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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A (a minor) -v- Refugee Appeals Tribunal & ors [2015] IEHC 346 (04 June 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H346.html
Cite as: [2015] IEHC 346
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Judgment
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Neutral Citation [2015] IEHC 346 THE HIGH COURT JUDICIAL REVIEW [2011 No. 390 J.R.] BETWEEN A. (SUING BY HER MOTHER AND NEXT FRIEND F.A) (NIGERIA/SIERRA LEONE) APPLICANT AND
REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND IRELAND RESPONDENTS JUDGMENT of Mr. Justice Eagar delivered on the 4th day of June, 2015 1. This is a telescoped application for an order of certiorari quashing the decision of the first named Respondent to affirm the recommendation of the Refugee Applications Commissioner and an order remitting the appeal of the Applicant for determination de novo by a separate member of the Refugee Appeals Tribunal. 2. The notice of motion sought an order of certiorari by way of an application for judicial review quashing the decision of the first named Respondent to affirm the recommendation of the Refugee Applications Commissioner and an order remitting the appeal of the Applicant for a determination de novo by a separate member of the Refugee Appeals Tribunal and a number of ancillary reliefs relating to an injunction and an extension of time. 3. The grounds upon which reliefs were sought were as follows:
2) That the decision of the Tribunal was wholly lacking in cogency and the claim of the Applicant was prejudiced. 3) That the Tribunal failed to make any clear findings on significant elements of the evidence and including the evidence of past persecution. 4) That the Tribunal erred in law in failing to reasonably consider the country of origin information reports and the submissions contained in the notice of appeal. 5) The Tribunal erred in law in making a finding in respect of internal relocation without making any assessment or without any regard to the UNHCR guidelines on internal relocation. 6) The Tribunal erred in law in taking into account matters irrelevant to its determination and/or fails to take into account relevant considerations. 7) The Tribunal erred in law in failing to lawfully speculate on the likelihood of exposure of the Applicant to persecutory risk on refoulement to Nigeria 8) The Tribunal failed to discharge its duties in arriving at a decision in respect to the principle of non refoulement. 9) Having determined that it would also decide upon the appeal of the Applicant as if she is a national of Sierra Leone, the Tribunal identified a litany of risks to which a person of the Applicant’s age and gender would be exposed but thereafter failed to consider or otherwise speculate as to whether the Applicant is in fact exposed to persecution in Sierra Leone. 10) Having bound itself to making a decision with regard to the best interests of the child no such regard is apparent. 5. The Applicant was born in Ireland on the 17th February 2009. Her father is a national of Nigeria. An application was submitted on behalf of her daughter on the 23rd October 2009. The ASY1 form was completed by the Applicant’s mother on the 23rd October 2009 and an application for refugee status questionnaire was completed on the 3rd November 2009. 6. The Applicant’s mother was interviewed on behalf of the Applicant under section 11 of the Act of 1996 on the 6th November 2009 and a report pursuant to s. 13 (1) of the Refugee Act 1996 (as amended) dated the 11th November 2009 indicated that the Refugee Applications Commissioner was satisfied that the Applicant’s mother did not establish a well-founded fear of persecution as required by section 2 of the Act of 1996. An appeal was lodged against that decision and the first named Respondent heard an appeal on the 28th April 2009 and on the 27th May 2009 affirmed the recommendation of the Refugee Applications Commissioner. 7. In relation to the minor Applicant, A, the Applicant’s mother attended the section 11 interview on behalf of her daughter and in the report of the Refugee Applications Commissioner the issue of state protection was considered by the Refugee Applications Commissioner but it recommended that the Applicant had not established a well-founded fear of persecution. The appeal of the minor Applicant was heard on the 16th March 2011 by way of an oral hearing and the decision of the first named Respondent was made on the 6th April 2011 and affirmed the recommendation of the Refugee Applications Commissioner. 8. No application was made by the minor Applicant to have her appeal heard by a separate member of the Refugee Appeals Tribunal. 