NO v Refugee Appeals Tribunal and Minister for Justice and Equality

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Respondent/Defendant:Refugee Appeals Tribunal and Minister for Justice and Equality
Court/s:High Court
Citation/s:[2014] IEHC 509
Nature of Proceedings:Judicial Review
Judgment Date/s:02 Oct 2014
Judge:Barr J.
Category:Refugee Law
Keywords:Asylum, Country of Origin Information, Protection, Refugee
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/5a69d0e6-6550-4bdb-aa0c-5094b830dd5b/2014_IEHC_509_1.pdf/pdf#view=fitH
Geographic Focus:Ireland
Facts:
The applicant was a national of Nigeria. He met his wife as a university student in 1999. He began to experience problems in 2005 when she was told that she could no longer associate with him because she had been promised, by way of a forced marriage, to a man named Alhaji Musa Abu, who had paid a price to her father. She was a Christian and Mr. Abu was a Muslim. In May, 2006, the applicant was kidnapped by Mr. Abu and his associates. Mr. Abu told him to leave his then girlfriend and offered him a bribe to do so. He threatened to kill him if he refused to leave her alone and said that he had committed similar acts of violence in the past. The applicant was released and reported what had happened to the police. They questioned Mr. Abu but, in the absence of witnesses, no further investigations were conducted. In early June, 2006, a number of men, including Mr. Abu, broke into the applicant’s home. They assaulted his fiancée, who was pregnant at the time. They informed the applicant that they were aware of the fact that he had made a complaint to the police and warned him to stay away from the police. They beat him about the head. His fiancée was taken to hospital and had a miscarriage. He went to the police immediately and they promised to investigate the incident. He married his fiancee in December, 2006. That month, a number of men including Mr. Abu set fire to his family home whilst his wife was in residence, but she managed to escape. He reported this to the police. The couple separated, his wife going to live with her uncle in January, 2007. The applicant moved to Lagos and lived there until September, 2007, when he was stabbed in the arm in what he said was an attempt to kill him. His assailant told him that wherever he went in Nigeria, he would be found. He did not report that attack to the police. Instead, he moved to Edo State, but was again assaulted by Mr. Abu’s men in October, 2008. He managed to escape. He then learned that his wife was living in Ireland and he travelled here in October, 2008, and applied for asylum.
In support of his application, he submitted three police reports which had been compiled on foot of the complaints made by him. One of these indicated that the police recommended that charges be brought against Mr. Abu for the offences of assault, killing of an unborn child, arson and threatening violence.
The Refugee Applications Commissioner made a negative recommendation on his application for asylum. The applicant appealed to the Refugee Appeals Tribunal, which affirmed the recommendation on the basis of lack of credibility and availability of state protection. The applicant unsuccessfully challenged the decision.
Reasoning:
The Tribunal had made a number of adverse credibility findings on the applicant’s claim, the first of which based on what it considered to be his failure to provide a reasonable explanation to substantiate his claim that Ireland was the first safe country in which he had arrived since leaving Nigeria, given that he had travelled to it via France and Finland, pursuant to s. 11B(b) of the Refugee Act 1996. The applicant complained that he had not expressly stated that he regarded Ireland as the first safe country in which he arrived after leaving Nigeria. The court upheld his complaint and set aside the finding.
The Tribunal also held pursuant to s. 11B(c) of the Act of 1996 that he had not provided a full and true explanation of how he had travelled to and arrived in the State. The applicant had stated that he flew from Lagos to Paris before travelling on by air to Finland. He spent one night in Finland before travelling to Dublin. The Tribunal held that his account of his travel to Ireland had not been substantiated to the satisfaction of the Tribunal. The applicant submitted that s. 11B(c) of the 1996 Act required the Tribunal to consider whether he provided a full and true explanation for his travel to and arrival in the State. The court held that he had been consistent in his account of his travel during his dealings with the asylum authorities, saying that he had claimed to have been in the company of a trafficker or agent at the time. The Tribunal had not given any reasons why his account was unbelievable and, in the circumstances, the court set that finding aside.
The Tribunal had also rejected the applicant’s credibility on the basis of Mr. Abu’s failure to kill him, despite having a number of opportunities to do so. The applicant impugned this. The court concluded that, in failing to consider that issue in the overall context of the available information, the Tribunal strayed into speculation or conjecture, to the effect that Mr. Abu had not tried to have the applicant killed, something for which there was no evidence when one bore in mind that an attempt had been made to kill the applicant in September, 2007. The court therefore set aside that finding too.
Having set aside all of the adverse credibility findings made by the Tribunal, the court then turned to consider the legality of its finding on state protection. The applicant contended that the police reports showed that state protection was ineffective because Mr. Abu had yet to be apprehended and was on the run. He also emphasised the problem of police corruption in Nigeria and contended that the reliance by the Tribunal on the willingness of the Nigerian police to tackle cults was inappropriate. The Tribunal, on the other hand, relied on the police reports and country of origin information. It argued that the presumption of state protection applied and that the applicant had not displaced it by presenting clear and convincing proof of Nigeria’s inability to protect him.
The court began by upholding the Tribunal’s objection to the applicant’s attempt to introduce at trial by way of affidavit certain country of origin information which had not been before the Tribunal.
The court then noted that the finding on state protection was not expressed to be an alternative to its assessment of the applicant’s credibility, but it held that that was not fatal to it.
Having considered all the evidence, the court held that the Tribunal was entitled to come to the conclusion that the police were taking seriously the complaints made by the applicant and his wife against Mr. Abu. It was a matter for the Tribunal to weigh the evidence presented in relation to the protection afforded to him by the police in Nigeria. The court held that the applicant had failed to rebut the presumption of state protection. It therefore upheld the finding on state protection.
Decision:
The court accordingly severed the flawed credibility findings from the valid finding on state protection, and upheld the Tribunal’s decision.

