B.E. v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 25 June 2010
• Neutral Citation: [2010] IEHC 249
• Court: High Court
• Date: 25 June 2010

[2010] IEHC 249

THE HIGH COURT

[No. 171 J.R./2010]

E (B) v Min for Justice

MR JUSTICE COOKE

APPROVED TEXT

REDACTED TEXT

JUDICIAL REVIEW

BETWEEN

B.E.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

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

REFUGEE ACT 1996 S11

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S3(6)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

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

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

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

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 2(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 4(3)

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

UNIVERSAL DECLARARION OF HUMAN RIGHTS ART 5

GENEVA CONVENTION 1949

REFUGEE ACT 1996 S17(1)

IMMIGRATION

Subsidiary protection

Fear of persecution - Serious harm - Real risk - Continuing persecution - Inhuman and degrading treatment - Credibility - Medical reports - Female genital mutilation - Whether applicant had already been subjected to persecution or serious harm - Whether applicant at risk of further torture - Whether real risk that applicant would be subjected to FGM if returned to Nigeria - Whether respondent failed to take individual position and personal circumstances into account - Whether compelling reasons that warrant determination that applicant eligible for protection - Immigration Act 1999 (No 22), s 3 - Refugee Act 1996 (No 17), s 17 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), regs 4 and 5 - European Convention on Human Rights and Fundamental Freedoms, art 8 - Universal Declaration of Human Rights, art 5 - Application rejected (2010/171JR - Cooke J - 25/6/2010) [2010] IEHC 249

E(B) v Minister for Justice, Equality and Law Reform

Facts: The applicant sought to quash a decision of the respondent Minister refusing the claim of the applicant for subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006. The applicant contended that the Minister erred in failing to approach the application of Regulation 5(2) by accepting as correct a fact which the applicant herself denied. The applicant gave evidence that she had not suffered female circumcision but had been threatened that she would be subjected to it if she returned to Nigeria. The applicant had married an Irish citizen in Ireland. Medical evidence suggested that she may have already been subjected to circumcision. The issue arose as to whether she would be exposed to on-going persecution or a risk of serious harm.

Held by Cooke J. that there was no basis upon which it could be said that the Minister was under any obligation to accept that the applicant had already suffered serious harm such as to bring into play Regulation 5(2). She was an older woman and now married and the operation was not possible. The implication of the medical opinion was that there was no objective basis for there being a real risk of her being subjected to FGM. No case as to a form of continuing persecution was made to the Minister. The applicant had not asserted that she was subjected to a circumcision procedure. She had not demonstrated any cogent basis for the existence of some real risk of harm. Further grounds alleged were phrased too generally or lacking in particularity to form the basis for a finding of illegality. The application for judicial review would be rejected.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Cooke delivered 25th day of June, 2010.

2 1. This application for an order of certiorari to quash a decision of the respondent Minister ("the Contested Decision") refusing the applicant's claim for subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006 ("the Regulations") presents one somewhat unusual feature. One of the main arguments made as to the illegality of that decision is that the Minister erred in failing to approach the application of Regulation 5 (2) by accepting as correct a fact which the applicant herself denies. It is submitted that the Minister erred in failing to consider whether a determination that the applicant is eligible for protection is warranted by the fact that she had been subjected in Nigeria to serious harm at some time prior to her departure from that country in 2007 in that she had already been subjected to female circumcision ("FGM"). Her own evidence is that she had not so suffered but had been threatened that she would be and she claims that if she is returned she still will be. The circumstances in which this proposition arises can be summarised as follows.

3 2. The applicant is a native of Nigeria who lived in a village in Imo state with her parents and four siblings prior to leaving there in May 2007. She arrived in the State on 3 ^rd May, 2007 and applied for asylum on 14 ^th August, 2007. Her application was the subject of a report and negative recommendation by the Refugee Applications Commissioner on 31 ^st August, 2007 and an appeal against that recommendation was rejected by a decision of the Refugee Appeals Tribunal on 18 ^th June, 2009. In her asylum application she gave as her primary reason for leaving Ireland her dream of becoming a nurse and her wish to continue the nursing training she had commenced in Nigeria. She gave a second reason: "… also my reason of being here is because I have a problem with my clitoris". When asked what she feared might happen if returned to Nigeria she said: "…if I go back to my country of origin … my dream will be dead and I don't know what will become of me and my family. I don't know what will become of my health because I have a problem with my clitoris and it has to be operated".

4 3. It was in the s. 11 interview on 28 ^th August, 2007, that a threat of being subjected to FGM if returned was first mentioned. She said:

"My reason for coming here is because of my circumcision. In our village, where I came from the ladies there have to be 20 to 21 years before they are circumcised. I'm up to that age soon. If they are doing circumcision people will contract one infection or the other and they will bleed to death. It is traditional circumcision. If you do not do it they will cast you away from the village and they will stone you to death if you are there. My dad was scared that if something happened to me … as I'm the first daughter of the family. My father consulted my pastor who said that he would help me get away. He consulted the congregation who all contributed money to help me fly out. I also had to leave my nursing. I had completed nine months of it."

5 4. The report of the Commissioner rejected the applicant's claim to have a well founded fear of persecution for one reason. In effect, the authorised officer found it not credible that the applicant could not avoid FGM by relocating elsewhere in Nigeria. She pointed out that the applicant had second level education and work experience in a private hospital. She could relocate and support herself particularly as she appeared to have the support of her father in avoiding FGM.

6 5. The grounds raised in the appeal against the report were directed in substance at the reality of the fear of FGM expressed by the applicant and at the finding of the availability of internal protection by relocation. Extensive country of origin information was submitted on the prevalence of FGM in Nigeria. The appeal hearing took place on 7 ^th April, 2009 following two earlier adjournments. Shortly before that hearing the Refugee Legal Service, representing the applicant, submitted new information in the form of two letters from Dr. D. of [..] Medical Centre, […]. These letters or reports arise out of the gynaecological problem originally mentioned by the applicant in her asylum application. The applicant had consulted Dr. D. in September, 2008 in relation to this complaint. In the letter dated 28 ^th January, 2009 Dr. D. says that on examination she had a large and extraordinary swelling or lesion in the area normally occupied by the clitoris. She was referred to a gynaecologist at Mayo General Hospital and seen by a number of specialists there none of whom had ever seen the condition before. She had surgery to have the lesion removed in February, 2008. Following a further consultation, the second letter of 2 ^nd February, 2009 from Dr. D. gives the view: "On examination there is absolutely no sign of any clitoral tissue and neither was there in the histology of the lesion removed from that area." The letter also records something said by the applicant to Dr. D.:

"She said that in her area there is a local custom that two year old girls are brought to the village and a special leaf is pressed against the clitoris to make it grow. This is done for one week. Apparently the mother would keep an eye on events after that and the female is then brought back aged twenty where the clitoris is excised. Bobbi's mother left when she was six and her father apparently when asked as it was approaching her twentieth birthday to contribute towards the costs of the ingredients for the local feast said he had no money. He then got money which she said he used to get her safely away from there. So essentially Bobbi is saying that she did not have a clitorectomy ( sic) or any form of FGM."

7 Dr. D. concludes:

"While this entire story is confusing I regret this is all I can offer you on it."

8 6. The notes taken of the appeal hearing include the following passage:

"P.O. (Presenting Officer): Did you have FGM carried out in Nigeria?

Applicant: No.

P.O.: Then why is...