High Court of Ireland Decisions
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Cite as: [2014] IEHC 568
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Judgment
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Neutral Citation: [2014] IEHC 568 THE HIGH COURT JUDICIAL REVIEW [2011 No. 326 J.R.] BETWEEN O.O. (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND T.T.O.) APPLICANTS AND
MINISTER FOR JUSTICE, EQUALITY AND DEFENCE, REFUGEE APPLICATIONS COMMISSIONER, IRELAND AND ATTORNEY GENERAL RESPONDENTS JUDGMENT of Mr. Justice Barr delivered on the 25th day of November, 2014 Background 2. The applicant was born in Ireland on 21st June, 2010. On 19th November, 2010, an application for refugee status on behalf of the applicant was submitted by her mother. On 7th March 2011, the applicant’s mother attended for an interview in connection with her daughter’s application for asylum. 3. In the course of the interview, she was asked what she feared for her child if she were to go to Nigeria. She replied that the applicant’s life would be in danger, that she would have no place to live and no place to return to. She was asked did she fear that someone would harm her child, to which she replied “yes, because of the religious crisis in Jos, they are killing the women and children and this is why I left Nigeria”. 4. The applicant’s mother confirmed that her child’s fears were solely based on her own fear of returning to Nigeria. 5. She was asked whether there was anyone specifically in Nigeria that she feared would deliberately harm her daughter. She replied:-
7. On the issue of the availability of police protection, she said:-
10. By letter dated 11th April, 2011, the applicant’s solicitor submitted a Notice of Appeal to the RAT. In the covering letter, the solicitor also asked that copies be made available to the applicant of reports of previous decisions of the RAT in relation to similar cases as that of their client. The applicant required this information so that she could consider, with her legal representatives, the basis on which the RAT dealt with such cases in the past and the reasons for the decisions made which will, in turn, assist her in deciding how best to approach her appeal. The letter also stated that if such documentation was not forthcoming, they would have no alternative to but to issue the appropriate proceedings without further notification. They concluded the letter by stating that the appeal was lodged without prejudice to any application for judicial review of the decision of the RAC that may be sought by their client. 11. There does not appear to have been any response to that letter. On 3rd May, 2011, the RAT gave its decision in the matter, which had proceeded as a papers-only appeal. The Tribunal dismissed the appeal and affirmed the decision of the RAC. 12. By a Notice of Motion issued in April 2011, the applicant commenced these proceedings. The Applicant’s Case
c. (Not relevant) d. No adequate regard has been had to the minimum standards mandated by the Procedures Directive and/or the Qualification Directive and/or S.I. 518/2006. In particular, and without prejudice to the generality of the foregoing, no country of origin information was consulted by the decision makers. e. The UNHCR Guidelines in relation to internal relocation have not been applied. The question of the availability of State protection was not properly dealt with. f. No proper objective or subjective analysis of the applicant’s claim has been undertaken. g. The second named respondent failed to carry out any or any proper forward looking test as is required by, inter alia, the UNHCR Handbook. h. Insufficient or inadequate or no consideration of the applicant’s application.” 15. In the present case, no objection was taken to the time within which the Notice of Motion issued, being at some time in April 2011. The report of the RAC was dated 15th March 2011, and was signed off on 23rd March 2011. However, the respondent does object to the introduction of new grounds for seeking relief introduced for the first time in the written submissions of the applicant, which are undated, but one would assume that they were lodged some short time before the hearing of this matter on 23rd May 2014. 16. In circumstances where the grounds seeking relief are in somewhat general terms, it was inevitable that they would be made more specific as time went on. This particular ground, that it was unlawful to place reliance on the previous refusal of the mother’s claim when considering the child applicant’s claim, was covered by ground F in the statement of grounds, which was in the following terms:-
18. Before coming to the substantive issue raised under this heading, it is necessary to deal first with a procedural point made by the respondent. The respondent argues that the applicant cannot pursue the judicial review proceedings, when she has elected to pursue an appeal to the RAT, albeit an appeal that was on the papers only. 19. In MAB v. Refugee Applications Commissioner [2014] IEHC 64, O’Malley J. considered the circumstances in which an applicant could pursue an application for judicial review rather than proceed by way of an appeal to the RAT:-
