O. (O.A.) v. Minister for Justice, Equality and Law Reform & Anor [2008] IEHC 217 (30 May 2008)

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URL: http://www.bailii.org/ie/cases/IEHC/2008/2008_IEHC_217.html
Cite as: [2008] IEHC 217

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Neutral Citation: [2008] IEHC 217

    THE HIGH COURT
    2006 656 JR
    BETWEEN
    O. A. O.
    APPLICANT
    AND
    THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND
    THE OFFICE OF THE REFUGEE APPLICATIONS COMMISSIONER
    RESPONDENT
    EX TEMPORE JUDGMENT OF MR. JUSTICE BIRMINGHAM delivered on the 30th day of May 2008
  1. In this case, leave to seek judicial review was granted by Feeney J. on 5th December, 2007, on one ground only, namely whether it is permissible for a person who has not seen an applicant at interview to evoke section 13 (6) of the Refugee Act 1996 (as amended), which details the findings that may be made by the Office of the Refugee Applications Commissioner ("ORAC"), which are included in a recommendation that the applicant should not be declared to be a refugee.

  2. In essence, the case raises for consideration the situation that occurs periodically, when the statutory interview with asylum seekers is conducted by one official, with the analysis and recommendation being prepared by another official. On the basis of an affidavit, among the papers, of Ms. Majella Donoghue, it appears that that situation arises approximately ten percent of the time. That affidavit explains why such a situation will arise, by reference to a need for staff flexibility.  It appears there is a significant turnover of staff and that combined with temporary absences for illness, maternity leave, the Commissioner takes the view that this situation is a requirement. This affidavit makes the point that this situation has, in part, contributed to the reduction of the backlog for the processing of applications from over two years to its current level of under six months. Clearly, the elimination of delays is in everybody's interest, not least those asylum seekers who will ultimately prove successful.

  3. This is not the first occasion on which the courts have been asked to consider the assignment of responsibilities by ORAC. As far back as 2001, the issue was before Smyth J, in the case of TEN v. The Minister for Justice, Equality and Law Reform (unreported, High Court, Smyth J., 31st October, 2001). Ironically, as it happens, the arguments that were being addressed to Smyth J. on that occasion were the reverse of those that are at issue now, in that what was being suggested to Smyth J. was that if all roles were performed by one official that the applicant was, in a sense, short-changed.

  4. It may be said that this case at hearing today was at one stage linked with a case of Konadu v. The Minister for Justice, Equality and Law Reform (unreported ex tempore judgment, Birmingham J., High Court, 11th April, 2008), a case which raised similar issues. However, when both cases appeared in a hearing list one after another early in April, the Konadu case was called on and this was deferred until after the outcome of Konadu was known. In the event, I gave judgment in Konadu, rejecting the challenge to the procedures adopted. It will be appreciated, therefore, that the granting of leave in this case by Feeney J. predated judgment in Konadu. Indeed, the written submissions by the applicant in this case were also prepared pre-Konadu and I gather that it may be the situation that the submissions before the Court today are, in fact, identical to those that were relied on by the applicant in Konadu.

  5. In these circumstances, much of the debate today has focused on the applicant seeking to distinguish the present case from that that applied in Konadu. In that earlier case, it was not in dispute but it was expressly conceded on behalf of the applicant that the statutory procedure provided for by the Refugee Act 1996 does not, per se, preclude the possibility of different officials conducting the interview and preparing the report. Mr Ó Dúlacháin, S.C., has not demurred from that concession today.

  6. Today, the emphasis of the argument centres on the fact that the ORAC report was prepared by a person who did not have face-to-face contact with the applicant. Because the official took the view that it was a case to which section 13 (6) applied, that it means that there will be no oral hearing of the appeal and instead the appeal will be determined on the documents. The point is made that the appeal will be on the documents, and the report at first instance will be prepared by someone other than the interviewer.

    7. The Section 13 Report
  7. In a situation where it is not in dispute that the segregation of roles is possible but what is in issue is whether it is appropriate in the particular circumstances, it appears necessary to consider the contents of the report.

  8. The facts of the case emerged from that report. It appears that the applicant returned to her home village after an absence of some 15 years. When she arrived home, there was a curfew in operation. She was unaware of the curfew and, being unaware, it appears she may or may not have breached it. In any event, she found herself held at gunpoint as a result of a suggestion that she had broken the curfew. It is her case that the village King then decreed that she should be sacrificed as part of a yearly custom to worship the village Idol. The applicant has made the case that her father had objected to this but that the King had insisted on it that the sacrifice was to go ahead. However, she says that on the night before she was due to be sacrificed, her father came into the hut where she was being held and released her. She says that her father got past the guards through the use of his spiritual powers and magic.

  9. Dealing with this suggestion, the ORAC official comments that the applicant's account of her alleged escape is neither credible nor plausible. The official doubts that the applicant's father could have secured her escape in such an apparently easy manner, especially given the importance of her availability as a would-be victim for the pending sacrifice.

  10. Mr Ó Dúlacháin says that the ORAC official's analysis involves a degree of assessment of credibility and plausibility. It certainly can be said that in no sense does that turn on any assessment of the demeanour with which the applicant gave her account. Rather, the official's conclusions appear to be an objective assessment of the propositions that were being advanced. One has to say, in that regard, that the conclusions reached can hardly be regarded as surprising.

  11. Having dealt with the proposition that was advanced, the official supports her view that the account given was not credible by reference to country of origin information. I think it is fair to say that it is accepted that the question of relying on country of origin information does not depend on whether the person preparing the report is the same person who conducted the interview or not.

