E. (B.V.) & Anor v.Minister for Justice, Equality and Law Reform & Anor [2008] IEHC 230 (10 June 2008)

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Cite as: [2008] IEHC 230

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Neutral Citation: [2008] IEHC 230

    THE HIGH COURT
    2006 868 & 870 JR
    BETWEEN
    B. V. E. and O. N. E. (a minor suing by her mother and next friend, B.)
    APPLICANTS
    AND
    THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM and
    THE REFUGEE APPLICATIONS COMMISSIONER
    RESPONDENTS
    EX TEMPORE JUDGMENT OF MR. JUSTICE BIRMINGHAM delivered on the 10th day of June 2008
  1. These two cases have been heard one immediately after the other, so I am giving one judgment that will deal with both cases. The cases are essentially linked, in the sense that the first named applicant (2006/870 JR) is the mother of the second named minor applicant (2006/868 JR) and has acted as next friend in relation to the second set of proceedings. At issue in these proceedings are challenges to a decision/recommendation of the Office of the Refugee Applications Commissioner ("ORAC"), dated 7th July 2006, which recommended that the applicant not be declared to be a refugee within the meaning of the Refugee Act 1996 (as amended).

    2. I. The Adult Applicant's Case
  2. The adult applicant states that she is a national of Nigeria, born on 7th December, 1966. She states that she arrived in the State on 7th June, 2006, having travelled by road from Lagos to Ghana, by air from Ghana to Milan and by train and ship from Milan to Ireland. It is her case that she is at risk of persecution in Nigeria, arising from her husband's political activities. Her husband is, she says, a member of an organisation known as the youth activity group, which has resulted in her being targeted by the Nigerian military.

  3. In particular, the adult applicant refers to an incident that she says occurred on 17th February, 2006, when armed military personnel came to the village where she was living and began dragging people from their houses. The military mainly focussed on men on that occasion. This enabled the applicant to make her escape from the incident scene, though she states that she was the subject of brutal beating by the military on this day. The applicant then moved to another village, Seigbene, and then to another village again, Odi, and again from there to a further village, Akbore, where she remained for about two months before leaving Nigeria.

  4. The adult applicant expresses her concerns now partly in terms of a fear that she - and no doubt other persons in similar positions to her - would be arrested as a means of applying pressure on her husband to come out of hiding.

    5. The ORAC decision/recommendation
  5. In her negative decision/recommendation in respect of the adult applicant, the ORAC-authorised officer felt that there were – to use her phrase – certain credibility issues surrounding the applicant's testimony which served to undermine her allegations. The ORAC officer suggested that if the military were looking for the applicant, they could have located her during the February to June period while she was in Nigeria, and that this was particularly so having regard to the resources available to a military force. The ORAC officer concluded, arising from this view, was that it was unlikely that the adult applicant would be targeted if returned to Nigeria. The ORAC officer also considered that the adult applicant's account of the escape indicated that she was not, in fact, being targeted personally and that part of her "testimony" was seen as lacking credibility.

  6. The ORAC officer also criticised the applicant for her lack of knowledge about a particular location in Nigeria, the city of Warri. I will return to this aspect, which is at the heart of the challenge.

    7. The Issues in the Case
  7. There are essentially two bases for the applicant's challenge to the ORAC decision/recommendation, one primary and one secondary, which I would summarise as follows:-

    8. a. An alleged error of fact as to whether the applicant was born in or was a resident of Warri; and

    b. A reference to section 11B of the Refugee Act 1996, as amended.

  8. Before assessing these matters in detail, I pause to note that what is in issue here is a challenge to a recommendation of ORAC. This in a situation where the applicants have a statutory right to appeal, which appeal will involve an oral hearing. More particularly, this is a challenge based on an alleged error of fact which, it is said, invalidates the decision and, in particular, undermines the conclusion in relation to credibility. Now, as I have said more than once, the relevance of the existence of an appeal has been considered in a number of different contexts, and in particular has been considered in the asylum context.

