Court of Appeal: Applicant was not afforded fair procedures by Refugee Appeals Tribunal

About this case:

• Judgment:
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Allowing her appeal, and refusing the State’s cross-appeal, Mr Justice Michael Peart found that the woman had not been afforded the opportunity to respond to concerns raised by the tribunal as to the material facts of her case, and therefore had been denied fair procedures.

Background

The Court heard that the applicant’s husband was the leader of a political group named ‘the Asatoro Group’ in the Niger Delta region, and that he was killed in 2001 by supporters of the government.

The applicant, BW, claimed that members of the Asatoro group visited her house after the shooting looking for money and documents allegedly stolen by her husband, and that they threatened to kill her if she did not hand them over.

Forced to flee her home, the Court heard that she feared for her life if she were to return to Nigeria.

BW came to Ireland in March 2007, but did not apply for asylum until September 2011 following her arrest for failure to produce documentation.

Application

The Refugee Applications Commissioner (RAC) recommended that her application for refugee-status be refused; and due to four-and-a-half-year delay, her appeal to the Refugee Appeals Tribunal (RAT) was a papers-only appeal as per s.13(6)(c) of the Refugee Act 1996.

BW accepted that her application was late and that she had no entitlement to an oral hearing – but submitted that the RAT was obliged to take particular care where she had no opportunity to respond to concerns in the mind of the Tribunal, particularly where some of those concerns had not been raised at her Office of the Refugee Applications Commissioner (ORAC) interview, and resulted in adverse credibility findings by the RAT.

Fair procedures

Justice Peart stated that BW’s assertion that her husband was shot and killed was “a critical matter”.

BW provided a newspaper article from the time of her husband’s shooting which corroborated her assertions about when and how he was killed. BW was also featured in the article and described as his widow. However, this was not before the RAC when BW was interviewed.

Justice Peart stated that the newspaper article was clearly material to her credibility, and to the question of her husband’s alleged links to the Asatoro group.

If BW was not believed on the assertions about her husband’s death, that her application was “doomed to failure” – as such, anything to corroborate this was material to her application.

The Tribunal said that the newspaper rendered BW’s own account to be confused – and Justice Peart said that fair procedures required that she be given an opportunity to address those concerns. Justice Peart also rejected the tribunal’s statement that BW had provided no country of origin information.

This was material to the decision, and therefore had to “be removed from the basket of reasons forming the overall cumulative decision as to BW’s credibility”.

Questions regarding the absence of a marriage certificate should also have been raised with BW before any adverse credibility decision was made.

Regarding questions as to her husband’s cause of death, the RAT took issue with the death certificate stating “haemorrhage” as the cause of death. Justice Peart stated that it was “curious” that neither “BW, the ORAC, the RAT, nor any of the legal personnel in the case…” appear to have noticed that the Certificate as to Cause of Death under the heading “Primary cause ” which was exhibited and actually stated “Haemorrhage/Gun Shot”

The reference to “Gun Shot” was clearly relevant to the credibility of BW’s case as it is corroborative of her claim that her husband was shot, giving rise to her own well-founded fear of Convention persecution should she be returned. That being said, this did not form part of the case before the Court of Appeal.

I.R. v Minister for Justice, Equality and Law Reform

Justice Peart stated that the trial judge somewhat mischaracterised the judgment of Cooke J. in I.R. v Minister for Justice, Equality and Law Reform IEHC 353 4 IR 144 by stating the test in terms of “whether the invalid reasons are major and go to the core of the decision (as opposed simply to impacting upon, in the sense of being relevant or potentially relevant to, the core claim)”.

According to Justice Peart, it was more correct to say that they must relate to something ‘material’.

“Even where there is a single fact, which is incorrect, within a decision as to credibility reached on a cumulative basis, or where the decision maker has failed to take into account some material fact, or where no opportunity was provided to BW to comment upon some matter of material concern to the decision maker upon which in part the adverse credibility finding was based that may not of itself be sufficient to justify setting aside the overall decision as to credibility”.

BW was provided with no opportunity to address or otherwise comment upon information material to her case and to her credibility.

Finding that fair procedures were not afforded to BW, Justice Peart allowed the appeal and quashed the decision of the RAT.