Adegbuyi v Minister for Justice and Law Reform

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Respondent/Defendant:Minister for Justice and Law Reform
Court/s:High Court
Citation/s:[2012] IEHC 484, 1 November 2012
Nature of Proceedings:Appeal
Judgment Date/s:01 Nov 2012
Judge:Clark J
Category:Refugee Law
Keywords:Asylum, Geneva Convention & Protocol, Protection, Protection (International), Refugee, Refugee Status, Refugee Status (Withdrawal of)
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/e6e0e80d-bd58-4c2a-b34d-b1d7570a590b/2012_IEHC_484_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts

The applicant had been recognised as a refugee in 2007. In late 2007 and 2008 information came to the Minister’s attention which caused him concern as to the applicant’s need for international protection. The applicant had originally been recognised as a refugee arising out of a criminal case involving a colleague at Lagos State University (LASU) who, it was alleged, forged a document in relation to the applicant’s academic qualifications, and from whom the applicant feared harassment and persecution from which he would not be protected on return. At the time of his application for refugee status he gave the Refugee Applications Commissioner’s office a Nigerian passport. He was issued with a refugee travel document which stated that it was valid for all countries except for Nigeria.

However, it transpired that the applicant had another previously undisclosed Nigerian passport and travelled to Nigeria twice in 2007, in April and July, via the UK. In November 2007 he was questioned by the UK Border Agency (UKBA) at Heathrow Airport. He did not disclose his refugee status and did not use his refugee travel document.  His reasons for coming to the UK and his stated period of stay were disbelieved and the UKBA cancelled his UK visa and returned him to Nigeria. They found his Irish refugee travel document and other Irish documents and forwarded them, together with the passport on which he travelled to the UK, to the Garda National Immigration Bureau (GNIB). This passport also showed immigration stamps for travel to Nigeria in 2006 and twice in 2007 and a business visitor visa for the USA valid for two years issued in December 2006.

The Minister requested the applicant to clarify his travel to Nigeria during the time his application for refugee status was being considered, and subsequently after he had been declared a refugee, why he had two Nigerian passports, and for information in relation to his undisclosed passport found at Heathrow Airport. The Minister informed him that these facts may indicate that he no longer required international protection in the State. Explanations were furnished and further information was sought by the Minister. The applicant stated that he returned to Nigeria for the purposes of the court case and had been in hiding during that time to avoid threats and that he wished to return to Ireland for safety reasons.

The Minister revoked his refugee status in 2010 under Section 21(a), (d) and (e) of the Refugee Act 1996, on the basis that the applicant had voluntarily re-availed himself of the protection of his country of nationality and that he had re-established himself in Nigeria. He further found that the fact that he was given the opportunity to pursue his court case in Nigeria against the people who he alleged persecuted him indicated that he no longer required international protection and the circumstances under which he had been granted refugee status no longer existed. The applicant challenged this decision.

Further information came to light following the Minister’s decision arising from an application by the applicant for residency in Ireland on foot of the decision of the European Court of Justice in Zambrano where stated he was living at his old address at LASU, and that he was granted a new Nigerian passport.

The applicant argued that the Minister was not correct to rely on Section 21(1)(a), (d) or (e) of the Refugee Act 1996 He argued that the Minister was required to  present compelling evidence that circumstances had changed and effective state protection was then available to the applicant in Nigeria. The burden was on the Minister to show that there was such a change.

Reasoning

The Court held that in determining the validity of revocations of refugee status under Section 21(5) of the Refugee Act 1996 it was exercising an appellate function and determining whether or not the decision was wrong, and not a review function as to whether the decision was lawful or unlawful. The Court was satisfied that the correct approach to appeals under s. 21(5) was for the court to consider the revocation appeal on all of the information put before it and it was not confined to the information which was before the Minister. The Court also found that it could substitute its own reasons for those found by the Minister and this interpretation was in accordance with the terms of Section 21(5).

Clark J held that if it was determining the appeal on the basis of the information before the Minister in 2010 it would have approached it on the basis that the applicant was a refugee but that the evidence supported the conclusion that he had voluntarily re-established himself in Nigeria. However, the further information put before the Court strongly indicated a fraudulent asylum claim and that the applicant never needed international protection.

 

The Court considered the grounds for revocation in Section 21(1)(a) to (h) of the Refugee Act 1996. Clark J. held that Section 21(1)(h) (and its corresponding provisions in Regulation 11(2)(b) of the European Communities (Eligibility for Protection) Regulations 2006 and Article 14(3)(b) of the Qualification Directive) had no equivalent in the Geneva Convention.   They operate where evidence emerges that the person should never have been granted refugee status. In that event, the refugee declaration is invalidated and becomes void ab initio. This has been explicitly recognised in the UNHCR Handbook and in the UNHCR Note on Cancellation of Refugee Status which assisted the Court in interpreting Section 21(1)(h).

Clark J. stated that Section 21(1) must be read together with Regulation 11(2) of the 2006 Regulations, which was designed to give effect to Article 14(3) of the Qualification Directive.  Regulation 11(2)(a)  removed the Minister’s discretion to revoke refugee status under Section 21(1), and made revocation mandatory under all sub-sections except Section 21(1)(g).

Decision

The Court held that the Minister had satisfied it that the applicant provided the asylum authorities with information which was false or misleading in a material particular, that there was a link between the falsity of the information and the grant of refugee status, and that he furnished the false information with the intention to mislead the authorities. The Court held that the evidence rendered the core of the applicant’s claim for refugee status unsustainable. Clark J confirmed the decision to revoke the applicant’s refugee status under Section 21(1)(h)  on the basis that the applicant was a person who never needed international protection and his declaration of refugee status was void ab initio.

Principles:

In determining the validity of revocations of refugee status under Section 21(5) of the Refugee Act 1996 the Court is exercising an appellate function and determining whether or not the decision is wrong, and not a review function as to whether or not the decision is lawful. The correct approach to appeals under section 21(5) is to consider the revocation appeal on all of the information put before the court. The court is not confined to the information which was before the Minister. Under section 21(5) the Court may substitute its own reasons for those given by the Minister.

Section 21(1)(h) (and its corresponding provisions in Regulation 11(2)(b) of the European Communities (Eligibility for Protection) Regulations 2006 and Article 14(3)(b) of the Qualification Directive) has no equivalent in the Geneva Convention.   These provisions operate where evidence emerges that the person should never have been granted refugee status, and refugee declaration is invalidated and is void ab initio.

Section 21(1) must be read together with Regulation 11(2) of the 2006 Regulations, which was designed to give effect to Article 14(3) of the Qualification Directive.  Regulation 11(2)(a)  removed the Minister’s discretion to revoke refugee status under Section 21(1), and made revocation mandatory under all sub-sections except Section 21(1)(g).

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