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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> C. (O.O.) v. Refugee Applications Commissioner and Ors [2002] IEHC 142 (2 October 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/142.html Cite as: [2002] IEHC 142 |
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Record No. 720JR/2001
Between
Applicant
Respondents
JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON WEDNESDAY, THE 2ND DAY OF OCTOBER 2002
MR. JUSTICE SMYTH: The Applicant is a Nigerian national, a single man, whose date of birth is 23rd March 1975. He speaks fluent English. On arrival in the State on 13th August 1999, by plane from Amsterdam, he presented a South African passport at Immigration. He stated he was here to buy spare parts for Japanese cars. He had no business contacts in Ireland and no business cards of his own. A check was made by An Garda Siochana at Dublin Airport at the time with the South African authorities and it was revealed that the passport (in the name of C. Tseshie with a date of birth of 23rd March, but 1966) was false. It was only when his passport was found to be false that the Applicant then claimed asylum as a refugee. The information given by the Applicant on 13th August 1999 (on which date he acknowledged receipt of documentation, standard for asylum seekers) an ASY1 form was completed, which indicated he departed from his country of origin on 20th July 1999, and that the "route taken" was South Africa, Mali, Dubai. In response to a query on a Questionnaire Form completed by the Applicant on 16th August 1999, it is stated that he spent two days in Mali and four days in Dubai, but he would stay in neither because they were Muslim and did not speak English. In the course of an interview held on 14th February 2001, he stated that a lorry driver who took him out of Nigeria to Mali "introduced me to a man who provided me with a South African passport". It would appear, that contrary to what was stated on the ASY1 form, the Applicant did not travel to or through South Africa on his route to Ireland. The information supplied by the Applicant indicates that he had education up to secondary school certificate and testimonial (which the papers seem to equate with Leaving Certificate level). He was self-employed between 1993 to 1999, and at the time of his departure from his country of origin he was the Financial Secretary to a Spare Parts Dealers Association. This was clearly understandable because his trade or business was Japanese motors spare parts in the fairly used department. He did not belong to any political party. Although he was single, he noted in completing the Questionnaire that he was engaged; when asked at interview, a year and a half after he arrived in Ireland, he indicated that his fiancee was still in Nigeria "I think. I have not been in touch with her."
The Applicant (in the answers to queries in the Questionnaire) stated that his reason for leaving was to save his life, and the reason why he was seeking asylum was "because of being persecuted by the whole community of mine". This expression referred variously to a probable conflict concerning and, the attribution of wrongdoing to the Applicant, which was unwarranted and caused him apprehension. Subsequent to these matters, the Applicant who was an Ibo left his own home and went to Kano and stayed with a friend who was of the Yurobo tribe. He ceased residing there when there was an outbreak of hostilities between the Yurobo
and Hausa tribes. This is an outline only of events referred to by the Applicant. When asked at interview as to whether at any stage did he report the matters to the police, he replied:-
"... in Nigeria, if you go the police you have to name an individual whom you believe is responsible. If they tried to bring a case against anyone in the community I would have to attend, and then the community could assassinate me and that would be the end of it. No one would be held responsible after that and they would get away with killing me."
Questions were asked of the Applicant as to why he did not stay in either Mali or Dubai and while the answers given are not the same as those given in the Questionnaire, they could not be considered as inconsistent therewith. The interview concluded with this exchange:-
"Q. Who told you to come to Ireland? A. The black man I met [in Dubai or Mali, it is not quite clear] referred me to a travel agency. I told them I wanted to go somewhere for a holiday before I go back and they said I could go to Ireland as Ireland is very good."
Notwithstanding six separate grounds upon which relief was claimed referable to the interview, these were withdrawn or dropped without explanation on the hearing of the leave application. Likewise, grounds concerning Section 11(2) and 13(1) reports and country of origin information available to the Applicant since mid March 2001. Nonetheless, these matters were set out in the Statement of Grounds (dated 1st November 2001) and were withdrawn on the hearing held on 10th April 2002. Altogether from the manifest difficulties concerning the time within which there was no challenge to the decision/ recommendation of the Refugee Appeals Commissioner (hereinafter referred to as 'the Commissioner'), I would not and do not give leave to proceed with judicial review proceedings on the basis of the withdrawal of any grounds that could possibly, and no more, support such a claim.
Not only was no good or sufficient reason for extending the period provided for under Section 5(2)(a) put before the court, no reason at all was offered nor was any claim made to extend time.
The Applicant appealed the decision/recommendation of the Commissioner (the basis of complaint against whose decision was withdrawn at the court hearing) on 2nd April 2001. The grounds of appeal related to (a) political opinion and (b) religion: the statement of appeal set out in a single document what had earlier been placed before the Commissioner in a number of documents. The Applicant had the benefit of an oral hearing of his appeal and legal assistance in both preparing and presenting his appeal.
The member of the Refugee Appeals Tribunal (hereinafter referred to as 'the Tribunal'), whose recommendation was affirmed by the Respondent Minister, concluded that the Applicant had not established a well-founded fear for a Convention reason. A ground of challenge at ground (K) of the statement grounding the application for leave before the court is expressed in this way:-
"The decision to affirm the recommendation wrongly relies on a test as to whether the member has satisfied himself as to whether the Applicant has a well-founded fear of persecution."
