High Court of Ireland Decisions

Neutral Citation No: [2005] IEHC 338

THE HIGH COURT

JUDICIAL REVIEW

[2005 No. 057 JR]

BETWEEN

F. A.

APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

EX-TEMPORE JUDGMENT of O'Neill J. delivered the 13^th day of October, 2005.

In these proceedings the applicant seeks leave to apply for judicial review and an order of certiorari, quashing the decision of the respondent to make a deportation order against her, which decision was communicated to the applicant by way of a letter of 12^th January, 2005. In order to succeed in this application for leave it is well settled that the applicant must demonstrate substantial grounds for contending that the order in question should be quashed. It is equally well settled that in order to show substantial grounds the applicant must demonstrate that the grounds which she advances are weighty and not tenuous and are not insubstantial.

The applicant is a Nigerian national. She came to this country in July, 2003 when she was 37 years of age. She appears to be a married lady but widowed and has four children, two boys and two girls. She is a trained nurse and midwife by profession and she carried on that profession in her native village in Nigeria where she ran a health centre. It was connected with that that the events which led to her coming to Ireland, it was claimed occurred. In the course of her activities as a nurse and midwife, habitually she gave talks to the women of her village on various aspects of reproductive health and on a particular Wednesday in July of 2003 or early July of 2003 or late June, she gave a talk on the subject of female genital mutilation. She herself was implacably opposed to this practice and the talk she gave dealt with the health consequences of this terrible practice. Later in the day she was told by a friend of hers who had attended the talk, that a very dim view of what she had done, had been taken by the elders in her village and in particular the chief person. She was informed not to stay in her house that night, that she was in danger. She took that advice and she and a friend went surreptitiously through the bush to another village where she was sheltered by a male friend. It transpired according to her history that in fact, that night her house was burnt down and it was her belief that it was intended that she would be in the house when it was burnt down. All of this she claims comes about because of her opposition to the tradition in that part of Nigeria of carrying out this terrible practice on women, it being done from a very early age, sometimes new babies up to the time when the woman would have her first child and it was because of her opposition to this tradition or law which had been apparently observed for generations that she feared that her life was in danger and she bases that apprehension on her claim that her house was burnt down at the time and that she was intended to be in the house when that happened. She also fears, on the basis of what she claims she was told, that she would be ostracised from her community because of what she had done and because of her opposition or campaign against the practice of female genital mutilation.

On the 7^th July, 2003, the friend who sheltered her made arrangements to bring her out of Nigeria and she flew with him from Lagos in two stages to get to Ireland. She is not sure where the plane touched down but she claims she transferred to an Aer Lingus flight which landed in Cork. Her friend arranged for her to be put up in a guest house and then he disappeared. She remained in this guest house not knowing want to do until it appeared the money ran out and this would be about a week later, at which stage she got in touch with a catholic priest and through that intercession she was brought into the asylum process.

About a week after her arrival in Ireland she made her application for asylum by filling out the normal form for that purpose. Thereafter the normal asylum process took place. She filled out a lengthy questionnaire as is standard. She was then interviewed by a member of the Refugee Application Commission and he or she in due course prepared what is known as the Section 13 Report in which they concluded that the applicant didn't have a well founded fear of persecution on the basis of her story and they recommended that she would not be accorded refugee status. The applicant appealed against that to the Refugee Appeals Tribunal. An oral hearing did not take place and in due course the Refugee Appeal Tribunal gave its decision which was to the effect that her claim for refugee status was to be rejected. The decision of the Refugee Appeals Tribunal is of considerable importance in this case and it is worth-while in my view to read it in full. It is as follows and I quote.

"Introduction.

The applicant in this matter brings her appeal against the recommendations of the Refugee Applications Commissioner that she be refused refugee status in Ireland. The recommendation of the Commissioner includes a finding of the kind listed in s. 13 sub-s. 6 of the Refugee Act 1996 as amended and accordingly the applicant's appeal was determined without an oral hearing. The Tribunal notes that the applicant's application showed neither any basis or minimum of basis contention that she is a refugee."

He then goes on under the side heading Points of Claim to say:

"The following are the main points of the applicant's claim. The applicant states she is a Christian. She is a widow. She worked as a nurse in a place called Amican. In June 2003 she claims to have organised a talk concerning female genital mutilation. After the talk she was approached by a women who said that some men from the local village were planning to harm her on account of the talk that she gave. She was warned that she should leave the locality. Having left her house, it appears that it was burnt by some members of the local village. She stayed with a friend from 26^th June, 2003, to 7^th July, 2003. Prior to this event she did not have any difficulties. She did not make any report to the police concerning the attack on her house. She claims that she would be killed if she returned to Nigeria."

