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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O.E. & ors -v- Minister for Justice Equality & Law Reform & ors [2013] IEHC 586 (19 December 2013)
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Cite as: [2013] IEHC 586
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Judgment Title: O.E. & ors -v- Minister for Justice Equality & Law Reform & ors Neutral Citation: [2013] IEHC 586 High Court Record Number: 2009 182 JR & 2010 313 JR & 2011 277 JR Date of Delivery: 19/12/2013 Court: High Court Composition of Court: Judgment by: McDermott J. Status of Judgment: Approved |
Neutral Citation: [2013] IEHC 586 THE HIGH COURT JUDICIAL REVIEW [2009 No. 182 J.R.]
[2010 No. 313 J.R.] [2011 No. 277 J.R.] BETWEEN O.E. APPLICANT AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND MARGARET LEVEY (SITTING AS THE REFUGEE APPEALS TRIBUNAL) RESPONDENTS P.E.E. APPLICANT AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND RESPONDENTS F.E. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND O.E.) APPLICANT AND
REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND LAW REFORM, ATTORNEY GENERAL AND IRELAND RESPONDENTS JUDGMENT of Mr. Justice McDermott delivered on 19th day of December, 2013 1. These three applications come before the court in three separate sets of proceedings. O.E., the first named applicant, (Record No. 2009 182 J.R.) is married to P.E.E., the second named applicant (Record No. 2010 313 J.R.) and are the parents of F.E., the third named applicant (Record No. 2010 277 J.R.). 2. O.E. and P.E.E. are Nigerian nationals, who were married on 23rd December, 1999. Prior to their arrival in Ireland they had two daughters, P.B., born on 20th July, 2000, and P.P., born on 31st January, 2004. They left Nigeria on 30th January, 2008, and arrived in Ireland the following day. O.E. made an application for a declaration of refugee status on her own behalf and on behalf of her daughters and P.E.E. made a separate application on his own behalf. On 28th June, 2008, O.E. gave birth to their third daughter, F.E., on whose behalf an application for refugee status was submitted on 15th November, 2009, by her mother. Procedural History 4. Following the birth of F.E., O.E. made an application on the child’s behalf for a declaration of refugee status and completed an ASY1 form on 15th November, 2009. O.E. then attended for interview in respect of this application on 27th November. The Commissioner recommended that F.E. not be granted refugee status for the same reasons as the previous decision in respect of the mother and her two sisters. This was appealed to the Refugee Appeals Tribunal and following a further hearing on 11th August, 2010, the Tribunal rejected the appeal on 7th March, 2011. This was notified by letter dated 15th March, received on or about 18th March. 5. P.E.E., having applied on his own behalf for refugee status on 31st January, 2008, completed a questionnaire on 11th February, 2008. He subsequently attended for a s. 11 interview on 14th February. The Refugee Applications Commissioner recommended that he not be granted refugee status on 21st February. The applicant appealed this decision to the Refugee Appeals Tribunal by notice of appeal dated 20th March, 2008. The Refugee Appeals Tribunal rejected the appeal on 22nd January, 2009, following a hearing which also took place on 26th May, 2008. It should be noted that the same tribunal member, Ms. Margaret Levey B.L., determined each of these appeals. 6. P.E.E. following receipt of the three options letter made an application for subsidiary protection on 30th March, 2009. This application was refused on 15th February, 2010. In the meantime he made application for humanitarian leave to remain under s. 3 of the Immigration Act 1999. An examination of file was carried out under s. 3 of the Act, and completed on 8th February, 2010, following which the Minister made an order for his deportation on 16th February. 7. It is clear that the factual basis for the claims for asylum made on behalf of the children P.B. and P.P. were entirely dependent on the accounts of their parents given in the course of their respective applications as was the application made on behalf of F.E., who has never been to Nigeria. In that regard, the court notes that O.E. acknowledged that she and her husband completed the questionnaires together. Judicial Review Proceedings 9. P.E.E. and F.E. were represented by different solicitors and counsel. An application for leave to apply for judicial review in respect of F.E.’s case was issued on 1st April, 2011, seeking an order of certiorari and a declaration that the provisions of the Refugee Act 1996 were incompatible with European Union law and, in particular, that the application of the limitation period contained in s. 