A. Where the legislature has put in place an administrative and quasi judicial scheme postulating only limited recourse to the courts, certiorari should not issue if that statutory procedure is adequate and more suitable to meet the complaints upon which the application for judicial review is based. B. The fact that an appeal against the impugned decision or measure is available to an applicant is not of itself a bar to the issue of certiorari by the High Court. C. The Court should not exercise its discretion to refuse certiorari to quash a bad decision if its continued existence may produce damaging legal effects. D. For the High Court to intervene in a statutory two-stage procedure such as is involved in planning and asylum matters, it is not sufficient to point to an error within jurisdiction on the part of the decision-maker at first instance. Some extra flaw in the decision must be shown such as to indicate that the decision-maker has acted out of jurisdiction and in disregard of one of the principles of natural or constitutional justice. E. The essential question is whether the available remedy by appeal is the more appropriate remedy. F. A variety of factors fall to be considered in assessing the appropriateness of the remedies including: the nature and scope of the appeal and the stage in the statutory scheme at which it arises; whether it [includes] an oral hearing; the type of error sought to be challenged in the decision and whether it can be remedied on appeal. G. The fact that the appeal does not provide for an oral hearing, while relevant, is not itself a ground for granting relief. An oral hearing is not always an essential ingredient of a fair appeal. Cooke J. considered that it followed that leave to apply for judicial review in order to quash a report and recommendation of the Commissioner should only be granted in exceptional cases, where it is demonstrated that there is ‘some fundamental flaw or illegality in the Commissioner's report such that a hearing upon appeal before the Tribunal will be inadequate to remedy it.’ As an example of such a case he cited Stefan v The Minister for Justice [2001] 4 IR 203. In that case (which dealt with a two-stage process in operation before the enactment of the Refugee Act, 1996), Denham J. quashed a first instance decision made in the absence of a translation of a material document. Denham J. did not consider that the availability of an appeal was a sufficient remedy, on the basis that ‘A fair appeal does not cure an unfair hearing.’” 20. In Uzoh v. Minister for Justice, Equality and Law Reform (Unreported, Birmingham J., 10th April, 2008), the court refused certiorari of the RAC decision and held that the applicant should pursue his remedy by way of appeal to the RAT. Whereas in Stefan v. Minister for Justice, Equality and Law Reform [2001] 4 IR 203, at the hearing of the matter at first instance, part of an answer at interview was not translated. The decision was given against the applicant. The High Court granted certiorari of the first instance decision. On appeal to the Supreme Court, it was held that the decision at first instance was reached in breach of fair procedures and therefore certiorari rather than an appeal was the correct procedure. In the course of her judgment, Denham J. stated as follows:-
‘It is clear that it is only in very rare and limited circumstances indeed that judicial review is available in respect of an ORAC decision. The investigative procedure with which ORAC is tasked must be properly conducted but the flaw in that procedure that entitles an applicant to judicial review of an ORAC decision must be so fundamental as to deprive ORAC of jurisdiction. The Courts, the applicants themselves and the general public have a right to expect that no such fundamental flaw should ever occur in such an application. An applicant must demonstrate a clear and compelling case that an injustice has been done that is incapable of being remedied on appeal to the Refugee Appeals Tribunal. When such a clear and compelling case is not demonstrated, the applicant must avail himself of the now well established procedure that has been set up by the Oireachtas which provides for an appeal to the Tribunal.’ In my own judgment in the Diallo case I endeavoured to summarise the applicable criteria when I said at para. 21:- ‘It follows accordingly from this case law, that leave to apply for judicial review to quash a report and recommendation of the Commissioner should only be granted in exceptional cases and that to bring an application within the category of such cases it is necessary to advance substantial grounds for the existence of some fundamental flaw or illegality in the Commissioner’s report such that a rehearing upon appeal before the Tribunal will be inadequate to remedy it.’” 23. As the RAC had determined that the appeal in this matter should be based on the papers only, due to the delay in making an application for asylum on behalf of the applicant, it is an appropriate case in which to permit the applicant to proceed by way of judicial review of the RAC decision. The Substantive Issue 25. The applicant has submitted that in these circumstances, it was unsafe and unfair to rely entirely on the dismissal of the mother’s claim in disposing of the applicant’s claim. It was submitted that the RAC should have carried out a separate appraisal of the case from the infant’s point of view. 26. In this case, the applicant’s mother had confirmed at interview that her child’s fears were solely based on her own fears of returning to Nigeria. The following is the relevant section from the s. 11 interview:-
