsel without delay. While there was some delay on the part of counsel in returning the papers to the solicitor, the period cannot be seen as being unduly long, given the demands placed on a busy junior at that time of year. 7. The applicant has stated that due to the inclement weather prevailing at the time, he was unable to travel to Tullamore to finalise the proceedings until 7th December, 2010. The proceedings were issued on the following day. In the circumstances, I am satisfied that there is good and sufficient reason for allowing the extension of time sought in this case. Accordingly, I will extend the time for institution of the within proceedings up to and including 8th December, 2010. Background 9. In May 2006, the applicant was kidnapped by Mr. Abu and his associates. Mr. Abu told the applicant to leave his then girlfriend and he offered him a bribe to do so. Mr. Abu warned the applicant that he would kill him if he refused to leave her alone and that he had committed similar acts of violence in the past. 10. The applicant was tied up by Mr. Abu’s men and left at a road junction in Benin City. He reported this matter to the police, who questioned Mr. Abu but, in the absence of witnesses, no further investigations were conducted. In addition, Mr. Abu was able to persuade the police that he was not involved as he had been out of the country on a business trip at the relevant time. 11. In early June 2006, a number of men, including Mr. Abu, broke into the applicant’s home. They assaulted Itohan who was pregnant at the time. They informed the applicant that they were aware of the fact that he had made a complaint to the police and warned him to stay away from the police. The applicant was badly beaten over the head. His wife was taken to hospital where she suffered a miscarriage. He went to the police immediately and they promised to investigate the incident. 12. Despite all this, the applicant and Itohan were married on 5th December, 2006. That month, a number of men including Mr. Abu set fire to the applicant’s family home while his wife was present therein. His motorcycle was incinerated, but his wife managed to escape out the back of the house. This incident was again reported to the police. The police warned him to be careful for his own security and that Mr. Abu was a dangerous man who had to be avoided. 13. Following the acts of violence perpetrated against the applicant and his wife and the miscarriage she suffered, the couple separated and his wife went to live with her uncle in January 2007. The applicant moved to Lagos at that time and he lived there until September 2007. 14. In September 2007, the applicant was stabbed in the arm in an unsuccessful attempt to kill him. The man who assaulted him told him that wherever the applicant went in Nigeria, he would be found. This incident was not reported to the police out of fear of reprisals. 15. The applicant moved to Iguobaazuwa village in Edo State. In October 2008, the applicant was again assaulted by Mr. Abu’s men but managed to escape. The applicant learned that his wife was living in Ireland and he travelled here on 31st October, 2008 and applied for asylum. 16. The applicant filled out the usual questionnaire and was interviewed pursuant to s. 11 of the Refugee Act 1996 (as amended). In a report pursuant to s. 13 of the 1996 Act, the ORAC recommended that the applicant should not be declared a refugee. 17. The applicant appealed this finding to the RAT and a hearing was held on 19th July, 2010. In a decision dated 28th September, 2010, the RAT held that the applicant was not a refugee. Supporting Documentation
Mrs. I.O. No. 51 Mission Road Benin City
