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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Oloo-Omee & Anor -v- Refugee Appeals Tribunal & Ors [2012] IEHC 455 (09 November 2012)
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Cite as: [2012] IEHC 455
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Judgment Title: Oloo-Omee & Anor -v- Refugee Appeals Tribunal & Ors Neutral Citation: 2012 IEHC 455 High Court Record Number: 2011 1102 JR Date of Delivery: 09/11/2012 Court: High Court Composition of Court: Judgment by: Mac Eochaidh J. Status of Judgment: Approved |
Neutral Citation 2012 [IEHC] 455 THE HIGH COURT JUDICIAL REVIEW [2011 No. 1102 J.R.] BETWEEN REAGAN OLOO-OMEE (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND BLESSING OLOO-OMEE) APPLICANT AND
THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND IRELAND RESPONDENT AND
THE HUMAN RIGHTS COMMISSION NOTICE PARTY JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 9th day of November 2012 1. Interviews form an important part of the process by which applications for refugee status are determined. When the applicant is a minor, mistakes or missteps during interview by parents or those in like position should not be visited on the child and assessors must not confuse the voice of the parents with the voice of the child. 2. In this case, a mother sought asylum for her 4-year old son, she having previously been an unsuccessful refugee applicant. During an interview conducted by the Office of the Refugee Applications Commissioner, she was asked whether her son's claim was based on her own claim and she answered "Yes". This simple question and one-word answer has led to these proceedings written by the same member of the Refugee Appeals Tribunal. The mother's answer notwithstanding, the basis of her claim for refugee status was not connected with the case made for her son. Fear of kidnapping was advanced as the main ground for seeking protection for the son whereas no such circumstance was associated with the mother's failed claim. Thus, her answer to the question was, at least prima facie, an unfortunate mistake. It is suggested by the respondent that the son's solicitor must have known this as he had acted for the mother and would have known that the claims were unrelated. It is said he should have addressed the controversial answer given by the mother to the Commissioner in the appeal to the Tribunal. 4. By decision dated 3rd October, 2006, Ms. Margaret Levey B.L., a member of the Refugee Appeals Tribunal, rejected the mother's claim for refugee status which had been advanced on the basis of a fear that she would be forced to undergo scarification and that her daughter would suffer female genital mutilation. The applicant's mother's claim was rejected because her story of fearing scarification and fearing infliction of female genital mutilation ran counter to generally known facts about Nigeria. 5. On 20th June, 2008, the applicant was born in Ireland. On 25th February 2011, the applicant (via his mother) applied for refugee status. That application was commenced by completing a form which contains the following précis of the case made on behalf of the applicant:
7. An interview in accordance with s. 11 of the Refugee Act 1996 was conducted on 2nd June, 2011. It took place over the course of one hour and twenty minutes in English. The interview was read back to the interviewee during the course of the interview page-by-page so that mistakes could be corrected as the matter proceeded and each page was signed by the interviewee. There was a further opportunity at the end of the interview to review the record of the interview and to correct mistakes again. 8. Prior to the interview, some documents had been submitted to the Office of the Refugee Applications Commissioner. The first of these, an article dated 11th May, 2011, is entitled 'Residents Panic as Kidnappers Resurface in Aha'. The article states:
In April 2011, unknown gunmen in Aha kidnapped Justice Akomas, a retired Chief Judge. The same day, a Reverend Sister serving in a Catholic church within the city was also kidnapped. However, both victims regained their freedom two days after."
