D(N) v Minister for Justice & Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 02 February 2012
• Neutral Citation: [2012] IEHC 44
• Court: High Court
• Date: 02 February 2012

[2012] IEHC 44

THE HIGH COURT

[No. 129 J.R./2011]

D (N) [Nigeria] v Min for Justice

JUDICIAL REVIEW

BETWEEN

N. D. [Nigeria]

APPLICANT

AND

THE MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S13(1)

IMMIGRATION ACT 1999 S3(6)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(5)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

RSC O.84

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

A (BJS) (NIGERIA) v MIN FOR JUSTICE UNREP COOKE 12.10.2011 2011 IEHC 381

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(1)(A)

IMMIGRATION ACT 1999 S3(3)

REFUGEE ACT 1996 S17(1)

EEC DIR 2004/83

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

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(5)

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

O (O) & ANOR v MIN FOR JUSTICE & ORS UNREP COOKE 16.3.2011 2011 IEHC 165

O (O) & ANOR v MIN FOR JUSTICE & ORS UNREP COOKE 4.5.2011 2011 IEHC 175

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

SHORTER OXFORD ENGLISH DICTIONARY 6ED 2007 VOL 2 2355

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

CONSTITUTION 40.3

IMMIGRATION LAW

Deportation

Subsidiary protection - Appropriate forum to challenge findings of fact - Unappealed adverse credibility findings adopted by first respondent - Whether obligation on first respondent to reconsider findings - Whether arguable grounds to challenge subsidiary protection - Interpretation of âÇÿproceed to consider' under European Communities (Eligibility for Protection) Regulations 2006, reg 4 - Whether respondent must proceed to consider deportation only after subsidiary protection determination - Whether substantial grounds to challenge deportation order - A(BJS) (Sierra Leone) v Minister for Justice and Equality [2011] IEHC 381, (Unrep, Cooke J, 12/10/2011) and O(O) v Minister for Justice, Equality and Law Reform [2011] IEHC 165 & 175, (Unrep, Cooke J, 16/3/2011 and 4/5/2011) approved - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), regs 2, 3, 4, 7 - Refugee Act 1996 (No 17), ss 5, 13, 17 - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Council Directive 2004/83/EC, art 2 - European Convention on Human Rights 1950, arts 2 and 3 - Constitution of Ireland 1937, Art 40.3 - Leave refused (2011/129JR - Cooke J - 2/2/2012) [2012] IEHC 44

D(N)(Nigeria) v Minister for Justice and Law Reform

Facts: The applicant was a national of Nigeria whose application for refugee status was based on his claim to have been implicated in the death of a friend with whom he was travelling. The father of his friends was claimed by the applicant to have been the Governor of a Nigerian state. The claim had been rejected on the basis that the assertions made were uncorroborated and an appeal had been later withdrawn. An application for subsidiary protection had been subsequently refused, which had sought to clarify and correct untrue aspects of the asylum application, and a deportation order had been made. It was alleged that the Minister had proceeded to consider the making of the deportation order before the subsidiary protection application, in violation of the provisions of the Refugee Act 1996, as complemented by the European Community (Eligibility for Protection) Regulations 2006.

Held by Cooke J. that no case had been made out to warrant the grant of leave. The alleged grounds were predicated upon an assumption as to the factual background of the claims. The nature of the new country of origin information was simply of a general character and did not go any further in corroborating the claimed links.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Cooke delivered the 2nd day of February 2012

2 1. The applicant is a national of Nigeria who arrived in the State in February 2010 and claimed asylum. His application for refugee status was based on his claim to have become implicated in the death of a friend with whom he was travelling when the two of them were stopped by police and the friend was shot by the police. The friend's father was, he claimed, the deputy governor of a Nigerian state, and as such, a powerful and influential man and a notorious "godfather". It is said that notwithstanding the acknowledgement by the police that the applicant was entirely innocent, the friend's father held him responsible for his son's death and was determined to find and kill the applicant. He claimed that he had been advised by the police to flee.

