A (CF) (A Minor) v Refugee Appeals Tribunal (Egan) and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 19 June 2015
• Neutral Citation: [2015] IEHC 702
• Date: 19 June 2015
• Court: High Court

[2015] IEHC 702

THE HIGH COURT

[No. 1402 J.R./2010]

A (CF) (a minor) v Refugee Appeals Tribunal (Egan) & Ors

JUDICIAL REVIEW

BETWEEN

C. F. A. (A MINOR SUING THROUGH HER MOTHER AND NEXT FRIEND C. O.)

APPLICANT

AND

DONAL A. EGAN ACTING AS THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE AND LAW REFORM, ATTORNEY GENERAL, IRELAND

RESPONDENTS

Asylum, Immigration & Nationality – The Immigration Act 1999 – Fear of persecution – Female Genital Mutation (FGM) – Paper only appeal – The Refugee Act, 1996 – Reg. 5 of the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006) – Country of origin information – Future persecution – Assessment of viability of place of internal relocation

Facts: The minor applicant through her mother sought an order of certiorari for quashing the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicant not be declared a refugee. The applicant's core claim was that she would be subjected to discrimination in the country of origin being an illegitimate child of her mother, who was a single parent, and that she would be subjected to Female Genital Mutation (FGM) if she were to return there.

Ms. Justice Faherty granted an order of certiorari for quashing the decision of the first named respondent and remitted the matter for a de novo hearing before another member of the first named respondent. The Court held that it had no jurisdiction to receive new evidence in the judicial review proceedings which was introduced to exhibit contradiction between the evidence of the applicant's mother before the Immigration and Naturalisation Unit and the first named respondent. The Court found that in the present case, the facts that the mother of the applicant had experienced FGM herself and the reports exhibiting the prevalence of FGM in Nigeria made it compulsory for the first named respondent to consider those facts as contemplated by reg. 5(1 (a) and reg. 5(1) (b) of the European Communities (Eligibility for Protection) Regulations 2006. The Court held that it was unjust and unfair for the first named respondent to have rejected the credibility of the mother of the applicant on the basis that she had failed to cite her core claim of the applicant being subjected to FGM upon her return to the country of origin in her s. 8 interview under the Refugee Act, 1996. The Court observed that the disbelief of the first named respondent in relation to the applicant having suffered past persecution did not relieve it from considering the possibility of future persecution. The Court held that once a place for internal relocation was identified by the first named respondent, it was bound to inquire about its viability to support its findings, which the first named respondent had failed to do in the present case.

1 JUDGMENT of Ms. Justice Faherty delivered on the 19th day of June 2015

2 1. This is a telescoped hearing wherein the applicant challenged the decision of the Refugee Appeals Tribunal which affirmed the recommendation of the Refugee Applications Commissioner that she not be declared a refugee.

Extension of time

3 The applicant sought an extension of time in which to bring the within proceedings. I am satisfied to grant the extension, having regard to the Affidavit of the applicant's solicitor, sworn on the 28 ^th October 2010.

Background and procedural history

4 2. The applicant was born on the 18 ^th February 2009 in this State to Nigerian parents. Her mother was born on the 25 ^th December 1985 in Nigeria and she sought asylum in this State in 2008. Her application was unsuccessful.

5 The applicant's asylum application was commenced on the 21 ^st June 2010 when she was aged 16 months. An ASY1 Form was completed on that date by her mother and the latter underwent a section 8 interview on the applicant's behalf.

6 A questionnaire was completed on the 29 ^th June 2010. The applicant's mother underwent a section 11 interview on the 16 ^th July 2010.

7 The section 13 report dated the 27 ^th July 2010 issued to the applicant on the 5 ^th August 2010. In summary, the claim was rejected on the following grounds:-

8 · According to the citizenship laws of the world, a child can have citizenship of Nigeria by dissent regardless of the country of birth.

9 · The applicant's mother did not give a reasonable reason for the long delay in applying for asylum for her daughter. This undermined the credibility that the applicant had a genuine fear for her daughter.

10 · It was not considered reasonable that the applicant's mother made no mention in her section 8 interview of her fear that the applicant would face circumcision.