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000, was incompatible with European Union legal principles of equivalence and effectiveness. An order of certiorari was also sought quashing the decision made pursuant to s. 12(1) of the Refugee Act 1996, to give priority to applications for asylum from persons who are nationals of Nigeria. A declaration was also sought that this direction was incompatible with Article 23 of Council Directive 2005/85/EC. Additional declarations were also sought that the Refugee Act 1996, as amended, was incompatible with Article 39 of Council Directive 2005/85/EC and that the respondents failed to provide the applicant with an effective remedy before a court or tribunal within the meaning of Article 39. A further declaration was sought that the common law rules governing the remedy of judicial review were contrary to Articles 34(1), 34(3), and 43(1) and 43(2) of the Constitution. A declaration was also sought that the time limits imposed by Article 84, including O. 84A(4) of the Rules of the Superior Courts in circumstances in which European Union rights were asserted were not in compliance with Directive 89/665. However, the challenge to the Refugee Appeals Tribunal decision is on the evidence available made within the fourteen day period required under section 5. 10. Leave to apply for judicial review by P.E.E. was initiated by notice of motion of 18th March, 2010. The applicant seeks an order of certiorari quashing the decision of the Minister for Justice, Equality and Law Reform refusing to grant the applicant refugee status. He also seeks an order of certiorari quashing the direction that gave priority to applications for asylum from persons who are nationals of Nigeria. In addition, various declarations were sought that s. 12(1) of the Refugee Act 1996, as amended, was incompatible with Article 23 of Council Directive 2005/85/EC and that the Act was also incompatible with Article 39 of the same Directive. A further declaration was sought that no effective remedy had been provided before a court or tribunal within the meaning of Article 39 of the Directive. Orders of certiorari were also sought quashing the Minister’s refusal of subsidiary protection and the decision to make a deportation order in respect of the applicant. The applicant seeks an extension of time for the purposes of making these applications. The decision of the Tribunal was made on 22nd January, 2009. The three options letter was dated 27th February, 2009. The applications seeking leave to apply for an order of certiorari of the Tribunal decision is brought in excess of twelve months after the refusal. It is, therefore, well outside the fourteen day limitation period provided by s. 5 of the Illegal Immigrants (Trafficking) Act 2000, and the normal time period applicable at that time under O. 84 of the Rules of the Superior Courts as discussed in B.M.G.L. earlier in the judgment. No reason is furnished as to why time should be extended in this case. The subsidiary protection decision was made on 15th February, 2010, and the deportation order on 16th February. The subsidiary protection decision was notified to the applicant on 15th February and the deportation order was notified on 23rd February, 2010. He failed to obtain an injunction restraining his deportation and was deported to Nigeria on 12th March, 2013. 11. The parties are also agreed that the applications for leave to apply for judicial review on behalf of F.E. and P.E.E. may also be the subject of a telescoped hearing and in that regard, the respondents have furnished a draft notice of opposition in each case which may be adopted by the court as a formal notice of opposition should the court grant leave to apply in respect of any of the grounds asserted. The Claim for Refugee Status 13. O.E. expressed a fear in the questionnaire, completed with her husband, that she and her children were being persecuted by her husband’s Chief Priest and her husband’s family who sought to circumcise her daughters. This was repeated in her s. 11 interview and in evidence to the Tribunal on 26th May, 2008. The same story was told by her husband in the course of his interview and in the course of the evidence he gave to the Tribunal on the same date. However, in the course of O.E.’s s. 11 interview on 27th November, 2009, in respect of F.E.’s application for asylum, she stated by way of clarification that her two elder daughters had suffered Female Genital Mutilation (FGM) and that nobody, including the police, offered her any assistance at that time. Subsequently, in evidence to the Tribunal on 11th August, 2010, the applicant stated that her two elder daughters had not had FGM carried out upon them, but could offer no explanation for her pervious contention that they had. It is to be noted that both parents contended, in their respective applications, that the elder daughters had not been subjected to circumcision prior to the family’s departure to Bayelsa State in November, 2005. 