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ON and Others v Refugee Appeals Tribunal and Others

Applicant/Plaintiff: O.N., E.N. (a minor), C.N. (a minor), C.N. (a minor) and O.N. (a minor)
Respondent/Defendant: Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
Citation/s: [2015] IEHC 585
Nature of Proceedings:Judicial Review
Court/s:High Court
Judgment Date/s: 22 September 2015
Judge: Faherty J.
Category:Refugee
Keywords:Minor; Credibility; Weight Reasons; Internal relocation
Country of Origin: Nigeria
URL: http://www.courts.ie/Judgments.nsf/0/22A0176572A35F1980257ED60032592D
Geographical Focus:Ireland

Facts:
The applicants were nationals of Nigeria. The first named applicant had four children, three whom were born in Greece and another born in Ireland. She claimed asylum in Ireland on the basis that she was at risk of persecution in Nigeria on grounds of imputed political opinion allegedly arising out of her husband’s activities as a community youth leader and activist in Port Harcourt in Rivers State, and by virtue of her own activities in tandem with those of her husband, all of which was connected with unrest in relation to the oil industry and its impact on the local area. She said that, following a demonstration, protesters had been taken away by the security forces and her home had been burnt down. She was told that she and her husband were being sought by the authorities.

She sought the help of her priest, who arranged for her to leave Nigeria. She said that she travelled via different countries, including France, eventually reaching Ireland. She was accompanied by an agent through immigration control and showed the immigration officials in France a red document which she believed was a passport. She then returned the document to the agent. On arrival in Dublin, she experienced no problems at immigration and she applied there for asylum. Again, she returned the documents to the agent and did not see him thereafter.

She had a prior immigration history. In 2002 she went to Greece for a holiday. She stayed in Greece until 2003 and returned to Nigeria on board ship, disembarking using a sailor’s passport. She said that she returned to Greece in 2004 due to religious violence in Nigeria. She applied unsuccessfully for asylum in Greece and, despite being told to leave, remained there for three years. She returned to Nigeria in 2007, travelling by container ship.

Having investigated the applicants’ claim, the Refugee Applications Commissioner made a negative recommendation on it, which was affirmed by the Refugee Appeals Tribunal, whose decision they challenged in these proceedings.

The Tribunal made a number of adverse credibility findings on the claim and also found that internal relocation was available to the applicants.

The applicants took issue with a finding that the first applicant had demonstrated “a marked inability” to answer certain questions, arguing that it had not identified any such questions in the decision. They also argued that the Tribunal had no evidential basis for the finding that the first applicant had remained in Greece since 2002. Finally, they took issue with the finding that the first applicant’s statements were not coherent or plausible and ran counter to available specific and general information relevant to her case.

The court quashed the Tribunal’s decision.

Reasoning:
The court found that the finding that the first applicant had demonstrated a marked inability to answer questions was not intelligible from the face of the decision, and set aside that finding.

The court then held that the Tribunal’s finding that the applicant remained in Greece without returning to Nigeria, as she had alleged, was flawed. Absent some factual evidence to that effect, it was not open to it to draw such an inference. In its view, the lack of any documentary evidence of travel to and from Greece could not logically or rationally lead to the conclusion that the applicant had stayed in Greece.

The court rejected the complaint that the Tribunal had erred in finding that the first applicant had not made a genuine effort to substantiate her claim and that her statements were not coherent or plausible and ran counter to specific and general information relevant to her claim. Referring to reg. 5(3) of the EC (Eligibility for Protection) Regulations 2006, it noted that sub-reg. (3)(a) to (c) had not been complied with by the first applicant bearing in mind her lack of any reasonable explanation for the absence of identification documents and any objective documentation to support claims made by her in oral evidence.

Turning to the applicants’ complaint that their core claim had not been dealt with by the Tribunal, the court noted that the Tribunal had observed that there was nothing in country of origin information to show that the Nigerian authorities had interfered with the first applicant’s home or indeed with other persons in the area of Port Harcourt where she claimed to have lived, and held that that finding was open to it. Nonetheless, it held that, notwithstanding that, there remained the possibility that, had the first applicant’s subjective account of events in Nigeria been found generally credible, it could have outweighed the persuasive value of the country of origin information. In its view, the extent to which the core claim was dealt with by the Tribunal was largely influenced by the various credibility findings reached by it, not least the finding that the first applicant had remained in Greece since 2002.

Given that the court had found two of the credibility findings made by the Tribunal to be unsound, and being unaware of the weight placed on them by it, it quashed the decision on credibility.

The court held that there had not been a proper consideration of internal relocation by the Tribunal. It did not appear to have identified a place of relocation, merely saying that she could relocate outside the Niger delta area; however, insofar as Lagos had been canvassed as such with the applicant at the hearing, the decision did not give any indication of what was canvassed with the applicant in terms of the reasonableness of her relocating there. There was no indication that her concern that she did not speak Yoruba or that English was not spoken in Lagos was assessed in considering whether or not it would have been reasonable for her to relocate there. Nor was there any reference to her position as a woman with children.

Decision:
The court therefore quashed the Tribunal’s decision.

Principles:

Decision-makers should not draw negative inferences in the absence of a proper evidential basis.

In deciding whether to set aside a decision for flaws in a credibility analysis containing a number of findings, a court should refrain from doing so unless it is unsure what weight has been attached to the various findings.

A decision-maker minded to make a finding on internal relocation should identify a proper place of relocation.


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Key European case law

A Member State is obliged to examine an asylum application if transfer would expose the applicant to a serious risk of a violation of fundamental rights

Court of Justice of the EU ruling on the transfer of asylum seekers under the EU Dublin Regulation Cases C-411/10 and C-493/10 M.E.


McCarthy: Rights of EU citizens to regularise the residence of their non-EU spouse

Court of Justice of the EU judgment in the case of McCarthy v Secretary of State for the Home Department (in UK).


Zambrano: Rights of non-EU parents of a child with European citizenship to live in the EU

Court of Justice of the EU judgment in the case of Zambrano v Office national de l’emploi (in Belgium).

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