9. These proceedings were commenced on the 13th May 2011. The statement of opposition of the Respondents did not raise any issues as to the necessary extension of time and in those circumstances the Court formally grants an extension of time in respect of this application. Decision of the first named Respondent 11. The first named Respondent then recited the details of the Applicant’s mother’s history. The Applicant’s mother attended for a section 11 interview on the 6th November 2009. She confirmed that her nationality is that of a person from Sierra Leone, however, her father’s nationality is Nigerian. The Applicant’s mother was taken to Nigeria when she was two years of age. She stated that if she went to Nigeria her aunt would kill her and if they killed her the same would happen to the Applicant in this case. She claims that perhaps her daughter will end up in the same position she did, namely being involved in prostitution. The Applicant’s mother stated this in the section 11 interview. The Applicant’s mother stated that she fears for her daughter in Nigeria and that the person she fears is her aunt. She claims she and her twin sister were working for her aunt from the time they were 10 years of age. Her aunt lives in Ondo. Her aunt does not know she has a daughter. 12. The Applicant’s mother was asked why her aunt would be able to find her if she moved to another part of Nigeria, for example Abuja. She claimed that people from Abuja could see her and tell her aunt that she was in Abuja. It was put to the Applicant that Nigeria is a large country with a large population (approximately 149 million). It was put to the Applicant that the UK Home Office states that internal relocation is almost always an option. The Applicant’s mother then stated that people who used to sleep with her would come from Abuja, Kaduna, Ondo and other places and perhaps they would know her because they had slept with her and they could give her aunt the information that they had seen her there with her baby. 13. The Applicant’s mother claimed that her twin sister was killed by her aunt. The Applicant’s mother was asked why her daughter would not be able to get protection from the authorities. She claimed that they could not help anyone and they did not help her at the time her twin sister died. 14. It was put to the Applicant’s mother that there a number of woman’s organisations like WACRL and BAOBAB, who help women and children with problems with Nigeria. The Applicant’s mother said this was not an option. 15. The most important thing the Applicant’s mother stated is her grave fear that there is nowhere they can stay. She said “They all know me. I have slept with people from all over the country. They can go and tell my aunt where I am and even if the police come they can bribe them”. The Applicant’s mother claimed that even when she reported it the police came and slept with her. 16. The Applicant’s mother was asked why her daughter would not be safe in Sierra Leone. The Applicant’s mother said she was born in Sierra Leone but she does not know any of her relatives there. She did not have any problems in Sierra Leone because she left when she was two years of age. The Applicant’s mother stated that she does not know what is going on in Sierra Leone now but she does know that her four brothers died in Sierra Leone. She does not have a problem in Sierra Leone but she does not know what the situation is. 17. The first named Respondent had dealt with the mother’s claim and the decision of the first named Respondent was attached to the papers. The decision of the first named Respondent in respect of the Applicant’s mother’s case was found on the basis that she did not have a well-founded fear of persecution in Nigeria on the basis that she did not show that there was no State protection available to her in respect of the harm she feared, namely being forced into trafficking and prostitution. 18. The Applicant’s mother claimed that she could not go back to Nigeria because she is not really from Nigeria and she didn’t know the groups that the presenting officer referred to that were in a position to provide assistance to women in her position. 19. Submissions on behalf of the Applicant were that
(b) That the Applicants will have been overcome over a long period of time and was a vulnerable woman and a victim of trafficking. (c) It was submitted that the question for the Refugee Appeals Tribunals was whether and to what extent the State could offer protection in respect of what might happen on her return. (d) It was submitted that the operational guidance had to be read in context and in conjunction with other country of origin information provided by the UK Home Office. BAOBOB had stated itself it could not support all women and that it was grossly under funded. (e) It was submitted that while Nigeria had good intentions, support could not be guaranteed and in relation to Sierra Leone it was submitted that the position there was worse than in Nigeria. Reference was made to a Daily Fact Finding mission and report in 2004 which referred inter alia to the fact that NAPTIP a government organisation set up to help people in the position the Applicant found herself in, has not been followed up by sufficient government funds. It can be difficult for NAPTIP to provide protection for all victims of trafficking. 