14. The second element of the parents case arose out of an alleged fear of persecution because of their involvement in an organisation known as the “Movement for the Emancipation of the Niger Delta (MEND)” with which P.E.E. allegedly became involved in Bayelsa State. P.E.E. claimed that he had been persuaded to join the movement in March, 2007. He hoped that the movement would bring him employment opportunities in that he would be given contracts to build and repairs members’ houses. He joined this group because he was dissatisfied with the rate of pay which he earned in his then employment. His friend promised him a better job if he joined MEND. He was then offered a job and told that if he refused to take it his family would be seized and his previous employers would be contacted and that he would lose his job. 15. P.E.E. complained that problems arose on 15th January, 2008. He learned about a plan to attack an oil field which was to take place on 13th December, 2007. He claimed that he heard about this attack on 10th December and secretly travelled on a speedboat to the Shell Petroleum Development Company in his working overalls. He went to the gate hoping to get in, but the security man refused to him entry. He waited until he met a white man in order to tell him about the planned attack on 13th December. He finally met a white man and told him that he belonged to MEND and of the planned attack, which involved the kidnapping of a white man and the blowing up of pipes with dynamite. Just before the attack the security forces arrived, as a result of which there was an exchange of fire in which a number of people were killed. MEND found out about his role as an informer. He presumed one of the security men at the gate was a MEND member and must have told them that he had seen a man wearing overalls bearing the logo of the company for which he worked. On being questioned at gunpoint by his friend on 18th December, 2007, he admitted his role as an informer. The evidence given by P.E.E. to the Tribunal was summarised in the Tribunal’s decision at para. 3:-
17. Because of his alleged betrayal of the movement, the applicant claims that his house was blown up and his nephew murdered on 15th January, 2008. He claimed that he and his family discovered this on their way home from market and drove to a friend’s house. His friend visited his home and confirmed that MEND members had carried out the attack. He fled with the family to Lagos, to his uncle. His friend was subsequently murdered on 20th January in Bayelsa to which he had returned in order to obtain money for the family’s travel arrangements. The applicant was informed that his friend had been tortured but would not reveal information about the applicant or his family. 18. O.E. claimed not to have any information concerning her husband’s involvement in MEND and knew little about it. She was able to describe the attack on the house and returning from market to see smoke coming from her home. She later learned that MEND had carried out the attack. She and her husband fear that if returned to Nigeria they will be in danger from members of MEND. They also claimed that their daughter, F.E., would be in danger from MEND members who had a countrywide presence. The claim made on behalf of F.E. and her daughters was also based on the information summarised above and more extensively set out in the questionnaires, interviews and decisions exhibited in these proceedings. The Tribunal Decision in the Case of O.E. and P.E.E. 20. The Tribunal concluded that the findings made in respect of the husband’s claim to have been involved with MEND were relevant to O.E.’s claim. The Tribunal identified a number of issues upon which the husband was not credible:-
(ii) Initially he claimed he was forced to take an oath, whereas later at the Tribunal hearing he said he refused to take an oath. (iii) Having claimed to have joined MEND under duress, he claimed that he laid down conditions for joining the movement in that they were required by him to desist from violent tactics and engage in peaceful mass protests. He claimed that they had agreed and promised to abide by his terms. (iv) He claimed that he engaged in recruitment among the youth of the area. At the Tribunal hearing he claimed that he never canvassed support for MEND. In that regard, the Tribunal noted that he claimed to be opposed to bunkering (tapping oil pipes and stealing oil), kidnapping and blowing up pipelines which, were the main activities of the group and “begged the question what he was recruiting these youths to do”.