Facts:

The applicant was a national of Nigeria. He met his wife as a university student in 1999. He began to experience problems in 2005 when she was told that she could no longer associate with him because she had been promised, by way of a forced marriage, to a man named Alhaji Musa Abu, who had paid a price to her father. She was a Christian and Mr. Abu was a Muslim.

In May, 2006, the applicant was kidnapped by Mr. Abu and his associates. Mr. Abu told him to leave his then girlfriend and offered him a bribe to do so. He threatened to kill him if he refused to leave her alone and said that he had committed similar acts of violence in the past. The applicant was released and reported what had happened to the police. They questioned Mr. Abu but, in the absence of witnesses, no further investigations were conducted.

In early June, 2006, a number of men, including Mr. Abu, broke into the applicant’s home. They assaulted his fiancée, who was pregnant at the time. They informed the applicant that they were aware of the fact that he had made a complaint to the police and warned him to stay away from the police. They beat him about the head. His fiancée was taken to hospital and had a miscarriage. He went to the police immediately and they promised to investigate the incident. He married his fiancee in December, 2006. That month, a number of men including Mr. Abu set fire to his family home whilst his wife was in residence, but she managed to escape. He reported this to the police. The couple separated, his wife going to live with her uncle in January, 2007.

The applicant moved to Lagos and lived there until September, 2007, when he was stabbed in the arm in what he said was an attempt to kill him. His assailant told him that wherever he went in Nigeria, he would be found. He did not report that attack to the police. Instead, he moved to Edo State, but was again assaulted by Mr. Abu’s men in October, 2008. He managed to escape. He then learned that his wife was living in Ireland and he travelled here in October, 2008, and applied for asylum.

In support of his application, he submitted three police reports which had been compiled on foot of the complaints made by him. One of these indicated that the police recommended that charges be brought against Mr. Abu for the offences of assault, killing of an unborn child, arson and threatening violence.

