O. C. B. v Minister for Justice Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 29 April 2015
• Neutral Citation: [2015] IEHC 267
• Court: High Court
• Date: 29 April 2015

[2015] IEHC 267

THE HIGH COURT

[RECORD NO. 1481/JR/2010]

B (N) & B (OC) (an infant) v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

N. B. AND O. C. B. (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND N. B.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, THE REFUGEE APPEALS TRIBUNAL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

REFUGEE ACT 1996 S11(B)

PO (TRAFFICKED WOMEN) NIGERIA CG UNREP 6.11.2008 7.1.2009 13.1.2009 2009 UKIAT 00046

B (G O) v MIN FOR JUSTICE UNREP BIRMINGHAM 3.6.2008 2008/2/390 2008 IEHC 229 (EX-TEMPORE)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 7

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 7(2)

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

D (K) [NIGERIA] v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2013 1 IR 448 2013/12/3517 2013 IEHC 481

I (E) & I (A) (MINORS) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (O'GORMAN) UNREP MAC EOCHAIDH 30.1.2014 2014 IEHC 27

REFUGEE ACT 1996 S11

A (OA) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP FEENEY 9.2.2007 2007/4/605 2007 IEHC 169

O (N) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP BARR 2.10.2014 2014 IEHC 509

N (S) [UGANDA] v MIN FOR JUSTICE UNREP HOGAN 27.7.2011 2011/40/11498 2011 IEHC 451

B (K) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP MAC EOCHAIDH 12.4.2013 2013/5/1203 2013 IEHC 169

Asylum – Judicial review – Order of certiorari – Refugee Act 1996 (as amended) – European Communities (Eligibility for Protection) Regulations 2006.

Facts: The applicant sought an order by way of judicial review for an order of certiorari quashing the decision of the second named respondent. The order had affirmed the refusal of the refugee status of the applicant claiming fear of persecution for a Convention reason. The applicant contended that the Tribunal Member had not taken into account the detailed consideration of the applicant's situation. The applicant further alleged that the Tribunal had failed to analyse the likelihood of future persecution. The applicant argued that the Tribunal Member had erred in not making a finding pursuant to reg. 5(2) of the 2006 Regulations.

Ms. Justice Faherty held that the application seeking an order of certiorari quashing the decision of the second named respondent affirming the refusal of the claim for asylum would be granted. The Court held that the respondent had failed to carry out sufficient investigation to substantiate past suffering as well as future fear of persecution. The Court accepted the applicant's argument that the Tribunal Member had erred in not making a finding pursuant to reg. 5(2) of the 2006 Regulations. The Court held that the defendant had failed to take in to account the consideration of the ‘counter exception’ set out in reg. 5 (2) of the 2006 Regulations.

1 JUDGMENT of Ms. Justice Faherty delivered on the 29th day of April 2015

2 1. This is a telescoped application for judicial review wherein the applicants seek an order of certiorari quashing the decision of the second named respondent made on the 20 ^th October 2010, affirming the recommendation of the Refugee Applications Commissioner to refuse them refugee status, and notified to the applicants on the 5 ^th November 2010.

Background

3 2. The first named applicant is a Nigerian national born in Benin City, Edo State, on the 9 ^th December 1980. The second named applicant was born in this State on the 10 ^th March 2007. The first named applicant's account of events is as follows:

4 From the age of three years she lived with her aunt in a named city in Nigeria, being orphaned at the age of three years after her parents were shot during a robbery. She received no formal education, having never been sent to school. Her aunt taught her to read and write by buying books for her. The first named applicant was kept in her aunt's home to work. When aged approximately 23 or 24, she began to learn the rudiments of hairdressing from a local salon. However, her aunt did not want her to do this and insisted she work for her as a housemaid. As a consequence, the first named applicant was not able to learn her skill on a daily basis but went whenever she could. However she was frequently beaten by her aunt when she was found working in the salon.

5 3. The first named applicant claims to have left Nigeria in February 2006 in the following circumstances: A friend of her aunt, J.O., told the applicant that she could arrange work for her in Ireland, either in a factory or as a hotel receptionist. Wanting a better life, and in view of her home circumstances, the first named applicant was happy to go to Ireland with J.O. She had no parents in Ni geria and was effectively a housemaid for her aunt and feared being put out of her aunt's home at any time, with a result that she would have nowhere to go.

