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URL: http://www.bailii.org/ie/cases/IEHC/2015/H77.html
Cite as: [2015] IEHC 77
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Judgment
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Neutral Citation: [2015] IEHC 77 THE HIGH COURT JUDICIAL REVIEW [2010 No. 1391 J.R.] BETWEEN C.I.I.K (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND P.K) (NIGERIA) APPLICANT AND
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM THE REFUGEE APPEALS TRIBUNAL, ATTORNEY GENERAL, IRELAND RESPONDENTS JUDGMENT of Mr. Justice Eagar delivered on the 11th day of February 2015 1. This is a telescoped application for an order of certiorari quashing the decision of the second named Respondent to affirm the decision of the Refugee Applications Commissioner that the Applicant not be declared a refugee and seeking an order remitting the appeal of the Applicant for determination de novo by a separate member of the Refugee Appeals Tribunal. 2. The Applicant was born on the 3rd February 2006 in a maternity hospital in Ireland and is a citizen of Nigeria. The mother of the Applicant completed an ASY1 form on the 27th April 2008 and completed the questionnaire on the 8th May 2006. The Refugee Applications Commissioner interviewed the mother of the Applicant on the 30th June 2006 and on the 31st July 2009 the Refugee Applications Commissioner recommended that the Applicant had not established a well founded fear of persecution as required by s.2 of the Refugee Act 1996 (as amended) and should not be declared a refugee. The Applicant’s mother appealed this decision and on the 2nd September 2010 the second named Respondent heard the appeal. On the 4th October 2010 the second named Respondent affirmed the recommendation of the Refugee Applications Commissioner in relation to the question of refugee status. The Applicant’s claim 4. The grandmother made many attempts to do this but it did not go ahead as the mother managed to take the older daughter away. The husband told his mother he would do it by the time they were five. She thinks he did this to get the mother-in-law to back off. The husband’s attitude now because they are here in Ireland is that it would not be done but if he is in Nigeria she does not know what he would do. Her husband was a lawyer and used to represent members of the Movement for the Actualization of the Sovereign State of Biafra (MASSOB). He also became a member of MASSOB and these difficulties lead to them leaving the country. The only issue to be decided by the Tribunal was the issue of future fear regarding the Applicant in relation to forcible genital mutilation. It was put to the mother of the Applicant that her mother in law was now dead and that she had died last year. She further said it was the mother’s dying wish that her children would do it. It was also put to her that she had resisted it in the case of her eldest daughter. The Country of Origin Information in relation to relocation was put to her and she said she could not. The mother had made a claim for refugee status on the basis of her membership of MASSOB and her mother’s claim was found not to be credible. The analysis by the second named Respondent 6. The second named Respondent also indicated that there were two possible scenarios. One was that it was an attempt by the Applicant’s mother to enhance her claim by showing that the risk of circumcision is great as there is a chance that her husband will sway and have the procedure performed. In doing this she is overlooking the fact that the convention cannot be invoked where persons willingly engage or acquiesce in what would be deemed a persecutory act. Alternatively this is entirely true which it has to be said is the more likely case scenario because if there was this risk from her husband she would not seek to remain with him in such circumstances while at the same time seeking assistance for her daughter to prevent such harm occurring. Of course the Convention invocation in relation to engaging or acquiescing in conduct could not apply to the Applicant as she is an 8 year old child. 7. At the hearing of the appeal she is saying that the husband’s attitude now because they are here in Ireland is that it would not be done but if she is in Nigeria she does not know what he would do. The second named Respondent said that this was not credible evidence. When the issue of the mother-in-law being dead was raised the Applicant’s mother maintained that she would have got someone else to do it and that this was an attempt to give added substance to a claim now and was not credible. The second named Respondent then recited the mother’s claim and confirmed the mother’s claim was found not to be credible: “As this claim is based on her claim it is not considered credible either. The FGM aspect of this claim is not deemed credible either”. Submissions 9. Counsel also cited the case of M.A.M.A v. The Refugee Appeals Tribunal and the Minister for Justice Equality and Law Reform, Attorney General, Ireland [2011] IEHC 147. In the case Cooke J cited the decision of Peart J. in DaSilveira v. Refugee Appeals Tribunal [2004] IEHC 436:-
11. I have considered the findings of credibility in accordance with the judgment of Cook J. in I.R. v. Minister for Justice Equality and Law Reform& Ors [2009] IEHC 353. 12. I am satisfied that the decision on credibility was one which was appropriately made by the administrative decision maker and in those circumstances I am refusing to grant the relief sought and dismiss the application for certiorari. |