3 2. The applicant's claim was the subject of a negative recommendation by the Office of the Refugee Applications Commissioner in a report under s. 13(1) of the Refugee Act 1996, dated the 11 ^th March, 2010. In effect, the report rejected the claim as lacking credibility because it was based upon the uncorroborated assertion of the applicant and it was considered implausible that if the son of a deputy state governor had been murdered the event would not be reported in the media.

4 3. An appeal to the Refugee Appeals Tribunal was lodged against the s. 13 Report, but was subsequently withdrawn upon legal advice on the basis that the source of the applicant's claim to a fear of serious harm was a personal threat from a particular individual and was not therefore one with a Convention nexus. On that basis an application for subsidiary protection was made to the respondent by letter dated the 3 ^rd August, 2010. The application for subsidiary protection was based upon the same facts and events relating to the murder of the applicant's friend and the subsequent threats from the friend's father as had formed the basis of the claim for asylum.

5 4. Although the appeal against the s. 13 Report was withdrawn the application for subsidiary protection purported to "firmly reject" the findings of lack of credibility reached in that report. The application for subsidiary protection also sought to "clarify and correct" a number of aspects of the asylum claim which were accepted as being untrue. He had, for example, originally claimed to have flown from Nigeria to Libya and, having travelled by road for some eighteen hours, to have boarded a ship that took him to Ireland. In fact he now says that he had travelled to Ireland by plane from Lagos to Dublin, with a stopover in Turkey. He had also first claimed that his travel to Ireland had been arranged and paid for by a pastor he had met and stayed with when he had fled from Port Harcourt. In the application for subsidiary protection he acknowledged that his travel had been arranged and paid for by an uncle through an agent who had provided the passport and travel documents and then taken them back on arrival. In addition, he acknowledged that a declaration of age submitted in support of his asylum application was not a genuine document, but had been obtained for him by a cousin in Nigeria - although the stated age was his true age.

6 5. The application for subsidiary protection was refused by a letter dated the 8 ^th December, 2010, which enclosed the memorandum containing the examination and determination of the application (the "Determination"). On the 13 ^th January, 2011, the respondent Minister made a deportation order in respect of the applicant. This was communicated to the applicant under cover of a letter dated the 18 ^th January, 2011, which also enclosed the memorandum by way of "Examination of file" (the "File Note") setting out the assessment of the statutory considerations under s. 3(6) of the Immigration Act 1999, which led to the making of the order.

7 6. In this judicial review proceeding as commenced on the 11 ^th February, 2011, the applicant seeks by way of primary reliefs orders of certiorari quashing the above decisions to refuse the application for subsidiary protection and to make the deportation order. When originally commenced, the application in respect of the decision refusing subsidiary protection was based upon a copy of the determination which transpired to be missing a number of pages. By order of the 21 ^st February, 2011, this Court granted leave to the applicant to amend the original statement of grounds so as to include four additional grounds which were said to arise out of the contents of a full text of that determination.

8 7. In the applicant's written submissions and at the hearing the main focus of the argument was directed at the issue considered at paragraph 28 et seq below namely, the alleged invalidity of the deportation order by reference to Regulation 4(5) of the 2006 Regulations. However, the application for leave to seek judicial review of the subsidiary protection refusal is not covered by the requirements of s. 5 of the Illegal Immigrants (Trafficking) Act 2000 (the "Act of 2000") so that the lower threshold of order 84 RSC applies rather than that of "substantial grounds" which does, of course apply to the challenge to the deportation order. For that reason and because there cannot be a validly enforceable deportation order until an application for subsidiary protection has been definitively determined, it is appropriate to deal first with the application in respect of the determination.

The Subsidiary Protection Determination

9 8. As explained above, by order to the Court of 21 ^st February, 2011, the applicant was granted leave to amend the statement of grounds so as to include four additional grounds L-O which were said to arise out of consideration of the full text of the determination following receipt of pages missing from the version originally furnished.

10 9....