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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> F.F. -v- The Minister for Justice & Ors [2015] IEHC 245 (17 April 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H245.html
Cite as: [2015] IEHC 245
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Judgment
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Neutral Citation: [2015] IEHC 245 THE HIGH COURT JUDICIAL REVIEW [2010 No. 214 J.R.] BETWEEN F. F. APPLICANT AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENT JUDGMENT of Mr. Justice McDermott delivered on the 17th day of April, 2015 1. The applicant seeks an order of certiorari quashing the decision of the respondent refusing his application for subsidiary protection dated 10th December, 2009, and an order quashing the respondent’s decision to issue a deportation order against the applicant dated 28th January, 2010. The case was heard on a telescoped basis. Background 3. The applicant arrived in Ireland on 1st September, 2005, and applied for refugee status the following day. He received negative recommendations from both the office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal. He applied for subsidiary protection on 22nd June, 2006, which was refused on 9th December, 2009. Application for Refugee Status 5. In his application he states that he left Cameroon on 5th February, 1998, and travelled to Mali where he was granted refugee status under the terms of the Geneva Convention. The applicant’s claim for refugee status in Ireland was based upon a number of events said to have happened in Mali, as outlined above. 6. The applicant claimed that when he attempted to claim travel documents in accordance with his status as a refugee to attend the Thirty Six Session of the Rights of Women and Children in Strasburg organised by the International Institute of Human Rights, the immigration police demanded money before providing the necessary travel documents. The applicant paid the bribe and the travel documents were provided. He then complained about this to a friend who conveyed the complaint to the Ministry of Police Affairs. 7. On 27th July, 2005, while attempting to leave Mali, the applicant was arrested at the airport by the immigration police concerning a complaint that he had unlawfully defamed the police and the Commission National Chargé des Refugies (CNCR). His belongings were searched and a number of videos concerning his investigation into FGM in Mali were confiscated. He was then allowed to proceed to Strasburg. 8. The applicant somehow retained one of the videos concerning this investigation which he presented at the Conference and as a result of which he claimed to have been threatened by the Malian authorities by email and phone. 9. As a result the applicant believed that he had “problems” with the immigration police, the Refugee Board in Mali (CNCR) and “some high Malian authorities”. 10. The other reasons which he offered for seeking asylum in Ireland were that Ireland is an English speaking country where his children could continue their education, he wished to register at Trinity College Dublin at the Department of Theology under a master’s student programme and he had relatives in Ireland. 11. In his s. 11 interview the applicant claimed that he was stateless, but that he had been born in Cameroon. He was a graduate of the University of Lagos and worked as a teacher and journalist in Cameroon. From 2000 he was Director of Communications and Foreign Affairs for Cameroon Aid Action (an NGO). In the interview he outlined how he fled Cameroon and obtained asylum in Nigeria. He was subsequently granted asylum in Mali where he lived for three years from 2002 prior to travelling to France for the Conference and on to Ireland on his Malian 1951 Geneva Convention travel documents. He maintained that he faced two difficulties in Mali, firstly, a problem with the police arising out of his allegation and secondly, a problem with the authorities because of his exposure of FGM. Section 13(1) Report Notice of Appeal Tribunal Decision
15. These determinations were not challenged by way of judicial review. Application for Subsidiary Protection
It is the state authorities he fears in Cameroon and Mali and the UNHCR and police in Nigeria are unable to protect him and he does not believe that he would be accepted back in either Cameroon, Nigeria or Mali in any event.” 18. The application for leave to remain was considered under s. 3(6) of the Immigration Act 1999 (as amended) and s. 5 of the Refugee Act 1996. Refoulement was not found to an issue in either Nigeria or Mali. The case was also considered under s. 4 of the Criminal Justice (United Nations Convention against Torture) Act 2000, and based on the information provided at that time, a deportation order was made. The Challenge 20. In the determination of the subsidiary protection application, the officials noted that the applicant’s nationality was “Cameroon (has refugee status in Mali and in Nigeria)”. It was also noted that the applicant claimed fear of serious harm in Cameroon because of the potential imposition of the “death penalty or execution” and “torture or inhuman or degrading treatment or punishment of an applicant in the country of origin”. The determination sets out the main issues to be examined in the application, including:-
In the light of the above, I will not be examining the applicant’s claim of serious harm in respect of his fears of being returned to Cameroon.” 21. The following provisions of the European Community (Eligibility for Protection) Regulations 2006, which give effect to Council Directive 2004/83/EC (the Qualification Directive) are relevant:-
“person eligible for subsidiary protection” means a person— (a) who is not a national of a Member State, (b) who does not qualify as a refugee, (c) in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, would face a real risk of suffering serious harm as defined in these regulations, … (e) is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country… “protection against persecution or serious harm” shall be regarded as being generally provided where reasonable steps are taken by a state or parties or organisations, including international organisations, controlling a state or a substantial part of the territory of that state to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, where the applicant has access to such protection… “serious harm” consists of— (a) death penalty or execution, (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin, or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. 4(3) In determining whether a person is eligible for subsidiary protection, the Minister— (a) shall take into consideration, in addition to matters mentioned in Regulation 5, any particulars furnished by the applicant under paragraph (1)(b); and (b) may take into consideration—
(ii) such other information relevant to the application as is within the Minister’s knowledge… (a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application for protection, including laws and regulations of the country of origin and the manner in which they are applied; (b) the relevant statements and documentation presented by the protection applicant including information on whether he or she has been or may be subject to persecution or serious harm; (c) the individual position and personal circumstances of the protection applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the protection applicant's activities since leaving his or her country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for protection as a refugee or a person eligible for subsidiary protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he or she could assert citizenship.”
