CC v Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform, Attorney General and Ireland

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Respondent/Defendant:Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform, Attorney General and Ireland
Court/s:High Court
Citation/s:[2014] IEHC 491
Nature of Proceedings:Judicial Review
Judgment Date/s:28 Oct 2014
Judge:McDermott J.
Category:Refugee Law
Keywords:Asylum, Country of Origin Information, Persecution, Refugee
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/7975512d-cb56-4333-9ed9-c41f2e2e1a44/2014_IEHC_491_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:

The applicant was a Nigerian national. He claimed asylum in Ireland and maintained that he had a fear of persecution arising out of his homosexuality, which he became aware of around 2004. He said that he had been repeatedly beaten in Nigeria on account of it and barred from his church. His family turned against him and threatened to have his boyfriend killed. The police offered him no protection. He said that he lived in his home village until 1997 and then went to Enugu state until 2006, where he had his first homosexual relationship.

In 2006 he moved to a different town where he remained until November, 2008. He then lived in Lagos between November, 2008 and January, 2009. Country of origin information indicated that sexual relationships between homosexuals were outlawed in Nigeria, but that there had not been any prosecutions. The applicant claimed that the police were arresting homosexuals as and when they became aware of them, but he acknowledged that when he reported his ill-treatment to the police, he had not been arrested.

The Refugee Applications Commissioner made negative recommendations on their application for asylum. They appealed unsuccessfully to the Refugee Appeals Tribunal.

The Tribunal made a number of adverse credibility findings on his claim. It noted that he made contradictory statements about whether he had ever had a girlfriend. It considered incredible his claim that he had maintained a relationship with his alleged boyfriend after the latter had revealed the existence of it to local villagers.

Reasoning:

The applicant took issue with what he said was the failure of the Tribunal to make any clear findings as to whether his evidence in respect of his claimed homosexual orientation or history was accepted. He also challenged the decision on the ground that the incorrect legal test was applied to the issue of internal relocation considered by the Tribunal.

The court held that it was unclear from the decision of the Tribunal whether or not it accepted that the applicant was homosexual, and that it was essential that such a clear determination be made. The Tribunal also failed to consider whether, if he was homosexual, state protection would be available to him in respect of the assaults, harassment and threats suffered by him. The matter of internal relocation was also held by the court to have been given little consideration. Bearing in mind the country of origin information, which indicated that sexual relations were outlawed between homosexual men in Nigeria and that they were likely to face societal discrimination and isolation, no conclusion had been reached as to how he might relocate if, indeed, he was homosexual.

The court held that if he was considered to be credible, the Tribunal was obliged to conduct the assessment laid down by the British Supreme Court in HJ (Iran) v. Secretary of State for the Home Department [2012] UKSC 31, namely by taking into account whether the applicant lived openly as a homosexual or intended to in the future, or felt obliged to live discreetly by reason of the violence and threats of others and the failure of the state to offer any state protection to him.

The court accordingly found that the Tribunal had failed to make a finding on the core of the applicant’s claim. It was not satisfied that the further evidence adduced by the respondents about the applicant’s fathering of a child following a short-lived acquaintance with the child’s mother, which occurred many years after the alleged events upon which the application was based, should be regarded as a sufficient basis upon which it might exercise its discretion to refuse the application for certiorari of the decision owing to lack of candour on the part of the applicant. It noted that that aspect of the case could, however, be the subject of further evidence at any re-hearing of the appeal.

Decision:

The court therefore quashed the Tribunal’s decision.

Principles:

Where an applicant claims to be homosexual and to fear persecution or serious harm in his country of origin, it is incumbent on a protection decision-maker to make a finding as to whether that claim is credible. If it is, then the assessment laid down by the British Supreme Court in in HJ (Iran) v. Secretary of State for the Home Department [2012] UKSC 31 should be carried out.

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