1. I am directed to refer to your petitions dated 5th June and 11th December, 2006, respectively on the above subject matter and to communicate to you the outcome of the matter. 2. You will recall that on 5/6/2006, you reported that you were unlawfully beaten up by one Alhaji Musa Abu and his cohorts, for allegedly not marrying him. That in the process you lost your three month old pregnancy. That your refusal to marry the man that is far senior to you necessitated your incessant attack and assault. That on 11/12/2006, when the said Alhaji Musa Abu received the information that you secretly got married to one Mr. N.O. at the Ikpoba-Okha Local Government Marriage Registry, Benin City on 5/12/2006, he grew annoyed and mobilised some irate youths to set your family house ablaze. That the fire was eventually put off with the swift intervention of some good citizen. 3. Consequents upon your first report, statements were recorded from both parties, while you will recall that you were taken to the hospital for treatment where a medical report later revealed that you lost your three month pregnancy and sustained injuries but Alhaji Musa Abu could not be prosecuted then because your family waded into the matter with a view to resolve the scourge. That sequel to the reprisal which occurred on 11/12/2006 where your family house was set ablaze, your statement together with other witnesses were recorded. That while investigation lasted, effort made to locate Alhaji Musa Abu and his cohorts proved abortive. That the scene of crime was visited where myriads of property touched by the fire were observed and taken to the police station for further probe. 4. From the investigation so far conducted, the following facts were deduced:- (i) That Mr. and Mrs. Igodaro are the biological parents of Mrs. I.O. (ii) That Mrs. I.O. was born on 3rd March, 1977. (iii) That when Mrs. I.O. was twelve years old she was given out in early marriage to one Alhaji Musa Abu who was already 45 years old then. (iv) That the said Alhaji Musa Abu took the financial responsibility of sending Mrs. I.O. to school alongside catering for her parents. (v) That when Mrs. I.O. grew up she discovered Alhaji Musa Abu to be too old for her age and thus fell in love with one Mr. N.O. (vi) That when Alhaji Musa Abu got wind of the secret affairs, he connived with others to beat her up on 5/6/2006. (vii) That Mrs. I.O. was taken to the hospital for treatment where a medical practitioner confirmed her to have lost a three month old pregnancy. (viii) That on 11/12/2006 Alhaji Musa Abu and his cohorts took advantage of Mr. and Mrs. I’s application to resolve the matter which they could not carry out rather their daughter went further to actualized her affairs with Mr. N.O. by getting married secretly at the Marriage Registry to set Mrs. I.O. family house ablaze. (xi) That though Alhaji Musa Abu absconded immediately after the commission of the offence to avoid police arrest and prosecution, investigation also revealed that he left with a threat to kill Mrs. I.O. and her family wherever he comes across them. 5. Recommendation: sequel to the above investigation and findings it is glaring that Alhaji Musa Abu acted out of provocation. That despite this, he lacked the legal backing to embark on such dastardly act. 6. Therefore, while it is recommended that Alhaji Musa Abu and his cohorts be charged to court for the offence of: assault, killing of an unborn child, arson and threatening violence as soon as they are caught, it is advisable that you should be security conscious, as the hoodlums determination to actualize their inordinate threat cannot be entirely invalidated. 7. Your cooperation to this end is highly solicited, in order to avert further incident please.”
Mr. N.O. C/O Mrs. J.O. [Address redacted]. Benin City
1. With reference to a letter dated 15th December, 2008, written by one Mrs. J.O. on your behalf requesting for a reissue of police investigation report on the above subject matter, I hereby reproduce as contain in my earlier report with reference No. CR/3000/EDS/ACBZ/VOL.4/426 dated 1st June, 2006: With reference to your report dated 3rd day of May 2006 on the above subject matter. 2. You complain that Alhaji Musa Abu sent his boys to kidnap and detain you against your will for two (2) days and threatened your life asking you to leave Itohan whom you are presently dating secretly. 3. Based on this complaint, Alhaji Musa Abu and two (2) others were arrested, their residential houses and business premises were visited along with other suspected places which could have been used for the commission of the offence of kidnapping. 