22. The Tribunal also disbelieved his account of travelling to the Shell Petroleum Development Company in a speedboat, waiting for a white man and informing him that he belonged to the MEND group and of the planned attack. He also claimed that he had worn overalls with the “Afro Nobel Nigeria Limited” company name or logo upon it, which is how MEND came to know that he was the informer. The Tribunal concluded that “if he was attempting to pass on information secretly, he could not have gone about it in a more overt way”. The overalls worn by the applicant contained the name of the first company with which he worked and earned so little money about which he complained and, as a result of which, he was offered a job by MEND:-
26. The Tribunal also considered the father’s reliance upon the FGM issue concerning his children. It was indicated that this aspect of his application would be dealt with in the decision concerning his wife’s appeal, as it was based on the same evidence. The Tribunal stated:-
The Tribunal Decision in the Case of F.E. 29. The Tribunal recognised this factor and that the mother and father’s applications for asylum had been refused. It was claimed that F.E. would be circumcised by her father’s family and community if she returned to Nigeria and also that the group MEND, of which her father was a member, “would be after her daughter because her father gave a report to a Shell company about MEND”. The Tribunal was satisfied that the findings in the parents’ appeals were clearly relevant to this case. The Tribunal then quoted the evidence and findings in the mother’s appeal and determined that since it had not accepted that the applicant’s parents’ claims were genuine, it followed that the applicant’s claim based on the same evidence as that of her parents, must also fail. In addition, however, the Tribunal relied upon further serious credibility issues which arose in respect of the applicant’s mother’s evidence. The Tribunal set out in some detail what it regarded as a serious contradiction between the previous testimony and assertions by the applicant’s mother that the two elder daughters had not been subjected to FGM before the family left for Bayelsa State, and her claim that they had been subjected to FGM made in the course of her s. 11 interview on 27th November, 2009, which the mother emphasised as a point of clarification. The Tribunal noted that, though the mother reverted to the claim that they had not been subjected to FGM at the Tribunal hearing, she was unable to account for this fundamental inconsistency in the story which the Tribunal determined “seriously undermines her credibility and the credibility of the applicant’s claim”. The Tribunal rejected the appeal. The Mother’s Challenge
(ii) Ground 3 – concerning reliance placed by the decision maker upon a decision in respect of the applicant husband’s appeal; (iii) Ground 4 – the failure to use up to date country of origin information; (iv) Ground 5 – failure to apply a forward looking test; (v) Ground 12 – the delay of approximately eight months in arriving at a decision in the case was said to be a breach of the applicant’s right to good administration; 31. It was submitted that the Tribunal determination that there was no evidence of a threat in respect of FGM to the two elder daughters because the family had previously lived for a period of over two years in Bayelsa State before their departure for Ireland, amounted to a determination that internal relocation in Nigeria was an alternative open to the applicant mother and her daughters. It was also submitted that the Tribunal erred in law in treating internal relocation as a component part of the determination of refugee status rather than as a matter to considered separately as an alternative open to the applicant following the determination of that status. Furthermore, it was submitted that the Tribunal erred in failing to nominate a place where relocation ought to take place and to assess it by reference to up to date country of origin information. In that regard, it was submitted that pursuant to para. 34 of the UNHCR Guidelines on Internal Relocation, the burden of proof in relation to the matter lay upon the decision maker but that the Tribunal failed to have regard to that burden of proof. 32. I am satisfied that there is no merit in any of these submissions. The Tribunal carefully assessed all of the evidence tendered in respect of the issue concerning FGM. Even if such a fear existed, the family had successfully relocated to Bayelsa State and remained there for a period of over two years. This clearly was not an immediate cause for the flight of the family. In addition, the court does not accept that the issue of relocation was inappropriately considered on the basis that internal relocation should be considered as an alternative to refugee status and not as a component of the test as to whether one was entitled to claim it. 33. Article 8 of the Qualification Directive (Council Directive 2004/83/EC of 29th April, 2004) provides:-