11 · The applicant's mother failed to rebut the presumption that states are capable of protecting their citizens.

12 · The applicant's mother's claim that girls in Nigeria "must be circumcised" was not in agreement with generally known information.

13 · Information from WACOL stated that they believe adult women could relocate within Nigeria and that adult women protecting their daughters could do the same.

14 · As the applicant's mother did not provide a reasonable explanation for the delay in making a claim for her daughter, the provisions of s. 13(6)(c) of the 1996 Act applied to the case. Accordingly, the applicant's appeal to the second named respondent proceeded on a papers only basis.

15 3. The decision of the Refugee Appeals Tribunal issued on the 7 ^th October 2010. The findings as set out therein are considered elsewhere in this judgment.

Grounds of challenge

16 4. 15 grounds of challenge are set out in the statement of grounds. In the course of oral submissions, these were distilled by the applicant's counsel, as follows:- The Tribunal Member erred in law and/or breached natural and constitutional justice in:

17 · Failing to have sufficient regard to the fact that the applicant, a minor aged 1 ½ years at the time of application for asylum, was afforded a papers only appeal.

18 · Failing to conduct the "careful" inquiry which a papers only appeal necessitates.

19 · Failing to assess the applicant's credibility on relevant grounds

20 · Wrongly applying the provisions of s. 11B (d) to the applicant's circumstances.

21 · Rejecting the applicant's fear of FGM on the basis of her mother's failure to mention this fear in the ASY1 Form/section 8 interview, in circumstances where the applicant's mother has specifically referred to this fear on behalf of the applicant in the questionnaire and in the section 11 interview.

22 · Failing to assist the applicant in making her asylum application, as required by the provisions of Article 12.2(b) of the EU Procedures Directive.

23 · Failing to have regard to the fact that the applicant's mother herself had undergone circumcision and that circumcision was common in Nigeria, as evidenced by country of origin information before the Refugee Appeals Tribunal

24 · Failing to analyse the applicant's fear of persecution on that basis in light of available country of origin information, as required by Regulation 5(1) (a) of the 2006 Regulations.

25 · Failing to take into account the fact of the applicant's mother's circumcision as a factor in the applicant's favour for the purposes of the necessary assessment which should have been undertaken (but was not) by the Tribunal Member pursuant to Regulation 5(2) of the 2006 Regulations

26 · Failing to consider the issue of internal relocation in accordance with available country of origin information and/or in accordance with Regulation 7 of the 2006 Regulations and the principles set down in K.D. (Nigeria).

Consideration

27 A number of preliminary matters arose for consideration before the court embarked upon a consideration of the arguments advanced on the substantive issues.

Preliminary issue No. 1: The Carey Affidavit

28 In the course of her section 11 interview and in a response to a suggestion that she and the applicant could relocate internally in Nigeria, the applicant's mother objected on the basis that she had no family in Nigeria.

29 In oral submissions the applicant's counsel alerted the court to the Tribunal Member's failure, when considering the issue of internal relocation, to have regard to the fact that the applicant's mother had no family in Nigeria, as part of the reasonable analysis which was required.

30 In the context of that submission, the respondents' counsel subsequently referred to an affidavit sworn by Mr. Pat Carey, an official in second named respondent's Immigration and Naturalisation unit, which exhibited documentation extracted from the file of the applicant's mother and which formed part of the book of pleadings in judicial review proceedings instituted by her, challenging the deportation order made against her on the 17 ^th June 2010. The documentation comprised the questionnaire completed by the applicant's mother in her own application for refugee status, her section 11 interview and the examination of file under s. 3 of the Immigration Act 1999. Counsel submitted that the contents of those documents conflicted with what the applicant's mother had stated during the applicant's asylum process. The mother's questionnaire, dated 18 ^th May 2008, contained details of the applicant's mother's parents living at a named address in Imo State and there was a reference to an uncle who assisted her in 2006 and 2007 (and who died in 2007) and to an aunt who, together with the applicant's mother's parents, assisted the applicant's mother in getting out of Nigeria. This information was largely replicated in the section 11 interview which took place on the 22 ^nd May 2008. The examination of file, dated 8 ^th June 2010, contained the following information:-

"Ms [O] stated on arrival in the State...