Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> OJU (a minor) & anor -v- Minister for Justice Equality & Law Reform & ors [2015] IEHC 412 (06 July 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H412.html
Cite as: [2015] IEHC 412
[New search] [Help]
Judgment
| ||||||||||||||||
Neutral Citation [2015] IEHC 412 THE HIGH COURT JUDICIAL REVIEW [2010/636JR] BETWEEN O. J. U. (AN INFANT SUING BY HER MOTHER) AND NEXT FRIEND M. U. APPLICANT AND
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE REFUGEE APPLICATIONS COMMISSIONER RESPONDENTS JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 6th day of July, 2015 1. This is a telescoped application in respect of a decision of the Refugee Applications Commissioner declining to recommend asylum for the infant applicant. 2. The applicant was born in the State on 25th July, 2008, and applied for asylum in February 2010. The applicant’s mother, at an earlier stage, sought asylum based on a fear that village elders would force her to subject her daughter (not the applicant) to female genital mutilation in Nigeria. The applicant’s mother said that she came from a village in Edo State comprising less than twenty-five houses. By decision dated the 21st March, 2006, a s. 13 report declined to recommend refugee status on the basis of lack of credibility, availability of state protection and the possibility of internal relocation. With respect to internal relocation the s. 13 report describes as implausible the prospect that persons from the applicant’s mother’s village would be able to find the applicant’s mother in a country of 137 million people. 3. In a s. 13 report dated 26th April, 2010, the Commissioner’s authorised official recommended that the applicant not be given a declaration of refugee status on the basis that state protection would be available to the applicant and that internal relocation would be a viable option for her. Application for leave to seek judicial review was commenced by motion on 18th May, 2010. 4. The s. 13 report quotes from Article 2 of the European Communities (Eligibility for Protection) Regulations 2006 which addresses the existence of state protection. The decision maker concludes that such protection is available in the following terms:-
It was again put to the applicants mother about relocation to Lagos given that the population of Lagos is over 11 million coupled with the fact that she (the applicant’s mother) left her country approximately 5 years ago, why would these families search for you now in a country of 150 million people and she responded “It is not that they would be looking for me, but people move around all the time. No matter what State I go to, there is a chance. I d not want to live in fear. (sic) There is always a chance.” (S11 interview Pg.5). The applicant’s mother has not offered sufficient reason or evidence that internal relocation is not a viable option for the applicant and her family or that the applicant would be targeted if she returned to a different area in Nigeria.”
10. It is insufficient for an applicant in judicial review to say that the requirements of article 5 (a) of the 2006 Regulations are breached because there was no assessment of relevant facts as they relate to the country of origin at the time of taking a decision. Significantly detailed complaints as to what facts were not considered as well as submissions as to the effect of the alleged failure would be required to ground such application. If the applicant had produced material to suggest that no state protection is available for children who might be subject to F.G.M. then the absence of an identifiable source for the claim by the decision maker that such protection is available might assist with an argument that an error as to jurisdiction had occurred. The decision on state protection may lack detail but it does not lack jurisdiction. If this conclusion is wrong, I am satisfied that the error is not sufficiently grave to warrant intervention at this stage of the asylum process. 11. Before considering the next allegation of the illegality in the decision reference should be made to the conclusion by the authorised officials as follows:-
13. Thus, the next allegation which is that article 5 (1) (c) of the 2006 regulations requiring the personal circumstances of the applicant to be considered must be rejected. If there was a failure to consider the personal circumstances of the applicant it had no impact on the decision taken on behalf of the Commissioner. It should be recalled that Regulation 5(1)(c) provides:-
(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…”
15. In any event the applicant’s personal circumstances were actively considered. The decision refers to her as a 20 month old girl born in Ireland of Nigerian nationality. The decision expressly refers to the “linked files” of her mother and her sisters where full details of the mother’s narrative concerning fear of F.G.M. are set out. If some element of the applicant’s personal circumstances was not considered, it has not been described in the pleadings, in written submissions or in oral submissions. I find that no breach of article 5 (1) (c) of the 2006 regulations has occurred. 16. The applicant maintains that the failure to consider the contents of a compact disk submitted to the Commissioner demonstrates the absence of an assessment of the applicants personal circumstances as required by article 5 (1) (c). Even if it were the case that the disk had not been considered the failure to consider the disk did not have any impact on the decision taken as to whether the stated fears amount to persecution. I emphasise that the decision-maker accepted this part of the claim made. I cannot find errors as to jurisdiction in these complaints much less grave errors. 17. It is said in relation to the plea at ground “F” of the statement grounding application (which alleged breach of the procedures directive or the qualifications directive without specifying how such breach occurred) that, article 8(2)(a) of the procedures directive provides that all “applications are examined and decisions are taken individually, objectively and impartially”. The applicant complains that the claim was not assessed objectively although no explanation is given in any way for this allegation. It is said that an objective analysis necessitated consultation of country information regarding the availability or otherwise of state protection and that the application of laws and effectiveness of state protection should have been considered by reference to up to date and impartial country of origin information. 18. A claim such as this could not succeed without much greater detail either in the pleading, the written submissions or in oral submissions. No explanation has been offered to the court as to how it is alleged that the applicant’s claim was not assessed objectively. Neither was any explanation offered as to what country of origin information ought to have been considered which, had it been consulted, might have resulted in a different outcome. This claim as to illegality is not made out. The internal relocation decision:
22. In my view none of these allegations is borne out. Whilst it is true that the analysis as to internal relocation is not rich in detail it seems to me that the complaint must be supported by reference to the personal circumstances which ought to have been considered together with an argument that had the identified personal circumstances been considered a different internal relocation decision might have been reached. The same can be said as to the charge that the reasonableness of asking persons to relocate was not considered. An applicant in a case such as this must show how it would be unreasonable to expect the applicant to internally relocate. As to the suggestion that the text quoted above indicates that the burden of proof was placed upon the applicant, this seems to me to misinterpret what has happened. The decision- maker has recorded statements by the applicant as to why relocation was not an option and when these statements were found wanting it was concluded that internal relocation was a solution to the stated fear. In my view no error as to jurisdiction has occurred. In so far as this conclusion may be wrong, I alternatively find that no error as to jurisdiction sufficiently grave to warrant intervention at this stage of the asylum process has been established. 23. I reject the application for judicial review of the decision of the Refugee Applications Commissioner. |