  12. Thereafter, the ORAC official goes on to record the fact that the applicant, having escaped, never reported this to the police, and did not report to any authorities that her fellow villagers had wished to kill her. The ORAC official, by reference to country of origin information, indicates that it would have been possible to seek assistance from the police, that it is improbable the police would have ignored her complaint, and that if she did, the opportunity of bringing a further complaint to higher authorities existed. Again, that is a conclusion that relates not to in any sense the way in which the evidence or the account was presented at interview, but rather in the main it is based on country of origin information

  13. Again, and I suppose by way of an additional leg of the findings, the official concludes that this was a case where the possibility of internal relocation was available. That is an issue which has been referred to by Mr Ó Dúlacháin and I will return to it. At this stage, suffice to say that it is entirely understandable that in a situation where a person is saying not that they were at risk from the State authorities in Nigeria or indeed from any nationwide armed group or anything remotely of that sort but from a limited number of individuals, that the question of internal relocation would loom large because, obviously, an official must be expected to be aware of the fact that Nigeria is a vast country with an enormous population.

  14. It would seem, therefore, that many of the official's findings involved a reference to country of origin information. The official found that the applicant had not sought state protection and it is true that there was not any valid reason for doing so. The applicant says that this finding involved an element of value judgment.

  15. Having dealt with the escape from the village, the ORAC official preparing the report goes on to recite the fact that the applicant says that she initially came under the 'care' of a particular lady, who required her to sleep with shop customers. It appears that the applicant accepted that she was not obliged to stay in that situation and accepted that she had a choice to leave. As the official says, that clearly was a very unhappy situation, but it does not amount to persecution because the applicant had a choice to leave if she wished and she accepted.

  16. The balance of the section 13 report recites the details that were furnished about the applicant's trip from Nigeria to Ireland, the fact that assistance was offered by a particular gentleman whose last name was not known and, from the account given of the travel arrangements, the view of the official that section 11B of the Refugee Act 1996 (as amended) was of relevance.

  17. Against that background, the ORAC official concluded that the applicant had failed to credibly prove that she suffered from persecution in Nigeria or that she would be subjected to persecution if she is returned to Nigeria. It is significant that nowhere is that suggested as being a conclusion that has been prompted or is even in part based on the demeanour of the applicant or the manner in which the applicant responded to questions or avoided answering questions or anything of the sort.

  18. In support of the arguments that have been advanced, Mr Ó Dúlacháin has referred to a UNHCR document dealing with the question of internal relocation. Paragraph 36 of that document seems to discourage at least the invocation of accelerated procedures when internal relocation is in issue. However, it must be said that this was not a ground on which relief was granted and indeed it is advanced in the present case not so much as a separate ground for challenge but on the basis that it shows the direction in which the primary challenge is heading.

  19. It has to be said that the possibility of applying section 13 (6) of the Refugee Act 1996, as amended, is just as open whether the entire process at ORAC is undertaken by one official or by two. The argument that the adoption of accelerated procedures is inappropriate has just as much validity or just as little validity whether one official is responsible or whether responsibilities have been divided between two or more officials. One can well see that there will be cases where internal relocation will involve very difficult questions and judgments as to whether it would be oppressive to expect an applicant to relocate in an identified safe haven. One thinks of the situation of non-Arab Sudanese from the Darfur area presented with the alternative of relocating to a squatter camp in Khartoum, which has been considered by the Court of Appeal and the House of Lords in England in a number of cases in some detail.

  20. I have to say, however, that those complexities and those subtitles seem to be lacking in the present case. More fundamentally, it will be clear that the question of the option of internal relocation was not in any way central to the ORAC decision. At the core of the decision was the official's conclusion that the applicant's account was not credible. As I have already said, that conclusion was not in any way dependent on an assessment of demeanour, the applicant's manner, the extent to which the applicant appeared confident, forthright, evasive, or any of those issues which sometimes find their way into findings and which will obviously be difficult to sustain on the part of somebody who has not had an opportunity to see the individual at first hand. That is far from that being the way in which the decision-maker approached the task of preparing the recommendation. On the contrary, what happens is that the decision-maker recites each aspect of the account that is being presented to her and then poses to herself the question of whether that account is credible and concludes in the negative.

  21. The suggestion that it is not possible for an official who has not had face-to-face contact across the interview table to reach a conclusion in relation to section 13 (6) of the Refugee Act 1996, as amended, must be considered. It is not seriously in dispute that by statute, the Refugee Applications Commissioner is entitled to assign different responsibilities to different officials. Accordingly, it seems to me that the Commissioner must be entitled to do that in all cases because the Commissioner cannot know in advance the cases where section 13 (6) is likely to apply or where it is going to be relied on. To argue the contrary really amounts to saying that the official who has not conducted the interview is constrained from making particular findings. It seems to me there is no basis for that in the statute and that what is argued for would involve a dramatic rewriting of the statute in order to suggest that certain findings are available to some officials and not to others. There is just no support for that approach whatever to be found within the terms of the Refugee Act 1996.

  22. All in all I find it impossible to distinguish this case from the conclusions that I reached in Konadu, conclusions which, at the time, I indicated seemed to me to be consistent with the judgment of Smyth J. in TEN and also with the prior procedures under both Von Arnhem and Hope Hanlon. In those circumstances, I am obliged to dismiss the claim today.

    23. Approved: Birmingham J.

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URL: http://www.bailii.org/ie/cases/IEHC/2008/2008_IEHC_217.html