Judgment Title: O. -v- Refugee Appeals Tribunal & Anor
Composition of Court:
Judgment by: Cooke J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 607
THE HIGH COURT
2007 493 JR
A. S. O.
THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR
JUSTICE, EQUALITY AND LAW REFORM
JUDGMENT of Mr. Justice Cooke delivered on the 9th day of December, 2009.
1. By order of 27th May, 2009 this Court granted leave to the applicant to make the present application for judicial review of a decision of the first named respondent dated 20th March, 2007 (“the Contested Decision”) which had affirmed a report of the Refugee Appeals Commissioner under s. 13 of the Refugee Act 1996, recommending that the applicant should not be declared to be a refugee.
2. The single ground upon which leave was granted to seek an order of certiorari in respect of the Contested Decision was as follows:
4. In the section 13 Report dated 14th August, 2006, the authorised officer of the Commissioner sets out the background to the above claim and the history of events leading to the flight from Nigeria in greater detail. The personal history of the threats and attacks and their causes is then examined in some detail and the story is found to be incredible. In particular, a number of specific findings in that regard are made as follows:
(b) The involvement of the failure of the Hallmark Bank as a cause of the difficulties is also considered incredible;
(c) The officer doubts the truth of the claim that her house was destroyed by fire, that her daughter died in the fire and that the police were unwilling to investigate it;
(d) The notion that a particular creditor would have sought to kill the applicant when she was his only means of gaining access to the father’s deposits with Hallmark Bank is found incredible.
6. As mentioned, the section 13 Report and negative recommendation were appealed to the Tribunal and in the notice of appeal the Commissioner’s assessment of credibility was expressly challenged.
7. In the Contested Decision, the Tribunal member again sets out in some detail the personal history given by the applicant as the basis of her fear of persecution. The applicant’s evidence is set out in a straightforward manner without comment and questions asked and answers given during the course of the hearing before the Tribunal are recorded without comment. The Tribunal member then duly notes the statutory requirements of s. 11B of the 1996 Act with regard to assessing credibility and with regard to the standard of proof.
8. The Contested Decision is, however, somewhat remarkable in view of the approach adopted by the Commissioner and the conclusion reached in the section 13 Report, in that it expresses no specific finding on the issue of credibility. One can perhaps detect in some of the language used the signs of “an eyebrow being raised” as counsel for the respondents put it, but the Contested Decision is devoid of any express conclusion as to whether the basic personal history and foundation for the claim to fear of persecution was believed or disbelieved.
9. The court must therefore proceed on the basis that the applicant’s evidence was accepted. Indeed, it is logically necessary to do so because the Contested Decision bases its rejection of the appeal and affirmation of the section 13 Report and negative recommendation upon two explicit findings namely, that State protection would have been available to the applicant against the alleged threats and attacks; and secondly, that those threats and attacks could have been avoided by internal relocation within Nigeria. As regards the former the Contested Decision says: “The country of origin information, which is of recent vintage, informs us that the applicant would be entitled to rely on the State to protect her vital interests.” As regards the latter the Tribunal member concludes: “There is no evidence before me to suggest that this applicant could not have relocated successfully in Nigeria.”
10. As is frequently pointed out in these cases, this Court is not concerned when exercising its function of judicial review to determine whether the decision under review is good or bad or a right or wrong decision on the merits. It is concerned with the legality of the process by which the conclusion upon which the decision is based has been reached.
11. In this case, the conclusion as to the availability of State protection to the applicant upon return to Nigeria in the face of the threats of attack and of violence is contained, in effect, in three paragraphs on the fifth page of the Contested Decision. The first paragraph refers to a “Report on Human Rights Issues in Nigeria” of a joint British/Danish fact finding Mission in 2004. The Tribunal member relies on that report for the proposition that the Nigerian police are required to investigate all complaints made to them and that if a person is not satisfied with the result of a complaint to the divisional police the matter can be appealed to the A.C.A. Commanders. If still not satisfied, the case can be taken to State police headquarters and further; “If still not satisfied the person can take the matter to the Force Headquarters.” The Tribunal member then observes: “It is surprising that, considering that her daughter had been allegedly murdered, she (the applicant) did not press her claim by renewing her complaint to more senior levels of the police force.”
12. The court accepts the argument made by counsel for the applicant that this does not constitute a finding that state protection is available in these circumstances in Nigeria. It is a reference to the existence of a hierarchical complaint structure against the failure of local police officers to pursue the investigation of reported crimes. As the well settled-case law in this regard makes clear, whether or not State protection is available does not depend upon the existence of a police complaints procedure but upon a determination that there exists in the country of origin as a matter of current practice, an effective system for the detection, investigation, prosecution and conviction of crimes of the kind which form the subject matter of the complaint. (See also the definition of “protection against persecution or serious harm” in Regulation 2 of the European Communities (Eligibility for Protection) Regulations 2006). (“the 2006 Regulations”)
13. The third paragraph of the passage referred to above in the Contested Decision deals with the alleged kidnapping by the Oodua People’s Congress. The Tribunal member says:
15. It is argued on behalf of the respondents that the Act does not specify at which point in time the indication has to be given and that it is therefore sufficient that a source of general information of this kind when relied upon by the Tribunal member is sufficiently notified if the indication of its nature and source is given in the Tribunal’s decision. The court accepts that there might well be some force to this argument where it relates to information of a general nature confirming the existence of particular social, political or administrative conditions in the country of origin. However, in this instance the reliance place upon the Home Office Guidance Note is more significant in that it is directed at a specific and important incident in the applicant’s personal story namely, her kidnapping by the Oodua People’s Congress. It is important to bear in mind that this issue is unique to the Contested Decision. The kidnap incident was not one of those points in the personal history identified by the Commissioner’s Report as a basis for doubting credibility. The court is therefore satisfied that this is an instance in which, prior to finalising the decision, the Tribunal member was under an obligation, if not to reopen the hearing, at least to furnish the Home Office Guidance Note to the applicant’s representatives and afford them an opportunity of commenting upon it or rebutting it by contrary information in the light of the reliance that the Tribunal member proposed to place upon it.