The Refugee Applications Commissioner made a negative recommendation on his application for asylum. The applicant appealed to the Refugee Appeals Tribunal, which affirmed the recommendation on the basis of lack of credibility and availability of state protection. The applicant unsuccessfully challenged the decision.

Reasoning:

The Tribunal had made a number of adverse credibility findings on the applicant’s claim, the first of which based on what it considered to be his failure to provide a reasonable explanation to substantiate his claim that Ireland was the first safe country in which he had arrived since leaving Nigeria, given that he had travelled to it via France and Finland, pursuant to s. 11B(b) of the Refugee Act 1996. The applicant complained that he had not expressly stated that he regarded Ireland as the first safe country in which he arrived after leaving Nigeria. The court upheld his complaint and set aside the finding.

The Tribunal also held pursuant to s. 11B(c) of the Act of 1996 that he had not provided a full and true explanation of how he had travelled to and arrived in the State. The applicant had stated that he flew from Lagos to Paris before travelling on by air to Finland. He spent one night in Finland before travelling to Dublin. The Tribunal held that his account of his travel to Ireland had not been substantiated to the satisfaction of the Tribunal. The applicant submitted that s. 11B(c) of the 1996 Act required the Tribunal to consider whether he provided a full and true explanation for his travel to and arrival in the State. The court held that he had been consistent in his account of his travel during his dealings with the asylum authorities, saying that he had claimed to have been in the company of a trafficker or agent at the time. The Tribunal had not given any reasons why his account was unbelievable and, in the circumstances, the court set that finding aside.

The Tribunal had also rejected the applicant’s credibility on the basis of Mr. Abu’s failure to kill him, despite having a number of opportunities to do so. The applicant impugned this. The court concluded that, in failing to consider that issue in the overall context of the available information, the Tribunal strayed into speculation or conjecture, to the effect that Mr. Abu had not tried to have the applicant killed, something for which there was no evidence when one bore in mind that an attempt had been made to kill the applicant in September, 2007. The court therefore set aside that finding too.

Having set aside all of the adverse credibility findings made by the Tribunal, the court then turned to consider the legality of its finding on state protection. The applicant contended that the police reports showed that state protection was ineffective because Mr. Abu had yet to be apprehended and was on the run. He also emphasised the problem of police corruption in Nigeria and contended that the reliance by the Tribunal on the willingness of the Nigerian police to tackle cults was inappropriate. The Tribunal, on the other hand, relied on the police reports and country of origin information. It argued that the presumption of state protection applied and that the applicant had not displaced it by presenting clear and convincing proof of Nigeria’s inability to protect him.

The court began by upholding the Tribunal’s objection to the applicant’s attempt to introduce at trial by way of affidavit certain country of origin information which had not been before the Tribunal.The court then noted that the finding on state protection was not expressed to be an alternative to its assessment of the applicant’s credibility, but it held that that was not fatal to it.

Having considered all the evidence, the court held that the Tribunal was entitled to come to the conclusion that the police were taking seriously the complaints made by the applicant and his wife against Mr. Abu. It was a matter for the Tribunal to weigh the evidence presented in relation to the protection afforded to him by the police in Nigeria. The court held that the applicant had failed to rebut the presumption of state protection. It therefore upheld the finding on state protection.

Decision:
The court accordingly severed the flawed credibility findings from the valid finding on state protection, and upheld the Tribunal’s decision.

Principles:

A state is to be presumed capable of protecting its citizens, in the absence of clear and convincing evidence to the contrary. Where country of origin information and, moreover, police reports specific to the applicant’s claim show a willingness on the part of the police to protect him, a protection decision-maker will be entitled to conclude that state protection is available to him.

In a judicial review of a protection decision-maker’s decision, an applicant will not be entitled to rely upon country of origin information which has not been before the decision-maker.

Where a decision contains two bases for rejecting an applicant’s protection claim, only one of which is valid, the court is entitled to sever the invalid finding and thereby uphold the decision.

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