And then he goes on to say under the side heading Decision and Reasons as follows:

"I am not satisfied that this applicant is a refugee within the meaning of s. 2 of the Refugee Act 1996, the following are my reasons for the foregoing decision. In essence this applicant fears that she will be persecuted on account of the fact that she spoke out against female genital mutilation. However it should be noted from country of origin information that various government organisations have launched a campaign in opposition to FGM. Therefore I think that it is unlikely that this applicant would suffer in the manner as stated on account of her opposition to FGM. The fact that the government are opposed to female genital mutilation is to a degree an indication that State protection is available to this applicant. With reference to the attack on the applicant's house, this applicant decided not to report the matter to the police. I am satisfied from country of origin information that State protection would be available to the applicant. Insofar as this applicant's fear is concerned I am of the view that it is not 'well founded' for the foregoing reasons and accordingly I affirm the recommendation by the Refugee Applications Commissioner and dismiss the appeal."

That decision of the Refugee Appeal Tribunal was not challenged on judicial review and therefore it is a decision which necessarily and finally determines the issues which were raised in that appeal, that is to say, the question of whether or not the applicant had a well founded fear of the persecution which she alleges and as a consequence it determined her application for refugee status.

After the decision of the Refugee Appeal Tribunal, in due course, the applicant was notified of the making of the deportation order sought to be impugned in these proceedings and the usual steps were followed. Her solicitor sent a lengthy representation on her behalf. It is to be observed that that representation was so far, as her fears or apprehensions as to what might happen to her in Nigeria is concerned, an exact repetition of the case she had made all along which of course had been heard and determined finally by the Refugee Appeal Tribunal. In addition of course the representations also included statements as to her professional competence and the value that that could be to this country, were she permitted to remain here as a refugee; statements to the effect that she would have no difficult getting work. There were also in it statements to the effect that she is, and there doesn't appear to be any doubt or dispute about this, she is and has been here in Ireland a law abiding person and the representation was accompanied by several testimonials from persons who clearly had as a result of their contact with the applicant formed a good opinion of her.

In due course all of this material was considered and the Minister clearly decided to reject her application to be permitted to reside in the State and decided to make the deportation order in question and these proceedings then are brought.

In the statement of grounds the applicant sets out fifteen grounds. That was the final end result so to speak after an amended statement. I think it would be fair to say that in the course of the argument in this case, Mr. O'Halloran reduced those grounds to approximately four core submissions and the first of these submissions which would relate directly to ground no. 1 is that there is no evidence of any consideration by the Minister of the question of torture pursuant to s. 4 of the Criminal Justice [United Nations Convention Against Torture] Act 2000 and it was submitted that there was an obligation on him to consider the applicants case in the light of 5.4 and the failure to have done that the question of torture under the provisions of s. 4 of that Act vitiates the validity of the order made. Secondly it was submitted that certain country of origin information which was favourable to the contention made by the applicant to the effect that persons who engage in the activity she was engaged in are subjected to very serious and very dire consequences, this was not considered or was ignored by the Minister.

Next the submission that was made was to the effect that there was an error demonstrated on the face of the record which vitiated its validity. The next submission that was then made was that there was an obligation that the deportation order set out what was the destination of deportation and that this was not done and hence the order was invalid. I will take each of those in turn.

The first to be considered is the submission to the effect that there was culpable failure in not having regard to s. 4 of the 2000 Act. What one has to consider here is the apprehensions that the applicant had, if she were to return to Nigeria and her apprehension was or is, that if she went back to Nigeria she would be killed or if she wasn't killed that she would be ostracised from her community. It would appear to me that whether one is looking at s. 5 of the 1996 Act or indeed s. 4 of the 2000 Act one is inevitably looking at the same apprehended conduct namely a fear of death or a fear of ostracism. It is instructive I think to quote the two sections involved. S. 5 of Refugee Act 1996 is in the following terms and I quote:

"5.(1) A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion."

And it goes on in subsection (2) to say:

"(2) Without prejudice to the generality of subsection (1), a person's freedom shall be regarded as being threatened if, inter alia, in the opinion of the Minister, the person is likely to be subject to a serious assault (including a serious assault of a sexual nature)."

Section 4 of the Criminal Justice [United Nations Convention Against Torture] Act 2000 is in the following terms:

"4.-(1) A person shall not be expelled or returned from the State to another State where the Minister is of the opinion that there are substantial grounds for believing that the person would be in danger of being subjected to torture."

And it goes on in subsection 2 to say:

"(2) For the purposes of determining whether there are such grounds, the Minister shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights."

The definition of torture which is contained in sub-s. 1 of the Act reads as follows:

"Torture" means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person

(a) for such purposes as-

(i) obtaining from that person, or from another person, information or a confession,

(ii) punishing that person for an act which the person concerned or a third person has committed or is suspected of having committed, or

(iii) intimidating or coercing that person or a third person,

or

(b) for any reason that is based on any form of discrimination, but does not include any such act that arises solely from, or is inherent in or incidental to, lawful sanctions."

