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Cite as: [2008] IEHC 215

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Neutral Citation: [2008] IEHC 215

THE HIGH COURT

2006 No. 1045 JR

BETWEEN

P. N,

O. N. (AN INFANT, ACTING BY HIS MOTHER

AND NEXT FRIEND P. N.)

C. N. (AN INFANT, ACTING BY HIS MOTHER

AND NEXT FRIEND P. N.)

M. N. (AN INFANT, ACTING BY HIS MOTHER

AND NEXT FRIEND P. N.)

O. M. (AN INFANT, ACTING BY HER AUNT

AND NEXT FRIEND P. N.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM and

EAMON CAHILL, SITTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

EX TEMPORE JUDGMENT OF MR. JUSTICE BIRMINGHAM delivered on the 3^rd day of July 2008

This is an application for leave to apply for judicial review of the decision of the Refugee Appeals Tribunal ("RAT"), dated 31^st July, 2006, which affirmed the earlier decision of the Refugee Applications Commissioner ("RAC") that the applicants should not be granted refugee status, within the meaning of the Refugee Act 1996, as amended.

Factual Background

The first named applicant in the present case is a national of Nigeria, a Christian, and a member of the Igbo tribe. The second, third and fourth named applicants are her children and the fifth named applicant is her niece, who lived with the family in Nigeria from an early age.

The first named applicant says that her husband, B. N., is a Chief of the village in which they lived in Nigeria, and is a wealthy, ambitious man who has considerable influence among their tribe. She says that from early in their marriage, she suffered domestic violence at his hands. She states that he sought to become an Ozo, a higher rank of Chief, which would require the sacrifice of their eldest son to the gods. She says that this was a long-established practice in her village. At the RAT oral hearing, she said that her consent would be required in order for her son to be put to death, but that she was unwilling to so consent. She further claimed that the police would not intervene if a wife objected to such a sacrifice.

The first named applicant says that she sought – unsuccessfully – to dissuade her husband from becoming an Ozo, but that in response to her pleas, he beat her and threatened to kill her and their son. She says that she told both her father-in-law and the police about this beating, but received protection from neither source. She says that as Chief, her husband paid the policemen money, and that they would not, therefore, take any action against him.

The first named applicant says that the situation between her and her husband continued to deteriorate, that he ignored her and would not eat the food she prepared for him, that he continued to beat her, and that he planned to take a second wife in preparation for his new title as Ozo. She also says that her husband had sexually abused her niece, the fifth named applicant. She says that when she raised this with him, her husband denied it, beat her, and threatened to kill both her and her niece.

Thereafter, on 5^th January, 2006, she, her sons and her niece left her home in Nigeria. They travelled first to the north of Nigeria, and then on to Ireland, with the help of an agent. The fourth named applicant was born in Ireland later that year.

At the RAT oral hearing, the first named applicant stated that since her departure, her husband's health has deteriorated and that he may not survive. She said that she received this information from a friend, who said that Chief N. is very ill, and that his illness was due to him breaking the oath that he had made to kill his eldest son. The first named applicant agreed that black magic had been used by the gods as an indication of displeasure at her husband's failure to comply with his oath.

Procedural Background

The applicants applied for asylum in the normal way, filling in ASY-1 forms on 10^th January, 2006. The first named applicant agreed for the asylum applications of her children and niece to be included along with her own. The applicants were notified by letter dated 11^th August, 2006 that the RAC had rejected their claim. It is clear from the section 13 report, dated 18^th May, 2006, that the ORAC official doubted the first named applicant's credibility and considered her account of events to be implausible. The applicants filed a Notice of Appeal against the RAC decision/recommendation, and an oral hearing took place. A negative decision was issued by the RAT, dated 31^st July, 2006, and was notified to the applicants by letter dated 11^th August, 2006. It is this decision that is the subject of the present challenge, which is based on the applicants' contention that the Tribunal Member failed to give adequate reasons for his decision.

The Adequacy of Reasons

The requirement that administrative bodies give adequate reasons for their decisions is well established. In the leading case of State (Creedon) v. Criminal Injuries Compensation Tribunal [1988] 1 IR 51, Finlay C.J. held that courts should be able to ascertain the reasons by which tribunals came to its determination, and that an unsuccessful applicant before a tribunal "should be made aware in general and broad terms of the grounds on which he or she has failed." He concluded that it was insufficient to merely reject the application and, when that rejection was challenged, subsequently to maintain a silence as to the reason for it.

The Creedon decision has been followed in many cases, including those opened by the applicants at the hearing in the present case – the decision of Murphy J. O'Donoghue v. An Bord Pleanála [1991] ILRM 750 and that of Carroll J. in Hurley v. Motor Insurers Bureau of Ireland [1993] ILRM 886. Counsel on behalf of the respondents opened the case of Faulkner v. The Minister for Industry and Commerce (unreported, Supreme Court, 12^th December, 1996), in which O'Flaherty J. commented:-

"I would reiterate, what has been said on a number of occasions, that when reasons are required from administrative tribunals they should be required only to give the broad gist of the basis for their decisions. We do no service to the public in general, or to particular individuals, if we subject every decision of every administrative tribunal to minute analysis."

It seems clear to me in truth that there is little difference between the Faulkner case and those relied on by the applicants, except perhaps that O'Flaherty J. employed a somewhat more robust formulation. The approach of the courts is to expect that the reasons given for decisions of quasi-judicial bodies, including the RAT, will be sufficient to allow the courts and the parties to understand the nature of the decision, and to fulfil the test set out by Kelly J. in Mulholland v. An Bord Pleanála (No.2) [2006] 1 IR 453, i.e. that a decision must be sufficient to:

"(1) give to an applicant such information as may be necessary and appropriate for him to consider whether he has a reasonable chance of succeeding in appealing or judicially reviewing the decision;

(2) arm himself for such hearing or review;

(3) know if the decision maker has directed its mind adequately to the issues which it has considered or is obliged to consider; and

(4) enable the court to review the decision."