4. From the investigation conducted, the following facts emerged:- (i) That Mr. and Mrs. I. who are the biological parents of Mrs. I.O. gave her out to Alhaji Musa Abu in early marriage when she was twelve (12) years old. (ii) That you, Mr. N.O. was in secret love affairs with Itohan. (iii) That at the said time of commission of offence, Alhaji Musa Abu travelled out of Benin City to Republic of Benin, a neighbouring west Africa country on business trip and therefore it was not possible for him to be at the scene of crime though in your statement you said you saw Alhaji Musa Abu in the room you were detained on the second day and he told you ‘you man I am giving you chance to live so you should stop seeing Itohan and I will give you money but if you refuse you will regret ever coming into life’. You said that he told you he had previously dealt with people who are senior to him not to talk of you small boy that you should go and ask about him and should not play smart. The earlier you quit the affairs the better and that he will be monitoring you. He insisted that you should take the money and leave Itohan or else you will regret that he is not a man of empty words. It was immediately your eyes were tied back and you were taken away and dumped. When your eyes were untied by passer by you discovered that you were at Ikpoba Slope by Edwah Road junction. (iv) During the visit to all suspected places that might have been in detaining you for the two (2) days, you were unable to establish the actual place used because in your statement, you said your eyes were tied up at various stages, that did not make you know the actual place of detention. Recommendation: from the above investigation in findings your relationship with Itohan is the basis for your being kidnapped and threatened. The scene of crime cannot be ascertained by you and there is no other independent witness to corroborate your allegations. For now, there is no sufficient evidence to prosecute Alhaji Musa Abu and others, you are advised to steer clear from his path as no one could rule out the actualisation of his threat. You are also advised to be security conscious because it is clear that you are dealing with Alhaji Musa Abu and some faceless people. Case is closed for lack of sufficient evidence. Please.”
Mrs. I.O. C/O Mrs. J.O. [Address redacted.] Benin City
1. With reference to a letter dated 15th December, 2008, written by one Mrs. J.O. on your behalf requesting for progress made so far on the above subject matter. 2. We inform that further to my report reference No. CR3000/EDS/ACBZ/Vol. 5/110 dated 28th December, 2006, recommending that Alhaji Musa Abu and his cohorts being charged to court, the action is yet to be implemented because he is still on the run and evading arrest for this offence and other offences committed by him. 3. Presently his motor company and other business premises are under key and lock because it was discovered that he is into a syndicate in stolen vehicles from neighbouring countries and also received stolen vehicles with the country for sale. He was also discovered to be a member of syndicate that specialises in human trafficking across the border of Nigeria to neighbouring west African countries. 4. All efforts made so far to arrest him proved abortive as his whereabouts is unknown. 5. In view of this events, the case has been closed and may be reopened for prosecution if culprits are arrested in future. It is also still advised that you should be security conscious, please.” 21. In the course of its decision, the RAT made a finding that the applicant had failed to provide a reasonable explanation to substantiate his claim that Ireland was the first safe country in which the applicant had arrived since his departure from his country of origin and that s. 11B(b) of the Refugee Act 1996 (as amended) was applicable. 22. Section 11B(b) provides that in assessing credibility of an applicant for the purposes of the determination of an appeal, the Tribunal:-
… (b) whether the applicant has provided a reasonable explanation to substantiate his or her claim that the State is the first safe country in which he or she has arrived since departing from his or her country of origin or habitual residence.”
