High Court dismisses judicial review application against Refugee Commissioner decision due to adequate alternative appeal remedy.

Neutral Citation Number: [2007] IEHC 441

THE HIGH COURT

2006 No. 972 JR

[2006 No. 972 JR]

BETWEEN

M. I. O.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

AND REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

Judgment of Mr. Justice Hedigan delivered on the 12th of December 2007

1. This is an application for leave to seek judicial review made on the part of the applicant in order to quash the decision of the

second named respondent dated the 13th of July 2006 to the effect that the applicant had failed to establish a well-founded fear of

persecution as defined under section 2 of the Refugee Act 1996 as amended. Further declarations are sought in relation to lack of fair

procedures and other reliefs associated with the above.

2. To exercise the Court's discretion in granting leave to seek such relief I must be satisfied that there are substantial grounds upon

which the applicant may argue that the Refugee Appeals Commissioner acted somehow beyond his jurisdiction or not in a manner

which was consistent with the applicant's right to fair procedure in the hearing of her application for a declaration as a refugee in

accordance with the above Act. In this context, I have also to examine whether judicial review is an appropriate way to proceed in

the light of the full appeal procedure that exists with an oral hearing and legal representation and which has been sought in this case.

3. In his judgment delivered on the 16th May 2007 in Fatimo Oydele v. The Minister of Justice, Equality and Law Reform and Others,

McGovern J stated:

"It is undesirable that parties should challenge decisions by way of application for judicial review when an adequate

remedy is available elsewhere."

4. In his judgment, he cited Stefan v. The Minister for Justice, Equality and Law Reform, where the Supreme Court, although holding

that in the circumstances of that case there had been a serious breach of the requirement for a fair hearing, nonetheless held that

judicial review was discretionary and could be refused where there was an adequate alternative remedy. In that case, the Supreme

Court relied upon and cited the judgment of O'Higgins CJ in The State (Abenglen) Properties v. Corporation of Dublin [1984] I.R. 381,

and specifically at page 393:

"The question immediately arises as to the effect of the existence of a right of appeal or an alternative remedy on the

exercise of the court's discretion. It is well established that the existence of such a right or remedy ought not to prevent

the court from acting. It seems to me to be a question of justice. The court ought to take into account all the

circumstances of the case including the purpose for which certiorari has been sought, the adequacy of the alternative

remedy, and, of course, the conduct of the applicant. If the decision impugned is made without jurisdiction or in breach of

natural justice, then, normally, the existence of a right of appeal or a failure to avail of such should be immaterial. Again,

if an appeal can only deal with the merits and not with the question of the jurisdiction involved, the existence of such not

to be a ground for refusing relief. Other than these, there may be cases where the decision exhibits an error of law and a

perfectly simple appeal can rectify the complaint or where administrative legislation provides adequate appeal machinery

which is particularly suitable for dealing with errors in the application of the code in question. In such cases, while

retaining always the power to quash, a court should be slow to do so unless satisfied that, for some particular reason, the

appeal or alternative remedy is not adequate."

5. It seems to me that the applicable principles to be applied in determining this type of application therefore is that the Court should

be slow to intervene unless the appeal procedure provided by the Refugee Act is, for some particular reason, inadequate. The Court

should take into account all the circumstances of the case and therefore should consider whether in the particular case the appeal

would be inadequate.

6. Turning to the particular case therefore, the grounds that are alleged are:

(a) the country of origin information was not shown or was not fully put to the applicant at her interview;

(b) a failure to consider the matters set out at section 11 (b) (a) to (n) of the Refugee Act 1996;

(c) a failure to accept her credibility;

(d) the country of origin information was used selectively;

(e) no adequate reasons were given;

(f) the Refugee Appeals Commissioner acted as an expert;

(g) the Refugee Appeals Commissioner failed to share the burden of proof, should have investigated further in Nigeria and

produced evidence in support of the application, and there should have been a reconvening of the interview to consider

any such further information and to allow the applicant to respond thereto;

(h) no proper inquiry as to the availability of police protection; and

(i) making decisions on a number of factual matters for various alleged unfounded reasons.