21. In relation to the mother’s claim the first named Respondent noted the law prohibiting all forms of trafficking in Nigeria and also noted that the government had established NAPTIP the National Agency for the Prohibition of Trafficking of Persons and other related matters. It was also noted that NAPTIP assisted victims of trafficking either through the provision of shelter or by connecting victims to non governmental or international organisations for shelter, counselling and reintegration assistance. Quality of care however remains compromised by inadequate funding. NAPTIP continues to operate seven shelters throughout the country in Lagos, Abuja, Kano, Sokoto, Enugu, Royal Uyo and Benin City. The Applicant had responded to the first named Respondent that she could not move to a number of areas within Nigeria because she did not have anyone there. The Tribunal Member points out that the Applicant has nobody here in this country, no family and no cultural connections. 22. The first named Respondent concluded that the Applicant did not satisfy the requisite criteria of the convention in that she does not show a failure of state protection. The first named Respondent said there were a great number of support mechanisms in place. The first named Respondent also noted that refugee law was formulated to serve as a backup to the protection one expects from the state of which an individual is a national. She quoted from the decision of Attorney General v. Ward [1993] 2 SCR 689, a decision in the Supreme Court of Canada where the Supreme Court of Canada addressed the issue of how, in a practical sense, a refugee claimant proves a state’s inability to protect its nationals. The view taken was that “clear and convincing” confirmation of a state’s inability to protect must be provided and absent some evidence, a nation should be presumed capable of protecting their citizens. She concluded her decision on the Applicant’s mother as follows:
24. Counsel for the Applicant criticised the decision of the first named Respondent to abide by the fundamental duty to hear the application of the child de novo. 25. The finding with regard to internal relocation was made without even a perfunctory regard to the personal attributes of the Applicant and her mother. 26. He quoted from Clarke J. in a case of Idiakheua v. The Minister for Justice Equality and Law Reform and Another [2005] IEHC 150 where he set out the test for state protection as follows:
27. Counsel for the Respondents complained that a number of the grounds contained in the statement of grounds were pleaded in a vague and generic fashion and were not supported by the contents of the grounding affidavit. She also submitted that the case made by the Applicant’s counsel in their written legal submissions dated the 28th February 2013 bore little or no resemblance to the grounds as pleaded and significantly there are no grounds impugning the finding that state protection was available to the Applicant in Nigeria. She submitted that in relation to the Applicant’s complaint that the decision was prejudged she submitted that there was no evidence before the Court whatsoever that the Applicant’s legal representatives either requested a different Tribunal Member or requested that the Tribunal Member decide the application without reference to the mother’s case. She also submitted that no complaint in relation to state protection was pleaded in the statement of grounds. She also submitted that the Tribunal Member clearly considered the application de novo and carried out a full oral appeal re-examining of the issue of state protection in the context of the claim made then. She also submitted that the two applications, that of the mother and of the Applicant, were identical and no separate or independent ground for claiming asylum was put forward on behalf of the daughter. 28. In relation to internal relocation counsel for the Respondent submitted that this ground did not arise for consideration on the basis that the Tribunal Member did not reach an internal flight decision in the manner understood by the Convention. She quoted from James Hathaway in relation to the decision of Heald J in Rajudeen v. The Minister for Environment and Immigration [1985] 55 NR at 129:
Decision 31. In relation to the issue of the pleadings I find that the complaints in relation to the written submissions of the Applicant are not sufficiently imprecise to warrant rejecting the Applicant’s case. The Respondents replied to the written submissions with detailed written submissions and then made oral submissions on the points which were allegedly imprecisely pleaded. 32. I am satisfied however that in this case that the means by which the decision has been reached in this case was that the minor Applicant had been afforded fair procedures, the first named Respondent has acted reasonably and has not acted in excess of jurisdiction. 33. I am satisfied to refuse the application for judicial review in this matter and refuse an order of certiorari as requested in the notice of motion. |