I would be of opinion and indeed I think it would be almost impossible to argue against the proposition that the apprehensions that the applicant has namely of either death or ostracism fall equally comfortably within s. 5 of the 1996 Act or within s. 4 of the 2000 Act. There could be no doubt but that the threat to kill would have to be seen as either punishment or as a coercion or intimidation and similarly the threat of ostracism or the actual implementation of ostracism.. It is of course clear that the effect of the decision of the Refugee Appeal Tribunal is that there was a finding which is now final and unchallengeable that the applicant did not have a well founded fear of either of these two terrible eventualities and of course that being so, the Minister is not only entitled to have respect to that conclusion but in the absence of new evidence which would be sufficiently compelling to persuade him otherwise, in my view he would be bound to have regard to and to observe that final decision of the Refugee Appeal Tribunal. It seems to me that given the fact that the conduct which is apprehended is exactly the same whether one considers it under either the rubric of the s. 5 of the 1996 Act or under s. 4 of the 2000 Act, a consideration of one that is to say a consideration under s. 5 of the 1996 Act is necessarily and unavoidably a consideration also under s. 4 of the 2000 Act because no matter which way one considers it, the conduct which is apprehend clearly falls within both sections and in my view this is a case in which the dictum of the Chief Justice in the Baby O case applies, and which is to the following effect and I quote from the Baby O case as follows:

"Consideration by the first respondent of refoulement in this case necessarily involved the consideration by him of whether there were substantial grounds for believing that the second applicant would be in danger of being subjected to torture within the meaning of Section 4(1) of the Criminal Justice (United Nations Convention Against Torture) Act 2000".

I am firmly of the view that that statement by the learned Chief Justice has direct application to the facts of this case and that being so it seems to me that the applicant has failed to demonstrate that so far as this ground is concerned that there are substantial grounds for contending that the decision should be quashed.

That brings me then to consider the next submission which was made on the applicant's behalf and that was that there was an error on the face of the record. The error which was identified was on the front page of what in fact is a report underlying the decision and the passage that exception was taken to, was at the bottom of what was in fact the first substantial paragraph and it was the following where it is stated and I quote "Ms. A.i did not report the matter to the police." It seems to me that when one goes through all the information, the interview and the questionnaire, that it is quite clear that that in fact is not an error. It appears to be a correct statement. It certainly may have been the case that after her departure from Nigeria there may have been some written communication with the police but it is quite clear from her own statements in her answers to questions that she did not report the matter to the police. But apart from that this is not an error on the face of the record. If it was an error, and I don't think it is, it is a part of the report going to the Minister and therefore not part of the record at all and in that regard I am quite satisfied that the applicant has failed to demonstrate substantial grounds on this basis for contending that the order should be quashed.

The next ground which was advanced by Mr. O'Halloran was that certain country of original information that was favourable to the contentions of the applicant was not addressed or considered by the Minister. The first thing to be observed here is that in fact there was no evidence from which anyone could reasonably conclude that that information was not before the Minister and of course the onus rests on the applicant to make that clear or make that plain and that hasn't been done. It is quite clear that this particular piece of country of origin information was before both the Refugee Applications Commission and that seems absolutely plain because the particular piece of information is contained in I think it is probably an email dated the 7^th May, 2004, addressed to Deidre Byrne and that would appear to be Deidre Byrne who was the lady who conducted the interview and who prepared the report. And in it there is a passage which reads as follows:

"FGM eradication at the field level should be seen as a process of change that includes risk taking. Individuals who speak out against FGM in Africa are seen as threatening the social structure and thus may risk ostracism by their tribe. Some of them face physical danger including death threats and 'planned accidents' in the remote areas where interventions often take place.

Masai women activists conducting FGM research in the remote area of Kenya for example risked being disowned by their tribe as well as being attacked by a lion that had killed a village earlier. These women and many others report of facing such risks and surviving or transforming positive experiences."

That is primarily the passage which was pointed to as being left out of consideration but as I have said it is quite clear that that was considered as it seems that it was sent directly to Deidre Byrne by email and on the face of it, it would seem that as a matter of high probability that that material was considered by the Refugee Applications Commission and in turn by the Refugee Appeal Tribunal.

In my view given the finality of the decision of the Refugee Appeal Tribunal the Minister cannot ignore or reject it in the absence of the provision of new and compelling evidence which would persuade him not to accept the recommendation. There has been no such new evidence presented to him and in my view having regard to the fact that all of this information was considered and that the Commission and then the Tribunal reached its decision and these are now beyond challenge, it is not now open to the applicant to say that she is in any sense damnified by any non consideration of that material. I am quite satisfied that that being so the applicant has failed to demonstrate that this ground is a substantial ground for contending that the decision should be quashed.

This brings me finally to a submission made by Mr. O' Halloran which was that the deportation order should have included the destination. It is quite clear from the decision of Mr. Justice Butler in Sibiya v. The Minister for Justice Equality and Law Reform that the regulations do not require that and demonstrably that submission fails.

I am satisfied therefore that in all the circumstances none of the grounds put forward by the applicant are of such weight as to amount to substantial grounds for contending that the decision of the Minister should be quashed and therefore I would refuse the application.

Approved: O'Neill J.