  9. The decision in Akpomudjere v The Minister for Justice, Equality and Law Reform & Ors (Unreported, High Court, 1st February, 2007) is particularly helpful because Feeney J. reviews all the authorities in this area. What seems to emerge from the case is that the existence of a right of appeal is not, in itself, a bar to seeking judicial review of the decision in the first instance, but the existence of that right of appeal is always a relevant consideration in considering whether judicial review lies or not. That observation has to be seen in the context that the Supreme Court made clear in the case of Stefan v The Minister for Justice, Equality and Law Reform [2001] 4 IR 203 that the asylum process is a distinct, two stage one, and that an applicant is obviously entitled to fair procedures at both stages and is not to be short-changed by a denial of fair procedures at first instance.

  10. It seems to me that the question of the availability of an alternative remedy is most particularly relevant where an applicant is seeking a review, reconsideration, or a reopening of findings in relation to credibility, because in those circumstances, the possibility of an appeal on oral evidence is particularly relevant.

  11. Linked to the relevance of the existence of an alternative remedy is the question of whether an error of fact by a decision-maker is a proper matter for judicial review, or a matter for appeal. Well known cases, such as Ryanair Ltd. v Flynn [2002] 3 IR 240, and the decision of O'Sullivan J. in Aer Rianta v The Aviation Commissioner [2003] IEHC 12, leave no doubt that it is not every mistake of fact that gives rise to judicial review. It is equally the case, however, that an error may be so fundamental that it cannot be said that all relevant material can be said to have in fact been considered by the decision-maker. Of note in that regard is the decision of Finlay Geoghegan J. in Traore v The Refugee Appeals Tribunal & Anor [2004] IEHC 606. Indeed, only this morning I granted leave in a situation where there was an arguable error as to whether identification documentation had been produced and where the Tribunal Member was indicating that this was an issue to which significance was being attached; see Nadri v The Refugee Appeals Tribunal (ex tempore judgment, Birmingham J., 10th June 2008).

    12. (a) The alleged Error of Fact
  12. The suggested error of fact in the present challenge arises from the following paragraph in the ORAC decision/recommendation:-

    13. "The applicant contends she lived in Warri all her life. The applicant was asked a number of questions about Warri, asked about the population of Warri City. The applicant stated it is approximately three million people but some had moved out. According to country of origin information it is approximately 500,000. When this was put the applicant, she stated that is was "Because of the out flock of people, people are leaving." The applicant was asked the name of the local television and radio station and stated, "The National Television Authority; the local station is Warri TV corporation." According to country of origin information, it is Delta Rainbow television. When this discrepancy was put to the applicant, she stated, "It is the same thing". The applicant was asked where the airport in Warri is and stated, "It is in Okemagba town. This is where the airport is in Warri." According to country of origin information, the airport in Warri is in Osubi. When this was put to the applicant, she stated, "Osubi is close to Okemagba." The applicant was then asked why she didn't say the airport was in Osubi when asked, and she stated, "I said the airport was close to Okemagba. If I didn't say Osubi, I'm sorry"."
  13. The ORAC officer goes on to observe:

    14. "The questions the applicant was asked in relation to Warri were in relation to basic information about the area and it would be expected that a long term resident of the area would know the answers. This casts serious doubt on the applicant's contention that she is, in fact, a resident of Warri and, as this is a central element to her allegations, serves to seriously undermine her credibility and indeed raises doubts that the incidents that she alleges did, in fact, occur."
  14. I think it is worth drawing attention to the fact that in the introduction to this paragraph, the ORAC officer recited that the applicant contended that she lived in Warri all her life. It seems that the ORAC officer considered that the applicant's failure to answer questions about Warri correctly cast serious doubts on the applicant's contention that she is, in fact, a resident of Warri.

  15. I am quite satisfied that if there was an error here it was an error within jurisdiction, arising at most from a misinterpretation of answers given in the ORAC Questionnaire and at the ORAC interview.