25. The respondent accepted that the finding regarding the first safe State offends the principle set out by MacEochaidh J. in the T.(F.) case as the applicant did not expressly state that he regarded Ireland as the first safe State in which he arrived after leaving Nigeria. 26. In these circumstances, I am satisfied that the applicant’s submissions are correct and that this credibility finding of the RAT cannot stand. 27. The RAT also made an adverse credibility finding under s. 11B(c) of the 1996 Act. It provides that the Tribunal must have regard in assessing the applicant’s credibility to “whether the applicant has provided a full and true explanation of how he or she travelled to and arrived in the State”. 28. The applicant stated that he flew from Lagos to Paris. He spent two days in France and then travelled on by air to Finland. He spent one night in Finland before travelling to Dublin. The Tribunal held that his account of his travel to Ireland “has not been substantiated to the satisfaction of the Tribunal”. The applicant submitted that s. 11B(c) of the 1996 Act requires the RAT to consider whether the applicant provided a full and true explanation for his travel to and arrival in the State. 29. The applicant submitted that he had applied for asylum in Dublin Airport having disembarked from a flight from Tampere in southern Finland. An Italian passport in the name of Valentino was confiscated at Dublin Airport. His account of his travel was consistently stated in his asylum questionnaire, his interview under s. 8 of the 1996 Act and his interview under s. 11 of the 1996 Act. In the circumstances, it was submitted that the RAT failed to specify which elements of his travel account were accepted and which were rejected. 30. The applicant further submitted that s. 11B(c) of the 1996 Act was not relied upon by ORAC in its report under s. 13 of the said Act and this finding, it was submitted, was “merely incidental to the personal account given in this case and [does] not go towards his core claim”. See T.(F.) v. Refugee Appeals Tribunal & Ors (supra). 31. The applicant cited the following passage from the judgment of McDermott J. in S.A. v. Refugee Appeals Tribunal [2013] IEHC 277:-
33. The allegations of kidnapping, killing of his unborn child, arson and serious assault were supported by documentary evidence in the form of the police investigative reports. Therefore, in order to arrive at the conclusion that Mr. Abu’s failure to kill the applicant undermined his credibility, this documentary evidence had to be discounted. 34. In I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 353, Cooke J. stated:-
36. The applicant complains that the decision does not follow the scheme under Regulation 5 of the European Communities (Eligibility for Protection) Regulations 2006. At no stage does the RAT attempt to identify which part of the applicant’s story was unsupported by documentary evidence and having done so, how the credibility of the applicant’s story is then to be assessed. See Barua v. Minister for Justice (supra) and D.N. v. Minister for Justice and Equality [2013] IEHC 447. 37. The RAT also made the following finding:-
39. The applicant points out that Mr. Abu had paid a bride price or dowry to marry the applicant’s wife, I., yet the RAT took no account of this when making its assessment. The applicant referred to the Report of the Immigration and Refugee Board of Canada entitled “Nigeria: Forced Marriage Among the Yoruba, Igbo and Hausa-Fulani; Prevalence, Consequences for a Woman or Minor who refuses to participate in the marriage; availability of State protection (February 2006)” which was before the RAT at the time of its decision. In particular, the applicant had regard to the following portion from that report:-
41. The applicant submitted that overall, having regard to the full picture presented by the evidence before the RAT “it is difficult to see that this part of the decision achieves its stated purpose - weighing absence of documents and examining whether aspects of the applicant’s narrative do not need confirmation”. See D.N. v. Minister for Justice and Equality (supra). 42. In the circumstances, it was submitted that the RAT decision failed to assess, adequately or at all the credibility of the applicant and thereby acted irrationally and/or disproportionately, or ultra vires or in breach of constitutional justice. 43. In response, the respondent submitted that the Tribunal held “his account of his travel to Ireland has not been substantiated to the satisfaction of the Tribunal”. The Tribunal had regard to the fact that the applicant claimed to have left Nigeria and travelled to Paris and through immigration, without a passport. The Tribunal also had regard to the claim by the applicant that he travelled from Paris to Finland, and then to Dublin and when asked to explain why he took such an unusual route he replied “I knew little about Ireland”. It is submitted that the Tribunal was entitled to rely on s. 11B(c) having regard to the evidence before it. The respondent submitted that to criticise the Tribunal for using the term “substantiate” in that context, is to over analyse the language of the Tribunal decision. It was submitted that this is not permitted. As Feeney J. stated in O.A.A. v. Minister for Justice, Equality and Law Reform [2007] IEHC 169:-
