JO and Another v Refugee Applications Commissioner and Others

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Respondent/Defendant:Refugee Applications Commissioner, Minister for Justice and Equality, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2015] IEHC 451
Nature of Proceedings:Judicial Review
Judgment Date/s:13 Jul 2015
Judge:MacEochaidh J.
Category:Refugee Law
Keywords:Refugee
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/75b932f9-8994-4c2f-85d9-91a922c331a0/2015_IEHC_451_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicants were Nigerian nationals, husband and wife, who applied separately for asylum in Ireland. Their claims were based on fear of “ju-ju / black magic” arising out of a ritual in which they had allegedly participated, during which they learnt that a sacrifice was to occur, prompting them to flee. They challenged the first instance decision of the Refugee Applications Commissioner on their applications, which recommended that they be refused declarations of refugee status. They contended that the Commissioner had erred in basing his assessment of their claims on their fear of ju-ju / black magic and had failed to consider the fear that they might be tracked down in Nigeria on the basis of the first applicant’s surname.

The High Court rejected their claim.

Reasoning:
The High Court held that the Commissioner’s decision adequately identified the entirety of the claimed fear of the applicants, which had been expressed by them as a fear of persons practising “juju”. If some confinement occurred it had been of a trivial nature. No error sufficient to warrant certiorari had been made out on that basis.

The applicants also contended that the Commissioner had accepted the credibility of the second named applicant’s ill-treatment during the ritual and had failed properly to address the impact of such alleged past persecution on her claim, under reg. 5(2) of the EC (Eligibility for Protection) Regulations 2006.

The court held that no such failure had occurred. Multiple manifestations of the effects of “juju” had been described by the applicants. It was not incumbent on the Commissioner to consider each as a form of past persecution. He was entitled to consider all of the events as part of a general fear from practitioners of “juju”.

The applicants argued that, in circumstances where the Commissioner held that the applicants lacked credibility, he had erred in making a finding under s. 13(6)(a) of the Refugee Act 1996 which restricted them to a paper appeal.  The court rejected that. It held that the basis upon which the s. 13(6)(a) finding had been made was unconnected to their lack of credibility, and based instead on their failure to establish a Convention nexus and on the availability to them of internal location and state protection. If the applicants wished to persuade the court that an oral hearing was needed to undo negative credibility findings, some explanation as how that would avail them was needed. Moreover, the Commissioner was legally entitled to invoke a s. 13(6) finding even in cases where serious credibility issues existed, and an applicant could only succeed on such a point if it were established that the use of s. 13(6) was constitutionally prohibited. No such claim had been presented in the instant case.

The court also rejected a claim that the Commissioner had not been aware that he had discretion to make the s. 13(6)(a) finding, no evidence for such lack of awareness having been presented to the court. Even if it had been, the court held that the applicants would have needed to demonstrate that the s. 13(6)(a) findings would not have been open to the Commissioner in the exercise of his discretion, bearing in mind that his decisions made clear that the asylum claims lacked any objective foundation.

The court rejected a claim that all laws in a country of origin had to be investigated before making a decision on an asylum claim. Rather, laws which were said to cause persecution might need investigation. That was of no relevance in the instant case.

The court also rejected a claim that the finding on internal relocation was defective for failing to identify a place of relocation. It pointed out that relocation was reasonable bearing in mind the size, in terms of area and population, of Nigeria and the fact that the fear was localised. Whilst best practice might be to identify a place of relocation, failure to adhere to it would not warrant quashing the impugned decisions. The applicants had also failed to explain why their personal circumstances meant that it would be unreasonable for them to relocate.

The court also rejected the first named applicant’s claim that there had been a breach of fair procedures in failing to notify him of the fact that there had been a negative recommendation on his wife’s claim before he attended interview.

Decision:
The court refused leave to challenge the Commissioner’s decisions.

Principles:

An asylum applicant challenging a decision of the Refugee Applications Commissioner will not be able to set aside a finding made under s. 13(6) of the Refugee Act 1996 unless he or she can demonstrate that such a finding would not have been open to the Commissioner in the exercise of his discretion.

A finding on internal relocation will not necessarily be defective for failing to identify a place of relocation in Nigeria, bearing in mind its size, in terms of area and population, and where the fear is localised. Whilst best practice might be to identify a place of relocation, failure to adhere to it will not necessarily warrant quashing the impugned decisions.

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