In my judgment, this was a lawful conclusion properly open to the Tribunal and the Minister on the evidence before the Tribunal, whose recommendation was available to the Respondent Minister. In R -v- Secretary of State for the Home Department, Ex Parte Sivakumran [1988] 1 AC 958, it was held that whether an applicant for refugee status had a "well-founded fear" of persecution within the meaning of Article 1A(2) of the Convention and Protocol relating to the Status of 7
Refugees was to be determined objectively in the light of the circumstances existing in the country of his nationality; and that the applicant had to demonstrate a reasonable degree of likelihood that he would be persecuted for one of the reasons referred to in Article 1A(2) if he were returned to that country.
In the course of his speech, Lord Templeman, at p.996, states:
"The Convention does not enable the claimant to decide whether the danger of persecution exists. The Convention allows that decision to be taken by the country in which the claimant seeks asylum."
and again
"Damage from persecution is obviously a matter of degree and judgment." The same Law Lord, in Reg -v- Secretary of State for the Home Department, Ex Parte Bugdaycay [1987] AC 514, 535, 537, said as follows:-
"Applications for leave to enter and remain do not, in general, raise justiciable issues. Decisions under the Act are administrative and discretionary rather than judicial and imperative. Such decisions may involve the Immigration Authorities in pursuing enquiries abroad, in consulting official and unofficial organisations and in making value judgments. The only power of the court is to quash or grant other effective relief in judicial review proceedings in respect of any decision under the Act of 1971 which is made in breach of the provisions of the Act or the rules thereunder or which is the result of procedural impropriety or unfairness or 8 is otherwise unlawful ... Where the result of a flawed decision may imperil life or liberty, a special responsibility lies in the court in the examination of the decision-making process."
The next ground advanced by Mr. McMorrow for the Applicant is that the decision to affirm refuses and omits to consider the Applicant's unwillingness to avail of the protection of his country of origin. Altogether from the inconsistency in raising this issue yet accepting the Section 11(2) and Section 13(1) reports, and as regards the judgment of Finnegan J (as he then was) in Zgnat'ev -v- The Minister for Justice, Equality and Law Reform (unreported 29th March 2001), which adopted and applied Horvath -v- Secretary of State for the Home Department [2000] 3 WLR 379), in particular that passage in the speech of Lord Hope, as follows:-
"I consider that the obligation to afford refugee status arises only if the person's own State is unable or unwilling to discharge its own duty to protect its own nationals. I think that it follows that an order to satisfy the fear test in a non-State agent case, the applicant for refugee status must show that the persecution which he fears consists of acts of violence or ill treatment against which the State is unable or unwilling to provide protection."
The Horvath case was more recently considered by the Court of Appeal in Svazas -v- Secretary of the State for the Home Department [2002] 1 WLR 1891, in
particular the passage in the speech of Lord Hope on 9 surrogacy, in which he stated as follows:-
"... 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 is it a practical standard, which takes proper account of the duty which the State owes to all its own nationals."
On the facts disclosed to the decision makers (Tribunal and the Minister in affirming the recommendation), there was evidence upon which the decisions/recommendation arrived at could be reasonably based. Grounds M and O, to wit:-
"(M) The decision to affirm errors in fact in finding that the Applicant had not availed of an option to flee persecution within Nigeria.
(O) The decision to affirm is arbitrary by reason of its failure to give any consideration to objective circumstances in Nigeria."
In the unchallenged reports, under Section 11(2) and Section 13(1) of the Act of 1996, the document in the country of origin information of the British Home Office of April 2000 notes under the heading:-
"Internal Flight:
9.12 Individuals who fear persecution by non State entities, for example those involved in tribal disputes, problems with cult membership,' religious difficulties and so forth, the option of internal flight is a real possibility in Nigeria, taking into account its size and population (for details, see section on geography)."
In the course of his judgment in the Horvath case, already referred to in this judgment, Stuart-Smith LJ remarked:-
"It will require cogent evidence that the State which is able to afford protection is unwilling to do so, especially in the case of a democracy."
In my judgment, the decisions arrived at were made upon evidence before the decision maker -- a view was taken with which the Applicant clearly disagrees. State protection was not sought by the Applicant, nor did he advance a case for seeking it and it being unavailable. The fact that he may not have had much faith in its efficacy is not in point.
The reference to business acumen by the Tribunal is not to the effect contended for in argument and, furthermore, the Tribunal does not say that there was inadvertent victimisation in ethnic conflict or that such could not constitute persecution. With her customary brevity, Ms. Moorehead put the case very succinctly by saying that the Tribunal came to the decision that it was not satisfied that the Applicant suffered persecution on either ground and that if he did he had the option of seeking the protection of the State, which he himself admitted he failed to avail of. In my view, this correctly summarises the position and there is evidence to sustain the submission which in my judgment is correct.
There was, in my judgment, nothing arbitrary or capricious (such as is suggested in ground (P)) in the determination of the decision makers concerning the false passport -- the assessment of credibility was within the remit of the Tribunal who had the facility of observing the demeanour of the witness and was particularly well placed to make a judgment on credibility (see also Baby O -v- the Minister for Justice, Equality and Law Reform (Supreme Court unreported 6th June 2002, judgment of court per Keane CJ, at typescript copy p.20/22). I reject as without foundation the submission that the decision of the Tribunal is unlawful by reason of any form of unconstitutionality simply by reference to the method of remuneration of its members. The Tribunal, its membership and the arrangements for it continuance are set forth in the Second Schedule to the Immigration Act 1999.
I refuse leave to apply for judicial review in this case.
END OF JUDGMENT