45. The respondent submitted that as the Tribunal had found that State protection would be available to the applicant, the adverse credibility findings were not fundamental to the decision of the Tribunal. 46. Having considered the submissions on behalf of the parties, I am satisfied that the adverse credibility findings cannot be sustained. In relation to the applicant’s account of his travel to the State, he had been consistent in his account during his dealings with the asylum officials. He had been in the company of a trafficker or agent at the time. The Tribunal gave no reasons as to why his account was unbelievable. I am satisfied that in the circumstances the credibility finding made under s. 11B(c) of the 1996 Act, cannot stand. 47. The rejection of the applicant’s credibility on the basis that Mr. Abu had failed to kill the applicant despite opportunities to do so, had not been explained to the satisfaction of the Tribunal. In arriving at this conclusion, the Tribunal failed to address the applicant’s evidence that he had been subjected to incidents of serious harm by the henchmen of Mr. Abu. This included, kidnapping, the killing of his unborn child, arson and serious assault. I am satisfied that the applicant’s complaints in relation to this finding, that in the absence of an assessment of the full picture from the available evidence and information, this credibility finding is tainted by conjecture and speculation. 48. In order to arrive at the conclusion that Mr. Abu’s failure to kill the applicant, undermined his credibility, the documentation in the form of the police reports, had to be discounted. In I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 353, Cooke J. stated as follows:-
50. The statement that the applicant was “not fleeing from an irate husband whose wife is fleeing from an arranged marriage. In fact the evidence is that the applicant’s wife was never married to [Mr. Abu]”, is a statement which is consistent with the facts presented, but was of no probative value in relation to the applicant’s credibility. It neither confirmed nor denied any credibility issue on the part of the applicant. It was an irrelevant and superfluous statement. 51. In the circumstances, I am satisfied that the Tribunal did not carry out any comprehensive examination of the applicant’s credibility and in the circumstances the findings on credibility will have to be struck down. The Issue of State Protection
54. The applicant has argued that the RAT adopted mutually inconsistent findings in relation to the police reports. At one stage, the RAT stated that “the veracity of these reports cannot be verified. If they are forgeries it goes against the applicant’s credibility”. The applicant complains that no attempt was made to verify the authenticity of these documents, nor was any explanation given as to why the documents could not be verified. In such circumstances, to conclude that they may be forgeries that go against the applicant’s credibility breaches fair procedures and flies in the face of commonsense, in that there is no evidence to support the conclusion. 55. The applicant complains that the RAT then proceeded paradoxically to rely upon the said reports. In this way, it is submitted that the decision creates two mutually exclusive realities:-
In the second, the applicant is the verified victim of serious criminality at the hands of a notorious villain.”
58. The applicant argues that this failure by the RAT to carry out any adequate assessment of the documentation, was compounded by the conclusion reached by the RAT that:-
60. In his interview, the applicant had stated that Nigeria was a corrupt place that works by influence. Even after the initial report in 2006, the applicant was still attacked by Mr. Abu’s men. In these circumstances, the applicant argued that it was incumbent on the RAT to assess whether the clear evidence of corruption and ineffectiveness on the part of the Nigerian police could reasonably explain why Mr. Abu remained at large and whether the applicant therefore had a well founded fear of being persecuted if he were to return to Nigeria. 61. The applicant submitted that the RAT did not appear to address COI relevant to the applicant’s claim and instead reached its conclusions on COI relating to cults as well as the largely ineffective police investigation of the applicant’s complaints. In argument, the applicant had tried to make the case that the RAT failed to have regard to a 2009 Amnesty Report on Nigeria and a 2008 US State Department Report. The respondent objected to the introduction of these reports as they had been exhibited in an affidavit sworn on 23rd April, 2014, by the plaintiff’s solicitor, but had not been put in evidence before the RAT. I rule that the objection of the respondent is well founded and that the said reports could not be relied upon as they had not been before the RAT when reaching its decision on 28th September, 2010. 62. The applicant submitted that the RAT failed to have regard to relevant COI and thereby acted irrationality or disproportionately or ultra vires or in breach of constitutional justice. He submitted further that the conclusion that State protection was available to the applicant was irrational and disproportionate. 63. The respondent argued that regard must be had to the presumption laid down in Canada (A.G.) v. Ward [1993] 2 SCR 689, that a State must be presumed capable of protecting its citizens. In the course of his judgment, La Forest J. stated:-
