A (B O)(Nigeria)(A Minor) & A (A) v Min for Justice & Refugee Applications Commissioner
| Jurisdiction | Ireland |
| Judge | Ms. Justice Stewart |
| Judgment Date | 20 November 2015 |
| Neutral Citation | [2015] IEHC 739 |
| Court | High Court |
| Date | 20 November 2015 |
[2015] IEHC 739
THE HIGH COURT
BETWEEN
AND
Asylum, Immigration & Nationality – S. 13 (6) (a) of the Refugee Act 1996 – Judicial review – Certiorari – Fear of persecution – Art. 39 of Council Directive 2005/85/EC
Facts: The applicant through his father sought leave and also an order of certiorari for quashing the decision of the second named respondent for applying s. 13 (6) (a) of the Refugee Act 1996 to the claim of the applicant in the present telescoped hearing. The applicant contended that the findings by the second named respondent under s. 13 (6) (a) would prevent an oral hearing, which would amount to denial of the right of effective remedy under art. 39 of Council Directive 2005/85/EC
Ms. Justice Stewart refused to grant an order of certiorari to the applicant. The Court held that neither the Refugee Act 1996 nor the Asylum Procedure Directive imposed an obligation on the decision maker to investigate a claim that had not been made or to reconsider a claim that had already been fully considered. The Court found held that there was no need to conduct a separate s. 11 interview for an infant who had no independent fear of persecution from the rest of his family. The Court found that the birth of the infant either prior to or after the decision of the second named respondent made no difference and the decision of the second named respondent applied equally to the applicant. The Court found that the imposition of the finding under s. 13 (6) (a) of the Refugee Act 1996 was just and cogent as the core claim of the applicant that was advanced by his father mirrored the claims of other family members and thus, the second named respondent was entitled to take application concerning those members into account provided that there was no change in circumstances.
1. This is telescoped hearing for judicial review seeking certiorari to quash a decision of the Refugee Applications Commissioner (RAC) to apply the provisions of s.13(6)(a) of the Refugee Act 1996 (as amended) to the applicant's claim, dated 15 thApril, 2010, and notified to the applicant by cover letter dated 21 st April, 2010, and an order remitting the matter for reconsideration by the RAC.
2. The applicant is a Nigerian national born in this State on 18 th September, 2008. His mother and father are Nigerian nationals and asylum applicants. The applicant's father applied for asylum on behalf of the applicant on 3 rd March, 2010, when he was seventeen months old. The infant applicant's father completed all documentation and spoke at interview on behalf of the applicant. The interview was held on 8 th April, 2010.
3. The applicant's father stated at the s.11 interview that the applicant's claim of persecution emanates from the same source as previously claimed by the rest of the family, and was therefore, not an isolated claim. Some of the relevant sections from the s.11 interview are worth setting out in full hereunder.
| "Q.11: | Can you tell me now what exactly you fear will happen to your son if he were to go to Nigeria. |
| A: | If he was to go to Nigeria, he is not going back alone. We will be going back as a family unit. If we go back the threat on the family is still there. |
| Q.12: | What exactly do you fear will happen to your son if he were to go to Nigeria? |
| A: | He could be kidnapped for ransom or to force me to join the cult. |
| Q.13: | Who exactly do you fear would do this to him? |
| A: | The members of Awopa Fraternity. |
| Q.14: | What are the names of these cult members you fear will kidnap him. |
| A: | Any of the members of the Fraternity. You can't say which of them. |
| Q.15: | Why would they kidnap your son? |
| A: | Because they want me to join the cult and I don't want to. |
| Q.16: | Other than the fear you have stated for your son with regard to the cult, do you fear anything else for him if he were to go to Nigeria? |
| A: | Yes. His father could be killed. |
| Q.17: | Do you fear anything else would happen to your son himself? |
| A: | If his father is killed it is not something nice that he lost his father to a cult. |
| Q.18: | Other than the fear of your son being kidnapped, do you fear anything else could happen to happen to him? |
| A: | As I have said his case is not isolated, it has to do with his family. |
| Q.19: | So can I take it that the only fears you have for your son in Nigeria are in relation to the cult and what they might do? |
| A: | Yes. The last one is his mum and his sisters could be mutilated, circumcised." |
4. The applicant's father claimed that he was being coerced into joining the Awopa fraternity as a replacement for his grandfather, who had died in October, 2006, and he did not wish to join, inter alia, because of their practice of human sacrifice. He and his wife, the applicant's mother, left Nigeria in February, 2007.