A. Yes, because of the religious crisis in Jos, they’re killing the women and children and this is why I left Nigeria. Q.8 Are your child’s fears solely based on your own fears in returning to Nigeria? A. Yes. Q.9 Who do you fear would harm her, is there anyone specifically in Nigeria you fear will deliberately harm her? A. No it is just that these things happen all the time, every so often in Nigeria, and she is only a child, a female child. Children can be easily harmed or get abused. There are always clashes happening between the Muslims and Christians and she is only a little girl and can get harmed. I would not want this for my child.” 28. The MM case involved the right to make separate representations and to have these considered when making an application for subsidiary protection after a failed application for refugee status. In the present case, a separate case was put forward on behalf of the infant applicant. It was the infant’s mother who expressly confirmed in the s. 11 interview that the child’s fears were solely based on her own fears in returning to Nigeria. Thus, it was the infant’s mother who provided the link between her case and the infant’s case. 29. In JO (A Minor) v. Minister for Justice, Equality and Law Reform [2009] IEHC 478, Cooke J. stated as follows in relation to the analysis of a claim put forward by a mother on behalf of her three month old child:-
10. It must be borne in mind that the function and duty of the Commissioner is to examine the application, to interview the applicant, to carry out any enquires that might be appropriate to verify the claim made and then to report on this to the Minister with the recommendation as to whether the applicant has or has not established the ingredients of refugee status. In circumstances where this three month old child’s claim is identical to and dependent upon the claim made by the mother, it is difficult to envisage what further investigation or enquiry might have been carried out into the child’s claim, nor has any been illustrated or suggested on her behalf.” 31. I am satisfied that the RAC was entitled to have regard to the mother’s application and the findings thereon when considering the applicant’s claim herein. In reality, an eight month old child cannot have fears of persecution; her fears had to be the same as her mother’s. The fact that the RAC and RAT had disbelieved the mother and had not accepted her complaints of past persecution, was something to which the RAC was entitled to have regard when considering the applicant’s claim to asylum. State Protection
34. The respondent submitted that the applicant’s fears involved non-State persecution. It was submitted that there is a presumption that a State can provide protection for its citizens, unless the applicant shows otherwise (see Ward v. Canada [1993] 2 SCR 689 and Horvath v. Secretary of State for the Home Department [2000] IMLR 15). 35. I am not satisfied that the Commissioner was entitled to make this finding in the absence of any evidence that State protection would in fact be available to the applicant should the need arise. This finding of the Commissioner cannot stand. Internal Relocation 37. The Commissioner found that the applicant was an eight month old infant who would have the support of her mother in Nigeria. She found that it would not be unduly harsh for the applicant to live with her mother in a part of Nigeria, such as Lagos, to avoid the problems in Jos. 38. The applicant submitted that the onus of proof in relation to the availability of internal relocation lay with the RAC. It was submitted that this onus of proof was not met by the Commissioner. The appropriate inquiry should have extended beyond the supposed safety of the applicant in a place of relocation, to the reasonableness of such suggestion in the light of the personal circumstances of the applicant. 39. The respondent submitted that the Commissioner had regard to the Regulations and noted that even where there is a well founded fear of persecution that a decision maker can look at whether an applicant could reasonably be expected to stay in a part of her country where there is not such fear. The Commissioner considered the individual circumstances of the applicant, namely, that she was an eight month old infant who would have the support of her mother in Nigeria and also the issues of safety and reasonableness. It was noted that the mother claimed that her daughter was at risk in Jos and that the issue of whether she could relocate to Lagos had been put to her at interview. It was not accepted that the applicant could not relocate to that city. 40. I am satisfied that the issue of internal relocation had been canvassed with the applicant’s mother at interview. The Commissioner’s finding that the applicant’s mother had not provided sufficient evidence to indicate that her daughter would not be safe if she were to be with her in an area away from Jos, such as Lagos, was a finding that was reasonably open to the Commissioner in the circumstances. This finding should not be disturbed. Failure to Apply a Forward Looking Test
‘A lack of credibility on the part of the applicant in relation to some, but not all, past events, cannot foreclose or obviate the necessity to consider whether, if returned, it is likely that the applicant would suffer Convention persecution.’”
‘[17] ...The sole fact that particular facts or events relied upon as evidence of past persecution have been disbelieved will not necessarily relieve the administrative decision-maker of the obligation to consider whether, nevertheless, there is a risk of future persecution of the type alleged in the event of repatriation. In practical terms, however, the precise impact of the finding of lack of credibility in that regard upon the evaluation of the risk of future persecution must necessarily depend upon the nature and extent of the findings which reject the credibility of the first stage. This is because the obligation to consider the risk of future persecution must have a basis in some elements of the applicant's story which can be accepted as possibly being true. The obligation to consider the need for 'reasonable speculation' is not an invitation or pretext for gratuitous speculation: it must have some basis in, and connection to, the apparent circumstances of the applicant.’”
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