Refugee commissioner ruling did not follow fair procedures

A -v- MJELR and Anor

A -v- MJELR and Anor

HIGH COURT

Judgment delivered by Mr Justice Herbert on May 8th, 2008

JUDGMENT

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A decision by a refugee applications commissioner that an asylum applicant was outside his country of origin because he was fleeing prosecution or lawful punishment rather than persecution for his political opinion, was based on hearsay, speculation and conjecture and contrary to fair procedures, and ought to be quashed. Leave for judicial review of this decision was therefore granted.

BACKGROUND

The 30-year-old applicant was a primary schoolteacher in the city of Warri in Edo state in Nigeria. He arrived in Dublin from Lagos on April 11th, 2006, travelling via Amsterdam, and immediately applied for asylum.

He was interviewed by Michael Grange on behalf of the refugee applications commissioner. He told him he had joined the Niger Delta Political Party in or about 2001 or 2002, and also joined its military wing, the Niger Delta Peoples Volunteer Force, while he was working as a teacher.

His parents were from two different ethnic groups, the Ijan and the Itshekiri, and he spied on the Itshediri for the Ijan (his mother's group) though sometimes also acted on behalf of his father's group. This latter group discovered his activities in December 2005 and threatened him. His mobile phone was taken and his car was shot at twice in January 2006. On the advice of his party boss he resigned from his job and left home. He told the interviewing officer he did not go to the police because they were corrupt, they were seeking to arrest members of military groups, and because they contained members of the Itshekiri ethnic group.

After staying with his girlfriend for a few weeks in Warri he decided it was not safe and went to stay with a friend in Lagos. He asked his girlfriend to go to his house to get money, and she discovered his house had been ransacked. His friend in Lagos then started receiving calls he considered threatening, so on the advice of his friend and girlfriend he decided to leave Nigeria.

The refugee applications commissioner decided that he had failed to establish a well-founded fear of persecution and recommended he not be declared a refugee. The applicant sought a judicial review of this decision.

His senior counsel argued that this decision should be set aside on the basis that the manner in which it was reached was so totally lacking in basic fairness that it would be unjust to permit the decision to stand, having regard to Section 16(a) of the Refugee Act (as amended) and Section 11A (3) of that Act.

Counsel argued that five issues - that the police could have arrested him anyway at any stage; that they could have found him at his place of work; that he stayed in Warri for two or three weeks after his car was shot at, indicating he did not really fear for his life; that there was no evidence that the Itshekiris were responsible for ransacking his house; and that he could have moved from his friend's to another house in Lagos - should have been raised with the applicant at interview, and were not.

She also argued that the commissioner had reached a decision adverse to the applicant on the basis of a document, the existence of which was not made known to him. This was a report from the internet site Wikipedia Free Encyclopaedia, dated June 23rd 2006, which describes a process called oil "bunkering" allegedly used by the NDPFV, of which the applicant said he was a member. Oil "bunkering" involves tapping into the oil pipelines belonging to oil companies in this part of Nigeria. The applicant denied that the NDPFV engaged in it, but acknowledged that some men did.

The Wikipedia entry also stated: "Bunkering is illegal in the eyes of both the Nigerian state and the oil corporations, but is justified by the militias on the basis that they are being exploited and have not received adequate profits from the monstrously profitable but ecologically destructive oil industry."

Counsel said that the commissioner had reached a view adverse to the applicant in relation to this issue, and contrary to his reply to the question. However, the source of the question was not put to him, and the applicant was not given any opportunity of perusing, checking on, assessing or evaluating this purported country of origin information or of providing rebuttal, if he wished.

Thirdly, counsel for the applicant argued that the commissioner made his decision on the basis that the applicant had failed to seek protection from harm from his government, and that fleeing prosecution for a common law offence must be distinguished from fleeing from persecution. However, counsel pointed out that the only country of origin information sourced by the refugee applications commissioner, Wikipedia, itself stated: "Victims of crimes are fearful of seeking justice for crimes committed against them because of growing impunity from prosecution for individuals responsible for serious human rights abuses [which] has created a devastating cycle of increasing conflict and violence."

She added that the refugee applications commissioner "appears to have concluded that the applicant was guilty of a common law offence in Nigeria and was a fugitive from prosecution and not persecution. This was not put to the applicant."

She said that if the commissioner was aware of a charge or a warrant, this should have been put to the applicant. If there was no such document the only rational inference was that the commissioner acted on "nothing more than hearsay or surmise".

In response, counsel for the commissioner said that it was reasonably and rationally open to the him to reach the conclusion he did on the evidence. She also said that the applicant could have appealed the decision to the Refugee Appeals Tribunal because the matters raised related to the quality of the decision rather than the defective application of legal principles.

DECISION

In making his decision Mr Justice Herbert cited the Supreme Court judgment in Stefan, where Mrs Justice Denham said: "The applicant is entitled to a primary decision in accordance with fair procedures and an appeal from that decision. A fair appeal does not cure an unfair hearing."

He said he was satisfied that the applicant should not be estopped from seeking judicial review. He said there were substantial grounds for contending that the apparent finding by the commissioner that protection might have been available from the Nigerian state against the alleged threats "lacks any sufficient evidence to sustain it".

He also found that there were substantial grounds for contending that the finding that he was fleeing prosecution rather than persecution was "based on hearsay, speculation and conjecture". In addition, he found that the failure to disclose to him the country of origin information "is an unfair procedure and contrary to natural and constitutional justice".

A failure to put all the facts to the applicant, considered in isolation, would not in itself justify a judicial review.

However, taken with the other arguments, this added to rather than took from the argument that fair procedures were absent, and he found there were ample grounds for contending that the decision and recommendation of the refugee applications commissioner were invalid and ought to be quashed.

The full text of this judgment is on www.courts.ie

Larry O'Boyle SC and Paul O'Shea BL instructred by Burns Kelly Corrigan, Harolds Cross, Dublin; Anne Hartnett O'Connor BL instructed by the Chief State Solicitor for the respondent.