  16. It does not seem to me that it is as clear-cut that there was an error as the applicant's affidavit would suggest. In her affidavit, the applicant offers a detailed account of her movements throughout Nigeria that now involves recording the fact that she spent a significant part of her life in Lagos. Those details do not appear at any stage in the Questionnaire or at interview. Instead, it seems to me that on a number of occasions, the applicant gave answers that would certainly suggest that she had lived all her life in the one area; one area, perhaps, as distinct from one city. For example, at page 8, question 21 of the Questionnaire, she was asked: "Why did you leave your country of origin?" She responded, "I have lived all my life in this once peaceful community". Again, at the interview she was asked, at page 4, question 5, "How long did you live there?" This was a reference to the address which she provided, part of which was Warri southwest, local government, Delta State. Her response was, "I was born there in Warri town. This is my main address, but I lived different places".

  17. It is, in my view, necessary to put into context the issue of the possible mistake as to whether the applicant was born or resident in Warri. The issue is not where she lived or where she was born as such, but rather that the ORAC officer felt that there was an inconsistency between the applicant's lack of knowledge of Warri and the applicant's account (as the officer understood it to be). In that context, it seems to me highly relevant that each of the issues raising concern – i.e. the population, the name of the radio station, the location of the airport - were put to the applicant, and she was specifically provided with an opportunity to comment.

  18. The applicant in this case, on her own account, is an intelligent, well-educated woman. It is inconceivable that if she was being disadvantaged by the questioning as someone who was not in fact from Warri that she would not have said so. I am entirely satisfied that no substantial grounds for seeking judicial review have been made out. There will be every opportunity to probe these issues at the appeal hearing and in my view that is clearly the proper place to do it.

    19. (b) Section 11B, Refugee Act 1996
  19. The ORAC officer referred in the decision/recommendation to having regard to section 11B of the Refugee Act 1996, as amended. The applicant contends that the ORAC simply asserts that regard was had to section 11B. It must be understood, however, that the statute mandates the ORAC officer to have regard to the factors listed in section 11. In this case, it appears to be the applicant's case that she spent several months in Nigeria between the incident that effectively precipitated her flight, and her departure from the country. It also seems that her journey to Ireland was quite an elaborate and complex one. It seems to me to be entirely understandable that the ORAC officer would have regard to this matter, even if not mandated to do so by statute, though in fact that was, of course, the case.

    20. II. The Minor Applicant's Case
  20. The second named minor applicant was born on 14th June, 2006, very shortly after her mother's arrival in the State. Her mother agreed to the incorporation of her daughter's asylum claim in hers. No specific fears or concerns for her daughter were advanced by the adult applicant but in an affidavit sworn for the purpose of these proceedings, the adult applicant indicates for the first time that she would have wished to advance fears in relation to female genital mutilation and the fact that the Nigerian police would not offer effective protection.

  21. In that regard, reference has been made to certain observations made by Peart J. in Ojuade (Unreported, High Court, Peart J., 2nd May, 2008), though it must be said that those observations were made in a context where Peart J. was satisfied that there had in fact been independent consideration of each of the claims. I think it is worth noting, however, that Ojuade was essentially a female genital mutilation case.

  22. It is readily apparent, I think, that there will be concerns, or can be concerns, for each party involved in relation to female genital mutilation, whether that is a daughter suggested to be at direct risk or a parent concerned for a daughter and perhaps fearing that their own position is at risk because of their opposition. However I find this suggestion, late in the day, that there are fears in relation to female genital mutilation singularly unimpressive. It seems to me to be redolent of legalistic, formulaic pleading by the applicant.

  23. It is also suggested that there was an onus on the ORAC officer to raise issues whether there were any fears in relation to the minor when her mother was there and in a position to do so on her behalf. This seems to me to be completely lacking in reality.

  24. Far from there being any substantial grounds in respect of the applicant minor's situation that could be described as reasonable, weighty or arguable, the grounds relied on can best be described as trivial or tenuous, to use the language of Carroll J. in McNamara v An Bord Pleanála (No. 1) [1995] 2 ILRM 125, though adjectives such as 'artificial' or 'contrived' would also seem in point.

    25. Conclusion
  25. In the light of the foregoing considerations, I am satisfied that in neither case have substantial grounds been made out. Accordingly, I refuse the application and leave both applicants to their remedy by way of appeal.

    26. Approved Birmingham J.

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