A. & Anor -v- Refugee Applications Commissioner & Ors, [2008] IEHC 440 (2008)

Docket Number:2008 1096 JR
Party Name:A. & Anor, Refugee Applications Commissioner & Ors
Judge:Irvine J.
 
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Neutral Citation Number: [2008] IEHC 440

THE HIGH COURT

JUDICIAL REVIEW 2008 1096 JR

BETWEEN

J.A. AND D.A. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND J. A.)APPLICANTSAND

THE REFUGEE APPLICATIONS COMMISSIONER,

THE REFUGEE APPEALS TRIBUNAL

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

THE ATTORNEY GENERAL, IRELAND RESPONDENTSAND

THE HUMAN RIGHTS COMMISSIONNOTICE PARTYJUDGMENT of Ms. Justice Irvine delivered on the 3rd day of December, 2008

Factual Background

J.A., the first named applicant, is a national of Nigeria. She is the mother of the second named applicant D.A. J.A. contends that she fled Nigeria, having been accused of witchcraft, and arrived in Ireland on 8th November, 2005. D.A. was born in Ireland two days later on 10th November, 2005.

J.A. applied for refugee status and, accordingly, attended at the office of the first named respondent ("the Commissioner") for interview on 3rd March, 2006. At the commencement of her interview, J.A. was asked if she wished to have her son, D.A., included in her claim. The interview notes record as follows:-

"Break to enable applicant to query and organise registration of [D.] 10.20 - 10.50. Interpreter stayed with applicant while her options were explained. Applicant chose to have [D.] attached to her claim."

J.A. thereafter signed a report of the s. 11 interview which acknowledged her application to have D.A. included under her own application for refugee status. The report also suggests at page three that she was asked whether she had any issues she wished to raise in relation to her son, D.A., to which she gave a negative response. The interview was conducted by Ms. Maureen O'Connor as an officer of the Commissioner.

By letter dated 20th March, 2006, J.A. was advised that the Commissioner was recommending that neither she nor her dependent son be declared a refugee.

The report pursuant to s. 13(1) of the Refugee Act 1996 (as amended) ("the Act of 1996"), refers at the outset to the first named applicant and states that the report covers, in addition, the application of the second named applicant who is also named. The report sets out at paragraph 3 the persecution claimed in the following terms:-

3.1 The applicant alleges that her life was threatened by members of O'odua Peoples Congress (OPC), and also by members of her husband's family in Lagos who are in the OPC. The applicant alleges that her brother-in-law died in August, 2005, and that they accused her of killing him by poison and/or witchcraft.

In relation to persecution, the report also notes the following allegation made by the first named applicant namely:-

4.6 The applicant alleges that her alleged brother-in-law died in October, 2005. The applicant alleges that members of the OPC threatened to kill her and her unborn (at that time) child because they blamed her for her brother-in-law's death (question 21 of application questionnaire). The applicant alleges that her in-laws called her a witch and said she had poisoned her brother-in-law (Question 58 pp. 19/20 of Interview Notes).

The s. 13 report was signed by Mr. Phelim Cassidy who had not conducted the s. 11 interview. At para. 4.11 of his report, he referred to the fact that:-

"There are very serious doubts regarding the credibility of the applicant and the applicant's claim overall is very unconvincing. The applicant did not present any credible evidence that she and her child have a well founded fear of persecution on any grounds as defined by the Geneva Convention if she were to return to Nigeria. The basis for contention that the applicant is a refugee is very minimal."

The report concluded that the application should be considered in accordance with s. 13(6)(a) of the Refugee Act 1996, as amended, on the basis that the applicant had showed either no basis or a minimal basis for the contention that she was entitled to be considered a refugee. He expressed himself satisfied that the applicant had failed to establish a well founded fear of persecution in accordance with s. 2 of the Act of 1996 (as amended), and recommended that she should not be declared a refugee.

A notice of appeal was submitted by the Refugee Legal Services (RLS) to the Refugee Appeals Tribunal ("the Tribunal"). The letter, enclosing the notice of appeal dated 11th April, 2006, stated that the Refugee Legal Service had received instructions from J.A. that she did not wish to have the appeal scheduled before Mr. James Nicholson. Notwithstanding this request, the applicant's appeal was duly determined by Mr. Nicholson who, in his report dated 25th June, 2007, advised that he had considered all relevant documentation. The letter enclosing the decision of the Tribunal referred to both the first and second named applicant and reported the decision of the Tribunal which was to the effect that neither should be declared refugees. The decision of the Tribunal was directed on its face and in its title to both the first and second named applicants.