2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant. 3. Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin.” Grounds 3 and 5 35. It is equally untenable to submit that because the husband’s account was rejected on credibility grounds that it is irrational to select elements of his account and conclude that they undermine O.E.’s claim, when their claims are so closely connected and were considered fully. Ground 4 Ground 12 38. In this case there has been a delay of some nine months between the oral hearing and the delivery of the decision in O.E.’s case. A substantial amount of time was devoted at the hearings to the testimony of O.E. and that of P.E.E., notes of which were taken and typed on the same day. To that extent there was, at all material times, a note or transcript available of the all of the evidence given. No issue was taken in relation to any misstatement or error of fact or error made by the tribunal member in her recollection of any fact relied upon in the decision. There is no claim of any prejudice to the applicants arising from this delay. Though the analysis carried out by the tribunal member was focused, in large measure, on the internal inconsistencies arising from the testimony given by P.E.E. which was of enormous importance in the consideration of O.E.’s case, the testimony relied upon in that regard is not said to have been inaccurately remembered or recorded. I am not satisfied that the delay in this case may be regarded as so substantial or unreasonable as to give rise to concerns as to the reliability of the decision made or to render it fundamentally flawed. Ground 13 40. Grounds 10 and 15 are too vague and general to attract any relief by way of judicial review. 41. I am, therefore, satisfied that O.E. has failed to establish any substantial ground upon which leave might be granted to apply for judicial review. I am not satisfied to extend time for the making of this application having regard to the absence of substantial grounds and the court will, therefore, refuse the application. The Father’s Challenge Grounds 1 – 4 44. These grounds were the subject of the judgment of the European Court of Justice in the cases of H.I.D. & B.A. v. Refugee Applications Commissioner Case C-175/11 (judgment delivered on 31st January, 2013) which answered two questions concerning identical issues. The court concluded that the prioritisation of cases under s. 12(1) of the Refugee Act 1996, was not in violation of Article 23 of the Directive. It also concluded that the remedies available to asylum applicants in this jurisdiction were not in breach of the Directive. I am, therefore, satisfied that P.E.E. has not demonstrated substantial grounds upon which to grant leave to apply for judicial review in respect of these matters. Grounds 4 & 5 46. I have considered the submissions made in respect of Ground 5. It is clear that the applicant’s claims to be in fear from members of MEND or, indeed, from other indiscriminate violence in the Delta region, were considered by the officials and the Minister and it was found that adequate state protection was available to address any concerns that he may have in that regard. It is clear also that any representations made in this regard and any materials submitted were considered in reaching the decision. 47. I am, therefore, satisfied that no arguable or stateable ground has been advanced to challenge the decision refusing subsidiary protection in this case. Grounds 4 & 9 – The Deportation Order 49. In Ground 9 it is claimed that the analysis of the applicant’s family life was lacking in cogency and that no regard was had to the best interests of the applicant’s children in respect of their ability to properly present their asylum or other claims in the absence of their father. This argument is totally without merit. The proceedings initiated by O.E. challenges the decision made in respect of O.E. and his daughters P.B. and P.P., and the proceedings brought in respect of this daughter, F.E., are maintained in the name of her mother. It is not necessary that he be present in this jurisdiction to advance or assist in the cases brought concerning this daughters. Indeed, the case on behalf of each child has been presented to the relevant authorities and to the High Court, and no complaint has been made in any respect that their interests were not adequately protected at any stage of those proceedings by reason of the absence of their father. The children’s mother has, at all material times, represented their interests and been legally represented in so doing. 50. The applicant stated his belief in his s. 3 application that it was in the best interests of the children and their welfare that he was given permission to remain in Ireland and continue to be a central figure in their upbringing. The examination of file in this applicant’s case contains an extensive consideration of his right to private life under Article 8 of the Convention and a somewhat shorter consideration of his family life rights under the same Article. However, it is clear from the submissions and the materials submitted to the Minister and the terms of the examination of file that full regard was had to the family circumstances of P.E.E. and that of his children and wife. The Minister was fully aware of the applications made for asylum and the challenges brought by way of judicial review. A submission was made to the Minister that this applicant should not be deported prior to the conclusion of the asylum process in relation to other members of his family. It was noted in the examination of file that there was nothing to prevent the deportation of one member of a family while decisions were awaited in respect of other members (see F.P. v. the Minister for Justice [2002] 1 IR 164). 