7. In relation to ground (a) and (d) which I can take together, it is clearly not the case that in the kind of interview which is

conducted in these kinds of cases that every detail of the country of origin reports needs to be put to the applicant. It is not an

adversarial contest that is occurring but an interview process to attempt to ascertain how well-founded the applicant's fear of

persecution is. It is important, in my view, that the gist of the applicant's fears should be explored and then examined by the

Commissioner in the light of the appropriate country of origin information.

8. Here, it seems to me that all aspects of the applicant's fears were explored during the interview; that is, the threat from her

mother-in-law, the threat from the Ogboni cult, the inability of her husband to protect her and her children, the inability of the police

to protect her or act in such cases, and her inability to find any safe refuge in Nigeria. These fears were then examined by the

Commissioner with the assistance of the country of origin information reports promised by the UK Home Office dated up to October

2004 which dealt with all of the above issues. The report was clearly concerned with the problem of cults and confraternities and

their practices but nonetheless concluded that there were safeguards in place in the form of the police protection and relocation in

Nigeria. The report of October 2005 dealt specifically with the Ogboni society relying on a letter of the 12/3/1998 which expressed a

view on the structure and sacrificial practices of this cult. This letter expressed a view that there is no firm evidence to suggest they

engage in human sacrifice as alleged by the applicant. Objection is taken to the date of this letter, indicating that the information is

out of date. There is evidence in the country of origin information of an incident in August 2004 where Nigerian police arrested 30

witch doctors on suspicion of human sacrifice where 50 mutilated bodies and 20 skulls were found in the so-called Evil Forest.

Nonetheless, the report also notes in this connection that there are no reports of any examples of cult members killing non-cult

members. In any event, the report exemplifies the proposition that the police do act in cases where cult killings are suspected.

9. In my view, it is clear that the country of origin information was not selectively quoted and further the fundamental matters which

ground the applicant's fears are dealt with both in the report I have seen and in the manner in which it was applied by the

Commissioner. Ground (b) refers to information that could only be prejudicial to the applicant and is not pursued, it seems to me, to

be something favourable to the applicant.

10. Ground (c) could not ground on application for judicial review save for some absence of rationality. No such absence is apparent

in this case.

11. Ground (e) is manifestly incorrect. Reasons were given, albeit the applicant was not happy with them.

12. There are no grounds whatever, in my view, to support the proposition in ground (f) that the Commissioner acted as an expert.

He considered expert reports and expressed a view thereon which is his function.

13. Ground (g) argues the investigation of the applicant's complaints was inadequate and that the interview should have been

reconvened in the event anything further came to light so as the applicant might respond to it. This is an attempt to have the Court

intervene to direct the modus operandi of the investigation. This the Court cannot and should not do.

14. Ground (h) argues that there was no proper investigation into the availability of police protection. There clearly was an

investigation and country of origin information specifically on this point was addressed and cited by the Commissioner.

15. The other matters I grouped together under point (i) are clearly matters inappropriate to grant an application for judicial review.

16. In truth, I consider this entire application is misconceived. There is not present any specific procedural failure in the nature of

that which was found in Stefan v. The Minister for Justice, Equality and Law Reform cited above, that is, the absence of a part of the

applicant's completed questionnaire because it had been omitted from the translation from Romanian which was before the residing

officer. This is the kind of fundamental error which is needed, in my view, to rise to the level of the "particular reason" needed to

move the Court to intervene. In short, some fundamental flaw in the procedure that either prevented an applicant from properly

presenting his case or prevented the deciding officer from coming to a proper decision. The failings alleged here and outlined in the

above are matters which should be dealt with in the appeal process that has been established by the Oireachtas and which gives a

perfectly adequate proceeding to enable her make her appeal.

17. I therefore refuse the leave sought.