In the report of the Tribunal member, the applicants' claim for refugee status is recorded as having being based upon the fear of persecution arising from the accusation made against her by her husband's family and members of the OPC that she practiced witchcraft. The Tribunal went on to conclude that notwithstanding the submission furnished by the RLS, the applicants had not discharged the burden of proof to justify a determination that the recommendation of the Commissioner should be overturned.

By letter dated 17th August, 2007, J.A. was advised of the Minister's decision to make a deportation order in relation to herself and D.A. Accordingly, J.A. was invited to submit representations for leave to remain in the State and also to seek subsidiary protection. Representations seeking humanitarian leave to remain in the State were submitted to the Minister by letters dated 3rd September and 30th October, 2007. The first of these letters expressed disappointment with the fact that J.A's appeal had been dealt with by Mr. Nicholson on behalf of the Tribunal. The letter advised the department that J.A. had specifically requested that Mr. Nicholson would not hear her appeal and requested the department to note that Mr. Nicholson was the subject matter of High Court proceedings wherein bias was alleged against him by a number of asylum seekers.

By application dated 4th September, 2007, the first named applicant sought subsidiary protection pursuant to the European Communities (Eligibility for Protection) Regulations 2006. By letter dated 8th July, 2008, addressed to both J.A. and D.A., the first named applicant was advised that her application, including that of D.A. for subsidiary protection, had been refused. The letter enclosed a copy of the report setting out the Minister's determination. The report concluded that J.A. and D.A. had not shown substantial grounds for believing that they were at risk of suffering serious harm if returned to Nigeria.

On 18th September, 2008, the RLS forwarded the applicant's file to Séan Mulvihill and Company, solicitors. By letter 22nd September, 2008, J.A's new solicitor, Mr. Mulvihill, submitted fresh representations to the Department of Justice, Equality and Law Reform as to why J.A. should not be deported. By letter dated 24th September, 2008, and received on 27th September, 2008, J.A. was notified that deportation orders relating to both herself and the second named applicant had been made. The said letter enclosed the deportation orders in respect of both of the applicants which are dated 9th September, 2008. The deportation orders were stated to be based upon the fact that J.A. and D.A. were not eligible to remain in the State by reason of the provisions of s. 3(2)(f) of the Immigration Act 1999, whereby their applications for asylum had been refused. Further, the letter enclosed a copy of the Minister's considerations pursuant to s. 3 of the Immigration Act 1999 (as amended), and s. 5 of the Act of 1996, in relation to both J.A. and D.A.

Finally, in an affidavit sworn on 19th November, 2008, Mr. Michael Flynn, on behalf of the respondents, advised that the applicants' solicitor's additional representations in support of her application for leave to remain temporarily in the State had caused her case to be re-examined, but as no factors were found that would justify granting her leave to remain in the State, the deportation orders were accordingly affirmed.

Claim on behalf of the second named applicant

Leave is sought by the second named applicant to seek:-

(i) An order of certiorari to quash the decision of the Commissioner making a recommendation that he not be declared a refugee;

(ii) An order of certiorari to quash the decision of the Tribunal which affirmed the recommendation of the Commissioner;

(iii) An order of certiorari seeking to quash the decision of the third named respondent ("the Minister") in respect of the deportation order made referable to him.

(iv) An order of certiorari quashing the decision of the Minister to refuse him subsidiary protection; and

(v) A number of ancillary reliefs by way of injunction and declaration which are set out in the statement of grounds.

Claim on behalf of the first named applicant

Leave is sought by the first named applicant to seek:-

(i) an order of certiorari to quash the decision of the Tribunal which affirmed the recommendation of the Commissioner that she should not be declared a refugee;

(ii) an order of certiorari to quash the order made by the Minister that she should be deported;

(iii) An order of certiorari to quash the decision of the Minister refusing her subsidiary protection;

(iv) A number of ancillary reliefs including reliefs by way of injunction and declaration as particularised in the statement of grounds.

In addition to the foregoing reliefs, a declaration is also sought that ss. 13(5) and 13(6) of the Refugee Act 1996 (as amended), are incompatible with the provisions of the Constitution, although this matter was not...

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