9. During the course of the interview, the applicant was asked, "What do you fear would happen to your child if he was to go to your country, Nigeria?" The mother answered, having referred to the articles she had submitted and her general fear of kidnapping, "I have been here in Ireland for nearly six years now. If I go back with my children, they will assume that I have money, thinking that I've been in Europe for six years. But I'm only an asylum seeker". It was during the course of this interview that the mother was asked, "Is your child's claim wholly related to your own, based on your claim?" And she answered "Yes". 10. The mother's and son's claims are based on unrelated fears. Read literally, the mother's answer to the question posed is mistaken. But it may involve a misunderstanding. The mother is claiming asylum on behalf of her son, and she was asked whether her son's claim was based on her claim, it is possible she believed that the questioner was enquiring whether the son's case was that which the mother then sought to make out on his behalf, i.e. what she was claiming. English is not the first language of the applicant's mother. The interview was likely to have been a fairly stressful event. It may be that genuine confusion arose in relation to this question and answer, with neither side discerning the confusion at the time. The mother is an intelligent university graduate and it is highly improbable that she intended to convey what the literal meaning of her answer suggests. 11. The Commissioner's decision does not eschew fear of kidnapping in Nigeria as a basis for refugee status. However, it was found that the mother's fear that such might happen was improbable; that in any event, the authorities are becoming more successful at combating this crime and that the applicant could avail of State protection in Nigeria. In addition, the Commissioner was critical of the fact that 32 months had passed before an asylum application was made in respect of the applicant. It is noteworthy that no reference is made by the Commissioner to the suggestion that the present applicant's case for asylum was based upon his mother's (failed) claim. 12. Solicitors on behalf of the applicant instituted an appeal to the Refugee Appeals Tribunal against the finding of the Refugee Applications Commissioner. Two grounds of appeal were advanced and I note, without criticism, that these are fairly generic grounds alleging errors of fact and errors of law on the part of the Commissioner as the applicant, it is said, had established circumstances which would justify granting him refugee status. 13. A solicitor's letter accompanied the notice of appeal to the Refugee Appeals Tribunal which comprised a further submission on behalf of the applicant and advanced the following case:
15. Further country of origin information on the topic of kidnappings in Nigeria was submitted to the Tribunal. I have read and considered all of it. 16. The solicitor did not address the question of whether the applicant's claim for asylum was based on his mother's claim. This is hardly surprising as the Commissioner had not mentioned this as a factor in the refusal decision. The Impugned Decision 18. The author notes the requirements of s. 16(16) of the Refugee Act 1996 (as amended) which requires her to consider documents, representations and information submitted to the Commissioner in accordance with s. 11 of the 1996 Act. Counsel on behalf of the respondent, Ms Siobhan Stack, submitted that the author was obliged by statute to consider the controversial question and answer suggesting that the son's case was based upon the mother's case. 19. It was submitted by Ms Stack that no "Convention reason" had been advanced on behalf of the applicant which would enable refugee status to be conferred upon the applicant. However, the Tribunal made no such finding. Instead, the applicant's case is rejected because of a failure to demonstrate that there is a "serious possibility" or a "reasonable chance" or a "real chance" of persecution connected with kidnappings occurring. The author says (in relation to the mother's fear of kidnappings):
21. The author of the Tribunal decision seems to dwell on whether the fear is well founded. This particular finding by the author has attracted a claim of illegality expressed as follows:
23. It is clear that kidnappings are a serious problem in Nigeria and the information supplied indicates that non-Nigerians and wealthy Nigerians are particular targets, though some of the information also indicates that even poor people are the victims of this terrible crime. 24. None of the country of origin information supported the claim that Nigerians returning from lengthy periods seeking asylum in a European country would themselves be the victims of kidnapping, as they might be perceived to be persons of wealth. 25. It seems to me that the author of the Tribunal decision made no error of law or fact in concluding that the applicant's fears were not sufficiently connected to a real possibility that her fears would materialise. No irrationality attaches to her conclusion which suggests that the applicant and his family would be extraordinarily unlucky if, on returning to a country so populous and so vast, they would be singled out for kidnapping on the basis of having spent seven years in Europe. The conclusion does not offend reason and seems, moreover, to be based properly on the evidence adduced. 26. The second complaint made by the applicant relates to the manner in which the author of the Tribunal report referred to the failed asylum claim of the applicant's mother. The report is in the following terms: "The applicant's mother made an asylum application following her arrival in Ireland. This application was rejected by the ORAC, a decision which was upheld by the RAT. At interview, the applicant's mother agreed that the applicant's case is based on/related to his mother's claim (interview p. 3).
Conclusion 29. It is well established law that decision makers may not make findings based on material obtained after the case has been closed to a decision maker. See Tierney v. An Post [2000] I.R. 536. But this principle does not quite capture what happened here. 30. My view is that regardless of why the infant applicant's mother said that his claim for asylum was based upon her failed claim, this could not have been and was not the case. Once the Tribunal found, as it did, that the mother's case was relevant to her son's case, a serious error entered the decision making process and may have caused the Tribunal to conclude that as with the mother, so with the son. 31. I find that the Tribunal took account of irrelevant material for which the infant applicant bore no responsibility, and in respect of whom the persons whose function it was to protect his interests made simple but possibly fundamental errors. The special position of children in the asylum system has been recently addressed by the Supreme Court in Okunade v Minister for Justice, Equality and Law Reform [2012] IESC 49. The court described the principles governing injunctions to prevent deportations prior to applications for leave to seek judicial review. A four year old child was caught up in the saga and Clark J said at para 11.2,
33. I have a slight concern about a simple remittal of this matter to the Tribunal. If the matter is to proceed as if the Notice of Appeal had just been delivered, the Tribunal could possibly make the same error again - though I admit this is unlikely in view of this judgment. It may be necessary for the applicant's solicitor to recast the Notice of Appeal (to deal with this issue but only this issue) and demur to the mother's comments or explain them. I will hear the parties as to the appropriate from of Order.
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