24. It is clear that the purpose of the 2006 Regulations and the Directive is to provide international protection of a complementary kind within the European Union. This was considered by Cooke J. in W.A. (DRC) v. Minister for Justice, Equality and Law Reform [2012] IEHC 251 at para. 34:-
‘The need for international protection is predicated on the breakdown of national protection - a lack of basic guarantees which states normally extend to their citizens.’ The same point is made by Hathaway: ‘Because refugee law is intended to meet the needs of only those who have no alternative to seeking international protection, primary recourse should always be had to one’s own state.’ (The Law of Refugee Status: Butterworth’s 1991, p. 133).” 26. The respondent dealt with the applicant as a “stateless” person who had been habitually resident in Mali prior to his coming to Ireland and Nigeria before going to Mali. He had been granted refugee status in both countries, but had not succeeded in establishing substantial grounds for believing that he would, if returned to Mali or Nigeria, face a real risk of suffering serious harm. 27. A similar situation was considered in the context of an application for a declaration of refugee status in K (T.B.) v. Refugee Appeals Tribunal and Minister for Justice [2010] IEHC 438. A question arose as to whether the applicant ought to be considered as a refugee who had fled persecution in Bhutan, his country of nationality, or as the Tribunal concluded, as a stateless person who was outside the last country of his habitual residence, namely Nepal, and who had failed to establish any basis for fearing persecution if returned to Nepal. It was alleged that the Tribunal acted in breach of the Regulations by failing to engage with the claim that he was a Bhutanese national as opposed to being stateless. The Tribunal assessed the claim on the basis of his former habitual residence in Nepal. The court rejected the submission that the Tribunal’s conclusion that the applicant was stateless was irrational. Cooke J. stated:-
29. In addition, the applicant obtained a declaration of refugee status in Mali. If recognised as a refugee under the Geneva Convention by another contracting state, he could not obtain a declaration of refugee status in Ireland under s. 17(4) of the Refugee Act 1996 (as amended) unless the reason for leaving or not returning to that state or for seeking a declaration in Ireland related to a fear of persecution in that state. His claim in respect of Mali was rejected. The basis upon which he could then apply for subsidiary protection was as a failed asylum seeker. Clearly, he could not have obtained a declaration of refugee status based upon a fear of persecution in Cameroon, because he already had refugee status in Nigeria and Mali and had based his application on that fact. I am not satisfied that the purpose of the Directive and the Regulations is served by an interpretation which requires the respondent to consider the applicant’s position in Cameroon when determining this complementary form of international protection, when the evidence demonstrates that he has refugee status in Mali and Nigeria. It is entirely appropriate and logical that this complementary form of international protection should be considered in the context of his failed application for asylum in respect of Mali and Nigeria. The object of providing subsidiary protection is to meet the requirements of those who have no alternative to seeking international protection and cannot avail of the protection of their country of origin, which for a stateless person means their country of former habitual residence, in this case Mali or Nigeria. It is contrary to the purpose of the Regulations, the Directive, the Refugee Act 1996, as amended, and the Geneva Convention to provide a further form of international protection to a person who has the benefit of refugee status in another country. To adopt the applicant’s submissions would be to permit the applicant to circumvent s. 17(4) and to avoid its clear meaning and purpose. It would allow him to disavow the factual and legal basis upon which his application for refugee status was considered and rejected in Ireland. 30. A reinvention of the applicant’s claim is apparent from the affidavit grounding this application which invites the court to determine that he has no right to reside in Nigeria or Mali and/or no longer has the benefit of refugee status in either country. There is no affidavit of laws in support of this new case. In any event, none of this material was placed before the decision maker and could not result in the quashing of the decision. The applicant was bound to produce and advance all relevant material at the time of the making of the decision. I am satisfied that the court should not consider this material as offering a proper basis upon which to challenge the subsidiary protection or deportation decisions by way of judicial review. 31. For the above reasons, I am satisfied that the respondent in this case was not acting in breach of his statutory duty as claimed. It was lawful and appropriate for the decision maker, having regard to the history of the case and the reality of the applicant’s circumstances, as advanced by him, to accept the alleged risk of harm to the applicant in Cameroon, and concentrate on his alleged fear of being returned to Nigeria or Mali where he had been granted refugee status. All relevant matters were considered in accordance with the Regulations. 32. Even if the applicant’s submission were correct and the respondent should have considered whether if returned to Cameroon, he would face a real risk of serious harm, it is clear that this proposition was accepted for the purpose of the determination and that there was never any intention of returning him to Cameroon. I am not satisfied that any further consideration of this accepted risk could have advanced the applicant’s case for subsidiary protection. The only relevant countries to which he could be returned were Mali and Nigeria, in both of which the applicant had refugee status and rights to reside. Thus, if the court considered that the applicant’s grounds in this regard had any merit, I would exercise my discretion against granting any relief by way of certiorari. Therefore, I am satisfied that the applicant has not demonstrated any substantial grounds upon which to grant leave to apply for judicial review of the subsidiary protection decision or the deportation order. Delay 34. In the circumstances the challenge to the deportation order also fails and its execution is a matter for the respondent. |