66. The respondent submitted that it was a matter for the Tribunal to assess the material before it. The respondents relied upon the dictum of Keane C.J. in Baby O. v. Minister for Justice, Equality and Law Reform [2002] 2 IR 169:-
69. The respondent argued that the COI before it demonstrated that while the police in Nigeria can be criticised, there were considerable elements within the Nigerian police force who could be relied upon to fulfil their functions and offer protection when it is sought. The RAT did not quote from the COI, but referred to it in the following manner:-
72. The Tribunal had regard to the contents of the police investigation reports. The Tribunal noted that the documents provided certain information including that Mr. Abu was arrested and later absconded, that he was charged with the offence of kidnapping but that it was demonstrated that he was not present in Nigeria at the time of the kidnapping, and that when he is detained, he will be charged with assault, killing of an unborn child, arson and threatening behaviour. The Tribunal also noted that the police had prevented Mr. Abu from using his premises in pursuance of his criminal activities and that they were intent on charging him with serious criminal offences, once the opportunity arose. 73. The Tribunal concluded that the Nigerian State took reasonable steps to prevent the persecution or the suffering of serious harm by the applicant. 74. The respondent submitted that it was clear that the applicant sought protection from the State on a number of occasions. Though no suggestion had been made by the applicant at any stage that he had any reason to fear the police, or that they would refuse to act for any convention reason. While the applicant contended that the police would not act because of the connections of Mr. Abu, this was neither borne out by the evidence in general or the content of the police investigation reports. The Tribunal concluded both objectively and subjectively that there was evidence that the Nigerian State took reasonable steps to prevent the persecution or the suffering of serious harm by the applicant. 75. The respondent submitted that it was clear from the authorities that State protection was not required to be absolute or perfect. In support of this contention, they relied upon the following dicta of MacEochaidh J. in T.O. v. Refugee Appeals Tribunal [2013] IEHC 258, where the judge noted that the Tribunal Member had:-
‘The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals...under reference to Professor Hathaway's observation in his book, at p. 105, it is axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection.’” 77. The applicant submitted the three police reports as part of his claim for asylum. It was a matter for the RAT as to what weight would be given to the documents. It is clear from the decision that the RAT afforded them considerable weight. The documents established that the police had acted on the complaints made by the applicant. It appears that Mr. Abu had been arrested, or at least questioned in relation to the kidnapping charge but had been able to provide credible evidence that he was out of the country on a business trip at the time that the offence was committed. 78. After the applicant’s house was set ablaze, he made a further complaint to the police. It appears Mr. Abu took flight after this incident. It is clear from the documents that the police were searching for him and when found would charge him with assault, killing an unborn child, arson and threatening violence. In addition, Mr. Abu’s business premises had been seized by the police due to the fact that he was suspected of being part of a syndicate which dealt in the smuggling of stolen vehicles. He was also wanted for the offence of human trafficking. The police stated that Mr. Abu would be arrested on these charges as soon as he was found. 79. In the circumstances, the RAT was entitled to come to the conclusion that the police were taking seriously the complaints made by the applicant and his wife against Mr. Abu. It was a matter for the Tribunal to weigh the evidence presented in relation to the protection afforded to the applicant by the police in Nigeria. 80. The RAT was entitled to hold that in the circumstances outlined, there was adequate State protection available to the applicant in Nigeria and on this basis, he was not to be regarded as a refugee. I am satisfied that this finding was open to the Tribunal Member. The applicant has failed to rebut the presumption that absent clear and convincing proof to the contrary, a State is to be presumed capable of protecting its citizens. Accordingly, I refuse to quash the findings of the RAT on the issue of State protection. The applicant’s application for an order of certiorari striking down the decision of the RAT dated 28th September, 2010, is refused. |