O (AB) and Others v Min for Justice & Garda National Immigration Bureau

• Jurisdiction: Ireland
• Judge: MR, JUSTICE BIRMINGHAM
• Judgment Date: 27 June 2008
• Neutral Citation: [2008] IEHC 191
• Court: High Court
• Date: 27 June 2008

O (AB) & Ors v Min for Justice & Garda National Immigration Bureau

BETWEEN

A. B. O., M. O. AND M. J. O.

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, and THE GARDA NATIONAL IMMIGRATION BUREAU

RESPONDENTS

[2008] IEHC 191

[322 JR/2008]

THE HIGH COURT

ASYLUM:

Immigration

Leave to apply for judicial review - Standard of review to be applied - Whether heightened level of scrutiny required - Subsidiary protection - Whether material error on face of decision - Refusal to grant subsidiary protection based on credibility and internal relocation issues - Whether decision rational and fairly supported by country of origin information - Whether substantial grounds for contending that decision invalid and ought to be quashed - Canada (Attorney General) v Ward [1993] 2 SCR 689, DK v Refugee Appeals Tribunal [2006] 3 IR 368 and N v Minister for Justice [2008] IEHC 107 (Unrep, Charleton J, 24/4/2008) followed - Refugee Act 1996 (No 17) s 3 - Relief refused (2008/322JR - Birmingham J - 27/6/2008) [2008] IEHC 191

O(AB) v Minister for Justice

Facts: The applicants from Nigeria sought to judicially review a decision of the respondent to refuse subsidiary protection. The Minister had refused the application on the basis that State protection was available, which the applicants sought to contest along with the adverse determination as to the credibility of the applicants. The standard for consideration was asserted by the applicant to equate to the standard required at the RAT stage of the asylum process. Heightened or anxious scrutiny was alleged to be the appropriate standard for judicial review.

Held by Birmingham J. that the decision reached as to internal relocation was not an irrational one. The Minister was entitled to have regard to the views of the RAT and ORAC as to credibility. The applicants here were claiming subsidiary protection on the basis of the threat of non State actors and previous caselaw had determined such a situation. The application for leave would be refused.

Reporter: E.F.

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)(A)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)(B)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)(C)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)(D)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)(E)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(2)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)

N,E & O v MIN FOR JUSTICE UNREP HIGH CHARLETON 24.4.2008 2008 IEHC 107

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP HIGH CLARKE 9.11.2005 2005/35/7364

DADA v MIN FOR JUSTICE UNREP HIGH O'NEILL 3.5.2006 2006/14/2921

REFUGEE ACT 1996

EEC DIR 2005/85

EEC DIR 2004/83

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

REFUGEE ACT 1996 S5

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000

CANADA (AG) v WARD 1993 2 SCR 689

KVARATSKHELIA v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2006 3 IR 368

LLANAJ v REFUGEE APPEALS TRIBUNAL (SHIVNEN) UNREP HIGH FEENEY 9.2.2007 2007/35/7167

O.A.A. v MIN FOR JUSTICE UNREP HIGH FEENEY 9.2.2007 2007 IEHC 169

ALI v MIN FOR JUSTICE UNREP HIGH PEART 26.5.2004 2004/2/244

1 MR, JUSTICE BIRMINGHAM delivered on the 27th day of June 2008 .

2 1. The first named applicant is a national of Nigeria, a member of the Yoruba tribe and a Pentecostal Christian. She is seeking leave to apply for judicial review of the decision of the Minister for Justice, Equality and Law Reform ("the Minister") to refuse her application for subsidiary protection. The second and third named applicants are the first named applicant's daughter and son respectively.