51. It should be noted that although it is complained that the examination of file contains a “minimalist” consideration of the best interests of the children, very little was advanced in the submission made to the Minister concerning how the best interests of this applicant’s children would be adversely affected by his removal. It is notable that separate proceedings were conducted by separate firms of solicitors representing husband and wife in this case. The same firm of solicitors represented P.E.E. and F.E., though the proceedings issued in respect of F.E. are in the name of her mother and not her father. I am not satisfied that the bests interests of the children in this case were not considered in the father’s case insofar as they were relevant, and nothing has been advanced to indicate in what particular respect their best interests were ignored or not considered. It is obvious that a deportation order would result in family disruption. The facts of the family’s life in Ireland are set out in detail in the asylum papers which were considered. The position was that the mother and children only had the right to remain in this State for the purpose of their asylum applications. These have now failed and the court has determined that their respective challenges to the refusal to grant them refugee status have also failed and they, therefore, remain in the state as failed asylum seekers. The children are not Irish citizens, are not the subject of the deportation order under challenge or parties to the father’s proceedings. I am satisfied in all the circumstances that this applicant has failed to establish any substantial ground upon which to challenge the deportation order pursuant to Ground 9. I am also satisfied that notwithstanding the omission of the words “best interests of the children” from the examination of file, it is clear, in this case, that all relevant aspects of their best interests in respect of this deportation order were adequately considered. 52. I am not satisfied that any substantial ground arises from the matters set out at grounds 6, 7 or 10. The issue of refoulement was adequately considered in the examination of file and the grounds advanced are in the most vague and general terms and not susceptible to a grant of leave to apply for judicial review. 53. I am, therefore, not satisfied that P.E.E. has established any substantial ground upon which to grant leave to apply for judicial review and I also refuse his application. F.E.’s Challenge Grounds 1(a), (b) and (c) 4 and 10 55. Ground 1(c) claimed that an interpreter was not provided in accordance with the provisions of the Directive to the applicant. The applicant was aged two years and two months in April, 2010, at the date of the oral hearing. Her mother gave evidence at the hearing without any necessity for a translator then, or at her earlier hearing and stated that English was her first language. This ground is unstatable. Ground 4 constitutes a general claim that an effective remedy was not afforded to the applicant under Article 13 of the European Convention on Human Rights in respect of what is presumably a breach of her Article 8 rights. I am not satisfied that this ground is precise in its formulation or gives any particulars or identifies any facts or matters relied upon which would enable the court to grant leave to apply for judicial review. Ground 2 57. No case has been advanced that the child applicant was in any way prejudiced by this delay. As set out earlier in this judgment, the Tribunal had a duty to determine the application within a reasonable period. There is no complaint in this case of any error of fact by the Tribunal in F.E.’s decision and no other specific prejudice caused to the applicant by the delay is cited. The mother and father provided the factual basis for the child applicant’s claim. Furthermore, the evidence given by the mother at the Tribunal hearing was analysed and the additional feature which emerged in relation to a claim made in the course of the child applicant’s application that the two older daughters had been subjected to FGM in Nigeria and, subsequently withdrawn, was addressed by the Tribunal. Once again, the evidence was typed at the hearing thereby ensuring that a record was maintained of the evidence given, as happened in all three cases. I am not satisfied that the integrity of the decision in this case was in any way undermined by the delay or could give rise to a substantial ground upon which to grant leave to apply for judicial review. Ground 8 Grounds 3, 5, 6, 7, 9, 11 and 12 Ground 13 61. I am, therefore, satisfied that no substantial grounds have been advanced on behalf of F.E. to justify an order granting leave to apply for judicial review. Conclusion |