5. An affidavit was sworn by a Higher Executive Officer in the RAC on 2 nd July, 2015, to clarify the position of the applicant's family members. He states as follows from para. 11 to para. 16 thereof:
"11. I say that the Applicant's father and Next Friend herein, A[…] A[…], his mother, O[…] A[…], and his sibling B[…] A[…] have applied for asylum in the State. [The applicant's sister] was born in Ireland on the 25 th April 2007 and she was joined as a dependent (sic) in her mother's application.
I say that the Respondent recommended that the Next Friend, A[…] A[…], should not be declared a refugee by way of Section 13 Report dated 7 th March 2007. […] I say that this Recommendation was never challenged by Mr. A[…]
I say that the Respondent recommended that O[…] A[…] and her daughter should not be declared refugees by way of a Section 13 Report dated the 20 th June 2007. I say that this Recommendation was challenged by way of judicial review proceedings which were later settled on agreed terms. I say that the Respondent issued a further negative Recommendation dated the 13 th February 2008 […]
I say that O[…] A[…] and her daughter also challenged the second Recommendation at paragraph 13 herein by way of judicial review and these proceedings were later withdrawn by the applicants on the 14 th December 2009.
I say that the Refugee Appeals Tribunal affirmed the negative Recommendations at paragraphs 12 and 13 herein by way of decision dated 6 th May 2010. I say that these decisions were challenged by way of judicial review proceedings […]. I say that these proceedings were recently compromised on 23 rd February 2015 and remitted to the Refugee Appeals Tribunal.
I say that the Respondent has at all material times acted rationally and reasonably and within jurisdiction when determining the Applicant's application and, in particular, was entitled to have regard to the Recommendations at paragraph 12 and 13 herein when examining his claim."
6. The decision dated 15 th April, 2010, issued to the applicant by cover letter dated 21 st April, 2010, wherein the second named respondent recommended that the applicant should not be declared a refugee. The applicant's case was based upon three findings, namely:
(i) The applicant's fears, as stated by his father, were deemed not to be well-found. The decision-maker used the applicant's family's RAC s.13 reports in the preparation of her report, because, she stated, the claims were inextricably linked.
(ii) There would be state protection available to the applicant and the applicant could have internally relocated in Nigeria to avoid the perceived danger.
(iii) The claim presented did not have a convention nexus and the situation described was a criminal matter and not a matter that gave rise to the need for international protection.
7. Under the heading, section 13(6) finding', the RAC authorised officer states as follows:
"The applicant's father claims that the fear he holds for the applicant is based on the fears he has for himself in Nigeria i.e. from the Awopa Fraternity. The applicant's father was refused refugee status by ORAC. The applicant's father has not demonstrated that the applicant has an individual well founded fear of persecution in Nigeria."
Having regard to the above, Section 13(6)(a) of the Refugee Act 1996 (as amended) applies to this application; that the application showed either no basis or a minimal basis for the contention that the applicant is a refugee."
The upshot of this finding is that any appeal to the Refugee Appeals Tribunal would be by way of a papers-only appeal and no oral hearing would be held.
8. Counsel for the applicant Mr. Michael Conlon S.C. appearing with Mr. Paul O'Shea B.L., submitted that the claim was rejected for three reasons: (i) the applicant's father's credibility; (ii) the availability of state protection; and (iii) the absence of a nexus to a convention reason. The applicant argued that findings two and three above could be effectively dealt with by way of a papers-only appeal, but the credibility of the applicant's father could only be tested by way of oral testimony. Here, the applicant relied upon the decisions of Cooke J. in S.U.N. [South Africa] v. Refugee Applications Commissioner & ors, [2012] IEHC 338 and that of Barr J. in U.P. v. Minister for Justice, Equality and Law Reform & ors. [2014] IEHC 567. Without such an oral hearing, the applicant contended, the applicant would be denied his right to an effective remedy as per the terms of article 39 of ...
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