3 2. The Minister's decision to refuse the first named applicant's request for subsidiary protection gave rise to two challenges, the first to the Minister's decision to refuse subsidiary protection, and the second to the Minister's ensuing decision to make a deportation order in respect of the applicants, which followed from the earlier decision to refuse subsidiary protection. The applicants are seeking leave to apply for judicial review of these decisions, with a view to claiming the following reliefs:

4 (i) An Order of Certiorari quashing the decision of the Minister not to grant the first named applicant subsidiary protection, dated 11 ^th December, 2007;

5 (ii) An Order of Certiorari quashing the decision of the Minister to make deportation orders in respect of the applicants, dated 5 ^th March, 2008;

6 (iii) An Order of Mandamus directing the Minister to consider the first named applicant's request for subsidiary protection dated 30 ^th August, 2007.

7 3. As a preliminary matter, counsel for the applicants argues that if the Minister's consideration of the first named applicant's claim for subsidiary protection was not valid, then it follows that the ensuing decision to make a deportation order will necessarily fall. Counsel for the respondents takes no issue with this argument, and I see much force in it. I will, therefore, first consider whether the Minister's subsidiary protection decision was, in fact, valid on the basis that if that decision is invalid, then the deportation order cannot stand.

The Applicants' claim

8 4. The application for subsidiary protection arose from the following circumstances. The first named applicant is, as I have mentioned, a Pentecostal Christian. She says that in 1995, when she first met the man who is now her husband, he was a practising Muslim, coming from a Muslim family that expected him to marry a Muslim. She states that he converted to Christianity in 1998, and they began living together, unknown to his family. She says that her difficulties began in 1999 when, upon finding out that she was pregnant, her husband's family found out about and objected to their relationship, and told her to abort the pregnancy. She refused and in November of that year gave birth to a son whose purported birth certificate she has produced. She says that she and her husband married in 2002 in a Registry Office, but her husband's family continued to tell her that she should leave him and take their son with her.

9 5. The first named applicant says that when she became pregnant again in the autumn of 2003, her father-in-law - who was a leader in the Muslim community and ran the local Mosque - brought three people to her house and ordered them to beat her. She says that she was hospitalised and suffered a miscarriage and leg injuries as a result. She has produced what purports to be a medical report, which she says supports her claim. The report produced, which appears to have been signed by the Medical Director of Abolayo Hospital in Lagos on 14 ^th January, 2006, notes for record purposes that the first named applicant suffered a "previous spontaneous abortion at 8 weeks gestation with evacuation 27 ^th September 2003". Thus, it supports her claim to have miscarried but says nothing about this having been caused by an assault.

10 6. The first named applicant did not report the alleged assault to the police. She states that she didn't have the will or strength at the time, and thought that making a complaint would further worsen the family dispute. She also states that she believed that the police would not investigate family matters. Insofar as the question arises as to why she would not report such a serious incident to the police, she points to Country of Origin information in the form of the UK Home Office's Country of Origin Information Report: Nigeria(May 2007) and Amnesty International's Report 2007 on the State of the World's Human Rights, as providing an explanation for her position.

11 7. The first named applicant states that following another pregnancy, she gave birth to the second named applicant, in July 2004. She claims that on several occasions, her father-in-law and his associates came to her home, threatened her and ordered her to leave her husband. She says that she and her husband moved house on several occasions but even so, her father-in-law was always able to locate them. She says that they also harassed her husband at work.

12 8. She claims that in February 2005, after moving with her children to northern Nigeria to stay with a friend's sister, she received threatening phone-calls on her mobile phone, which she claims emanated from her father-in-law and his associates. Of note is that she accepts that these people did not know where she was residing at this point. She says that she became afraid and after a month returned to her husband. She says her father-in-law continued to visit her home and threaten her.

13 9. The first named applicant further claims that in December 2005, her father-in-law again came to her home, accompanied by thugs, and kidnapped her son, who was then six years old. She says that she reported this matter to the police a day later, and has produced documentation that is said to support that claim, in the form of an extract from a police station diary, dated 26 ^th December, 2005. She says that the police initially told her they would investigate the kidnapping but, after questioning her father-in-law, told her that this was a family issue, and should be sorted out by the family. She says that soon after this incident, she arranged to leave Nigeria.

Procedural Background

14 10. The first named applicant applied for asylum in this State in the ordinary way on 9 ^th January, 2006. The second named applicant was included in this application and after the third named applicant...