6 4. Before she left Nigeria with J.O. she was made swear the "JuJu" by J.O. Part of her hair was taken and she was informed that if she said anything against J.O., she would die. J.O. made arrangements for her travel and the first named applicant duly travelled to Lagos with J.O. After two days, they travelled to Ireland via Amsterdam. On arrival in this State, she was taken to a house by J.O.'s boyfriend. She was then told by J.O. that she owed her €25,000 for bringing her to Ireland. From there on in, she was kept locked in the house and forced to work as a prostitute. She was often beaten by J.O. There were other girls in the house also, three of them in the same room as the first named applicant. Some of the men who came to the house did not wear condoms. As a result the applicant became pregnant and when J.O. found out she wanted the pregnancy terminated. The first named applicant was taken from the house for this purpose and while she and J.O. were travelling by bus, J.O. fell asleep, allowing the first named applicant to effect an escape. Following this, she was assisted by a woman who found her in a distressed state and who paid a taxi driver to take her to offices of ORAC.

Procedural history

7 5. The first named applicant's asylum process commenced on the 19 ^th February 2007, the day of her escape. An ASY1 form was completed on the 20 ^th February 2007 and the first named applicant duly completed a questionnaire on the 1 ^st March 2007. An ASY1 form was completed in respect of the second named applicant on the 2 ^nd April 2007. The first named applicant claimed refugee status on the basis of being trafficked into Ireland and forced into prostitution in order to repay money to the trafficker. She underwent a section 11 interview on the 28 ^th May 2007 and the report of the Refugee Applications Commissioner dated 29 ^th May 2007 was notified to her on the 1 ^st June 2007 denying the first and second named applicants refugee status.

8 The Commissioner found:-

"The applicant's alleged problems in Nigeria are not related to any of the Convention grounds of race, religion, nationality, membership of particular group or political opinion, Her problems are with her aunt and with her aunt's friend who brought her to Ireland."

9 This report has had regard to section 11 (B) of the Refugee Act 1996 (as amended)"

10 6. Notwithstanding the foregoing, the Commissioner found that state assistance could be sought by the applicant on her return to Nigeria. It was further considered that the applicant's contention that she could not relocate within Nigeria lacked credibility.

11 7. The first named applicant duly appealed the Commissioner's recommendation and an oral hearing of her appeal before the Refugee Appeals Tribunal took place on the 12 ^th July 2010.

12 8. The decision of the Refugee Appeals Tribunal affirmed the recommendation of the Refugee Applications Commissioner.

The Tribunal's findings

13 9. The account of events given by the first named applicant was found to be credible, the Tribunal Member expressing her view in the following terms:-

"It is difficult to assess the credibility of the applicant's account due to the vagueness of the account and the lack of detail provided by the Applicant. However, having reviewed the report of Dr. Sarah Levis dated July 2010, the correspondence from the Rape Crisis Centre, the Ruhama Report and the correspondence from the Sexual Violence Centre, the Applicant is entitled to the benefit of any doubt I may have."

14 She found that the applicant, as a victim of human trafficking "could come within the rubric of 'particular social group' for the purposes of the Convention.

15 10. The Tribunal Member went on to determine that state protection in Nigeria was available to the applicants and, additionally, they could avail of internal relocation.

16 11. As regards state protection, much of the Tribunal Member's focus was directed to the contents of a US Department of State Trafficking Report 2010. The Tribunal Member stated:-

"The Government of Nigeria fully compiles with the minimum standards for the elimination of trafficking. It demonstrated sustained progress to combat human trafficking during the reporting period. In 2009, the Government convicted 25 trafficking offenders and provided care for 1109 victims, increases over the previous reporting period. It also continued to undertake strong efforts to raise awareness of human trafficking. In addition, its National Agency for the Prohibition of Trafficking in Persons (NAPTIP) ceased the practice of interrogating trafficking suspects at the same Lagos facility housing its shelter for trafficking victims. To better ensure victims' rights are respected, NAPTIP formed a committee in mid-2009 to review victim care policies, aiming to strike a balance between ensuring victims' safety in shelters and promoting their freedom of movement. The Nigerian government in...