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Cite as: [2008] IEHC 222

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Neutral Citation: [2008] IEHC 222

Neutral Citation No: [2008] IEHC 222

THE HIGH COURT

2006 987 JR

BETWEEN

O A

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND

THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

EX TEMPORE JUDGMENT OF MR. JUSTICE BIRMINGHAM delivered on the 13^th day of June 2008.

This is an application to leave to apply for judicial review of the decision/recommendation of the Refugee Applications Commissioner that the applicant is not a refugee within the meaning of the Refugee Act 1996, as amended.

Factual Background

The applicant in this case is national of Nigeria who has come to this State and sought asylum. It appears, by way of background, that he was involved in the motor trade in Nigeria, rising to become General Secretary of what seems to have been in the nature of some kind of a trade body. When he attended his first meeting of the executive in his role as General Secretary, he realised that his executive members were all members of the Ogboni fraternity, and they sought essentially to involve him in the fraternity despite his protests. He says that as a result, he was overpowered as part of their rituals. Perhaps a year or so later matters went a stage further when, he says, they required him and pressed him and coerced him to become an active participant in some of their activities, involving - amongst other things - kidnapping people for ritual purposes. He says that he again resisted and that having resisted becoming involved in activities that would be anathema to him, he was subjected to serious assaults on a number of occasions and, indeed, what really amounts to attempted murder on occasions.

The Office of the Refugee Applications Commissioner ("ORAC") issued a negative decision/recommendation in respect of the applicant. There was no appeal to the Refugee Appeals Tribunal ("RAT").

The Issues in the Case

Without going into any detail, I think it fair to say that the conclusions reached by ORAC could not be said to be surprising in the slightest. Nevertheless, challenges are put forward by Mr O'Shea, counsel on behalf of the applicant, against three matters, which I would summarise as follows:-

a. The question of country of origin information;

b. The conclusion that the applicant's claim was not sufficiently serious to amount to persecution; and

c. The approach that the ORAC officer took as to whether the applicant was present or was not for some of the more nefarious activities that he attributes to this group.

I will deal with each of these in turn.

(a) Country of Origin Information

Counsel on behalf of the applicant has formulated his challenge on the question of country of origin information on the basis of three sub-headings:

a. That the documents are outdated;

b. That the documents are were not put to the applicant; and

c. That the reliance placed on the documents was selective.

It does not seem to me that any of those matters are reflected as a matter of substance in the recommendation decision. This was not a case where the documents relied upon fundamentally undermined the credibility of the applicant. That seems to me to put the documents relied upon in this case in a different category to documents that have been regarded as being in issue in other cases. It certainly seems to me that the way in which the ORAC officer interpreted the information was an approach that was open to him. If it is suggested that there is another approach which should have been taken, then that seems to me to be quintessentially a matter that is capable of being dealt with on appeal.

It is said that the documentation is outdated. The question of when documents such as these date may be absolutely crucial. A matter of months may be crucial if one is dealing with an evolving security or political situation, but it seems to me it is not necessarily going to be so when one is dealing with ongoing activities by a traditional group in society. Again, however, if there is another view, and indeed if there is documentation that is more recent that puts a different perspective on matters, then the applicant would have had an opportunity to address that issue at the RAT oral hearing.

I am not satisfied that any substantial ground has been made out insofar as the question of country of origin information is concerned.

(b) That the applicant's claim was not sufficiently serious to amount to persecution

The argument in relation to what does or does not amount to persecution originates in the fact that the ORAC decision/recommendation states the following:-

"The applicant's claim is not considered sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, and therefore does not amount to persecution."

The decision goes on to state:-

"Nevertheless, an examination of the circumstances and factors pertaining to the claim set is out in the following paragraphs."

That observation is made following a section of the report headed "Persecution Claimed", which sets out in some detail the claim that the applicant has advanced, named that he has had persistent oppressive behaviour directed at him. In those circumstances, one has to say that taking it at face value, the conclusion reached is a surprising one and at face value might give rise to arguments as to whether in fact it could be regarded as a conclusion that was reasonably open and not one that was irrational.

Mr Conlan Smyth, counsel on behalf of the respondents, has argued that the conclusions reached have to be read it in the context of the decision as a whole. It is his case that if read in the context of the decision as a whole, it is clear that what the ORAC officer is saying is not that the behaviour complained of would not be serious if true, but that if one has regard to the lack of credibility of the applicant to the availability of internal State protection and of relocation internally, the applicant is not in fact at risk of persecution.

That argument, it seems to me, is an argument of some substance, though it is an argument that does not accord with a literal reading of what is said, because what this decision literally says is that the claim is not considered sufficiently serious, and then goes on to say "but nonetheless..." It seems to me that if you read what is literally there, the decision seems be saying that, nonetheless, notwithstanding the view that the conduct complained of does not amount to persecution, it is still proposed to go on to consider other aspects.

In sum, counsel on behalf of the applicant says that this is a decision which, on the face of it, would not seem to accord with what is recited. It is certainly a decision that is sufficiently surprising in the context of what is recited that it would require a statement of very clear and specific reasons to justify it. As I have indicated, I do believe that it is a case where the respondents do have the makings of a significant answer.

(c) The approach taken as to whether the applicant was present or was not for certain activities that he attributes to the group

The third ground upon which this challenge is based is the question as to whether the applicant was present or was not for certain of the activities that he attributes to the Ogboni fraternity. In his ORAC Questionnaire, the applicant recorded the fact that he came under pressure to participate, recorded the activities that the group are involved in, and made it quite clear that he himself was not a participant. Indeed, it is the very fact that he was not a participant that he says brought him under threat. At the ORAC interview stage, a degree of confusion seems to have entered into the picture. I accept that the primary source of that confusion would seem to have been the applicant who, for whatever reason, instead of speaking about those who were present at these instances as "they", started to use the pronoun "we" and also on other occasions to say "and they couldn't see us" and so on.

In the ORAC decision/recommendation, the facts of the case are set out under the title "Persecution Claimed". It seems to me that it is reasonably clear that when seeking to summarise the case, the officer is operating on the assumption that the applicant was not in fact present and was not in fact a participant in these activities. However, when it comes to the assessment of credibility, it seems that matters have altered somewhat and that the officer is operating on the basis that the applicant was accepting that he was present. I think that of very considerable significance, because if he were saying that he was present, then the account that was being given was frankly a nonsense and one that ought not to detain the official very long before a conclusion would be reached that it was utterly without substance. But if, in fact, the individual was not saying that he himself was present and a participant and therefore was not saying that he himself was in a position to overpower people by incantations, was not himself involved in the use of juju and so on, then the situation is quite different, because if he is simply indicating that this is how the group that were applying pressure to him say they go about their business, that might point in a different direction.

Counsel on behalf of the respondents says that if this issue is a problem, it is a matter that is capable of being dealt with on appeal. That is an argument that ultimately may well carry the day, but that does not necessarily mean that there cannot be substantial grounds for arguing the point at this stage.

Conclusion

This is a leave application. I find myself in a situation where I think that if there was only the question of the confusion and mistake as to whether the applicant was or was not present, I would take the view that that is a matter that is capable of being remedied on appeal. Likewise, if it was only the fact that the decision, on a literal reading, appears to have concluded that an account of gross violation of human rights did not amount to persecution, I think I would be prepared to take the view that one should read the document as a whole and that what the official was trying to say would emerge. However, it seems to me that when those two are seen in combination, the cumulative, combined effect is such that the applicant has met the threshold and I am of the view that substantial grounds have been established.

Approved Birmingham J.