I propose to employ this approach in relation to the present case.

The Tribunal Member's Decision

It is the applicants' position that the Tribunal Member's decision does nothing further than comment upon and make observations in relation to their case, and therefore fails to give adequate reasons for rejecting their appeal. The respondents contend that on the contrary, if read as a whole, the decision makes clear findings in respect of the applicants' case.

I must admit that when I first read the decision, my immediate reaction was that it was not easy to identify the specific basis for the decision that the applicant should not be declared a refugee. It appeared to me that while the Tribunal Member raised a number of important questions, these were left hanging and there was an absence of firm conclusions.

However, this is a decision that merits close and careful reading. It is accepted on all sides that the question is whether, when having read the decision as a whole, the basis for the decision emerges with sufficient clarity. The significance of this is that the operative part of the decision might be thought to be found in four relatively short paragraphs towards the end of the decision. However, in seeking to identify the basis for the decision, one is not confined to looking at these four paragraphs.

The Tribunal Member opens the analysis of the claim by accepting that it is conceivable that the applicant may have been the victim of domestic violence. He points out that wife-beating is quite a normal occurrence and police do not normally intervene in domestic disputes.

In the following paragraph, the Tribunal Member poses directly and, in my view correctly, the central question in the case, in the following terms:-

"She is certain that her eldest boy would be put to death and she feels that this might also happen to herself. Is this fear well founded?"

The Tribunal Member turns first to the suggestion that the first named applicant's son was at risk of being sacrificed. He deals with this issue by saying that there is no proof that there is widespread killing for use in blood sacrifices. He does, however, say that it is widely known that the bodies of the dead are frequently mutilated and certain parts used for ritualistic purposes. He then refers to a report commissioned by the Canadian Immigration and Refugee Board, the IRB, that two reports by US-based Nigerian academics concluded that there was never any proof that human sacrifices had ever been used for ritualistic purposes in Nigeria.

It seems to be that the paragraphs, when analysed, amount to a clear conclusion that the suggestion of her son being at risk of being sacrificed was rejected as incredible.

The next issue addressed is the manner of succession to the office of Ozo and eligibility for selection. The Tribunal Member had regard to the requirement that an office holder must be a person with considerable experience of life so that he would possess the necessary wisdom to dispense justice, and that traditionally an appointee was 70 years or over, though this was no longer the case because of the decline in life expectancy. The Tribunal Member concluded this aspect by commenting that "[i]t must be asked if a person of [the applicant's husband's] age [i.e. 40] has the necessary experience of life to qualify as a candidate for the Ozo title." Thus, the decision-maker identifies an issue but withholds a conclusion.

The Tribunal Member then turns to the fact that before a child could be sacrificed, it was necessary for the child's mother to give her consent. In this regard, the decision-maker states clearly and unequivocally and in terms that this account was not plausible. Essentially, he is influenced by the apparent inconsistency that the husband was determined to adhere to tribal custom in proceeding with the sacrifice, but repudiated tribal custom in seeking to proceed in the absence of the first named applicant's consent.

The decision then turns to the question of state protection, first addressing the effectiveness of the Nigerian police force. The physical layout of the page of the decision dealing with this topic can be somewhat misleading. The first paragraph dealing with this topic, which is followed by a gap, ends "It is, therefore, not altogether an accurate reflection of the police to say that they will never offer protection". If the topic ended there, then there would be considerable force in the argument that having identified an issue requiring resolution, the decision-maker backed away from a conclusion. However, contrary to what might be one's first impression, the topic does not end there but is continued in two further paragraphs, which are, in fact, quite specific that when the pursuit of traditional practices have resulted in crimes being committed, these have been investigated by the Nigerian police, and that the police will prosecute serious crimes if they believe the evidence is sufficient to warrant a conviction. In that regard, the procedure is that serious crimes are reported to the Director of Public Prosecutions, who will then take a decision.

Read in that light, this section of the decision amounts to a clear rejection of the scenario, as it is referred to, advanced by the applicants, that there is no hope of protection for the young boy, if returned to Nigeria.

The penultimate paragraph reads as follows:-

"I have already pointed out that there are credibility issues and inconsistencies in the evidence and some of the evidence does not correspond with the country of origin information."

This paragraph is criticised for failing to specify where the credibility and consistencies issues are, what view was reached on them, and which part of the evidence was regarded as not corresponding with country of origin information.

However, that argument ignores the detailed analysis which has gone before which, as I have sought to point out, involves quite a number of specific findings and conclusions adverse to the applicant.

It is true that this decision refrains from the language of the ringing rejection. In that regard, I note the intervention of Barrington J. in the course of the hearing in the case of Faulkner v. The Minister for Industry and Commerce (unreported, Supreme Court, 12^th December, 1996), referred to in the course of his judgment by O'Flaherty J., that internationally, courts and tribunals dealing with employment disputes will not make superfluous findings against an employee out of a proper regard to the person's feelings. Similar considerations may have been a factor in the restraint of language employed in the present case.

Be that as it may, while the first named applicant will obviously be disappointed at the decision, she cannot be in any doubt why she lost. She lost because adverse findings were reached in relation to her credibility, and her account was quite simply not believed. The reasoning which led to that result is set out in sufficient detail and with sufficient clarity to enable the applicant to consider whether conclusions were improperly arrived at, or reached without any basis, and whether, as a result, there was potential to judicially review the decision. That being so, the decision is satisfactory and there is no substantial basis for contending that it should be quashed.

Approved: Birmingham J.