16. The court is accordingly satisfied that the process by which the crucial finding as to the availability of State protection in this case was reached was sufficiently flawed to warrant the quashing of the decision.
17. It is argued on behalf of the Minister that the court ought not to quash the decision having regard to the fact that the Tribunal member made a separate and distinct finding to the effect that the applicant’s source of the fear of persecution could have been avoided by relocating within Nigeria. No leave had been granted in respect of that finding and it is sufficient of itself to sustain the Contested Decision.
18. The court cannot agree. The possibility of relocation as a basis for determining that an applicant is not in need of international protection arises under Regulation 7 of the 2006 Regulations. As the Tribunal member pointed out in the Contested Decision, an applicant is not in need of protection if it is shown that the applicant “can reasonably be expected to stay in a part of his or her country of origin where there is no well founded fear of being persecuted or real risk of suffering serious harm”.
19. The Tribunal member’s conclusion on this issue was expressed in these terms:
21. As indicated above, the key element in the reasoning of the Contested Decision in relation to State protection was that State protection is and would be available from Nigerian police against the threats of kidnapping by the Oodua People’s Congress. However, if that reasoning is based upon an acceptance by the Tribunal member that the kidnapping recounted by the applicant did take place or may well have taken place, then a finding based on relocation would have required, if it was to comply with Regulation 7, some inquiry as to whether the OPC was active in and capable of threatening the applicant in the locality in which she was supposed to relocate on return.
22. In the particular circumstances of this case, therefore, the findings on State protection and relocation in the Contested Decision are not entirely distinct but are to a degree interdependent. The finding that relocation was a genuine possibility would appear to be necessarily dependent upon the proposition that the particular threats by non-state actors were amenable to State protection in Nigeria. It was the applicant’s complaint that the police were unwilling to help because they, in effect, regarded the matter as one of financial debt or contract and that the creditors in question appeared to be legitimately owed their money. Why should that not be the position elsewhere in Nigeria?
23. The court is satisfied, therefore, that it is appropriate and necessary in the particular circumstances of this case that the Contested Decision be quashed in order to enable the appeal to be re-examined. One further general observation may, however, usefully be added by way of explanation of the significance which the court attaches to the flaw that is identified in this case.
24. It concerns the obvious discrepancy in the approach of the Tribunal member as compared with that of the Section 13 Report. It is undoubtedly the case that on appeal to the Tribunal under s.16 of the 1996 Act, the Tribunal member is free to fully re-examine the asylum application by way of rehearing and to come to an entirely different conclusion. Moreover, the Tribunal member is entitled to come to the same conclusion as the Commissioner but for different reasons or upon different grounds.
25. Nevertheless, sight should not be lost of the nature and objective of the statutory scheme for examination of asylum applications as entrusted under the Act to the Commissioner and the Tribunal. The purpose is to examine the asylum application and to carry out all necessary investigations and inquiries including the personal interview of the applicant, with a view to furnishing a report which is presented to the Minister and upon which the Minister must make the determination of the application for asylum under s. 17(1) of the Act. Where the report and recommendation are negative, the Minister is entitled, but is not obliged, to refuse the declaration of refugee status, as the permissive “may” in subs. 1(b) of the section makes clear.
26. Where a negative recommendation of the Commissioner is appealed to the Tribunal and is affirmed, the appeal decision does not cancel or replace the Commissioner’s report. Pursuant to s. 16(17)(b) both the decision of the Tribunal and the s. 13 report of the Commissioner are placed before the Minister for the purpose of making his determination under section 17(1).
27. It is thus, in the court’s view, unsatisfactory that there should be an outcome to the appeal before the Tribunal which presents the Minister with an unexplained discrepancy between the basis upon which the Commissioner has made a negative recommendation and the different ground upon which it has been affirmed by the Tribunal.
28. In the present case, had there been no application for judicial review, the Minister would have been required to make a determination under s. 17(1) on the basis of a section 13 report in which the applicant’s entire story has effectively been discredited as untrue; and an appeal decision which appears to accept the story as true but which bases the affirmation on the availability of State protection and the possibility of internal relocation.
29. While that might not pose any practical difficulty for the Minister in making the determination, it does not appear to be compatible with the clarity of explanation and the transparency of decision making expected of asylum procedures that a claimant should be left at the end of the process unable to identify the precise ground upon which the application for refugee status has failed. Furthermore, the fact that the applicant cannot tell whether the account of having suffered persecution or threats of serious harm has been accepted or been rejected as untrue may create disadvantages for the applicant at subsequent stages when subsidiary protection is sought or when representations are made against a deportation order with a view to obtaining temporary leave to remain in the State upon humanitarian grounds. Accordingly, in the court’s view, where a section 13 report makes a negative recommendation based entirely or predominantly upon detailed and cogent findings of lack of credibility, it is undesirable, particularly where there has been an oral hearing on appeal, that the issue of credibility should be left hanging in the air without specific comment in the appeal decision of the Tribunal.
30. The court will therefore order that certiorari issue to quash the Contested Decision for the reasons given above.