F.F. v The Minister for Justice Equality & Law Reform
| Jurisdiction | Ireland |
| Judge | Ms. Justice Finlay Geoghegan |
| Judgment Date | 25 October 2017 |
| Neutral Citation | [2017] IECA 273 |
| Docket Number | Appeal No. 2015 555 CA |
| Court | Court of Appeal (Ireland) |
| Date | 25 October 2017 |
[2017] IECA 273
THE COURT OF APPEAL
Finlay Geoghegan J.
Irvine J.
Hedigan J.
Appeal No. 2015 555 CA
Where an applicant for subsidiary protection is considered by the decision maker to be a national of Country A, and also to have been granted refugee status and lived in each of Countries B and C, may the application be decided upon the basis that he is a stateless person under the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. 518 of 2006) (“2006 Regulations”)? That is the primary issue on this appeal.
The appeal is from an order of the High Court (McDermott J.) made on 17 th April, 2015, for the reasons set out in a written judgment of that date ( [2015] IEHC 245) refusing leave to apply by way of judicial review seeking inter alia an order of certiorari quashing the decision issued by the respondent by letter dated 10 th December, 2010, refusing to grant subsidiary protection to the applicant.
The facts upon which the application for leave was based are not in dispute and may be summarised as follows.
The facts pertaining to the applicant accepted by the decision maker are as stated by him in his applications for refugee status and subsidiary protection in this jurisdiction. He was born in Cameroon in 1965. He worked as a journalist and with an NGO and claimed to have experienced persecution in Cameroon, including arrest, detention and torture. He fled to Nigeria in 1999 and was recognised as a refugee there in 2001. He claims to have been threatened by a Cameroonian diplomat in Nigeria, and in 2002 fled to Mali via Ghana. He was granted refugee status in Mali in 2003 and included amongst the documents produced in this jurisdiction was a refugee card issued in Mali on 15 th March, 2005 which was stated to be valid until 14 th March, 2008, identifying him to be of Cameroonian nationality.
In Mali he was involved in an organisation that was opposed to female genital mutilation. In June, 2005, through contacts made at a meeting in Mali, he obtained funding to attend the 36 th session of the Rights of Women and Children in Strasbourg. He claimed that authorities in Mali refused to sign his UNHCR papers permitting him to travel to Strasbourg unless they received a bribe. He also claimed that he was arrested and detained prior to leaving Mali, concerning a complaint that he had unlawfully defamed the police and the Commission Nationale Chargée des Réfugiés au Mali ( CNCR). However, he travelled to Strasbourg in July, 2005; made a presentation about alleged abuses in Mali (and possibly elsewhere) and claimed that he was subsequently threatened on behalf of the government of Mali. He arrived in Ireland and claimed refugee status on 2 nd September, 2005. In his initial application he stated his nationality as “stateless? {Cameroonian}”. His ASY1 Form indicated his nationality as Cameroonian as did the initial card granted him by the Irish authorities.
In the application for refugee status questionnaire he identified his nationality as Cameroonian.
The Refugee Applications Commissioner recommended that the applicant should not be declared to be a refugee. In the Report of the Refugee Applications Commissioner dated 18 th May, 2006 Cameroon is stated to be his country of origin. Mr F was also stated to be a national of Cameroon, however, para. 3 of the report refers to his refugee status in Mali and then states that “for the purposes of this report, Mali can be considered Mr [F's] country of habitual residence.”
He appealed to the Refugee Appeals Tribunal with the assistance of the Refugee Legal Service. In the notice of appeal, in relation to his nationality, it was stated “Cameroon (country of habitual residence: Mali)”.
The Tribunal was satisfied that the applicant was not a refugee for the reasons set out in a decision dated 17 th April, 2007. In that decision his nationality is stated to be Cameroonian. However, its analysis of the applicant's claim related to whether he had a well-founded fear of persecution if returned to Mali. It was against country of origin information for Mali that his claim was determined.
The next application made with the assistance of the Refugee Legal Service was an application for subsidiary protection and an application for leave to remain. In the application for subsidiary protection his nationality is stated to be “stateless”. The basis of the claim for subsidiary protection was (as summarised at para. 1.8) that the applicant “is at risk of serious harm and execution in all of his counties of former habitual residence, Cameroon, Nigeria and Mali.” Later the application stated
“The Applicant does not have access to any protection in Cameroon, Nigeria or Mali as he is stateless, as was accepted by the Office of the Refugee Applications Commissioner. It was accepted by the Presenting officer and the section 13 report that the applicant's place of habitual residence was Mali. I refer to para. 104 of the UNHCR Guidelines [which] acknowledges that the appellant can fear more than one place of formal [sic] habitual residence, as is the current position. The applicant has abandoned Cameroon, Nigeria and Mali as he cannot avail of any protection in these countries and cannot as a result return to any one of them.”
The application also referred to his entire asylum file, including the earlier applications to the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal and the documents submitted therewith.
The application for subsidiary protection was refused in a decision dated 10 th December, 2009. The determination made by the Assistant Principal following the detailed recommendation and conclusion from the Executive Officer dated 4 th December, 2009 was:
“I agree with the above recommendation. Substantial grounds have not been shown for believing that [F.F.] would face a real risk of suffering serious harm if returned to either Nigeria or Mali.”
The Executive Officer had similarly reached the conclusion that substantial grounds had not been shown for believing that the applicant would face a real risk of suffering serious harm if returned to either Nigeria or Mali. The grounds upon which an order of certiorari was sought relate to an alleged legal error in the approach taken in determining the application, and in particular a failure to determine the application in accordance with the 2006 Regulations. The determination, at its outset, records the nationality of the applicant as “Cameroon (has refugee status in Mali and in Nigeria)”. The basis of the application is recorded thus:
“The applicant claims a fear of serious harm in Cameroon for reasons of ‘death penalty or execution’ and ‘torture or inhuman or degrading treatment or punishment of an applicant in the country of origin’.”
In recording the serious harm claim there are references to the applicant's fears in relation to his treatment in Cameroon, Nigeria and Mali. The determination then identifies the main issues to be examined as being:
(i) would the applicant face a threat of serious harm by way of death penalty or execution and/or torture or inhuman or degrading treatment or punishment, if returned to Cameroon,
(ii) would the applicant face a threat of serious harm by way of death penalty or execution and/or torture or inhuman or degrading treatment or punishment, if returned to Nigeria,
(iii) would the applicant face a threat of serious harm by way of death penalty or execution and/or torture or inhuman or degrading treatment or punishment, if returned to Mali,
(iv) would the applicant be able to avail of state protection in any of the above three countries.
The determination then turns to assessments of facts and circumstances and purports to consider “[r]elevant facts relating to the country of origin, including laws and regulations and the manner in which they are applied (Reg 5(1)(a)) including the availability of ‘protection against serious harm’ as defined in (Reg 2(1))”. This is done by considering in turn Cameroon, Nigeria and Mali. In relation to Cameroon the determination states:
“The applicant claims that if he is returned to Cameroon, he is at risk of being subjected to torture or inhuman and degrading treatment. However it is noted from the applicant's own account that he was granted formal refugee status in both Nigeria, and later in Mali. There is no evidence to suggest that the applicant's refugee status in either jurisdiction has been revoked. In light of this, it is acknowledged that both jurisdictions accepted that the applicant feared some form of persecution in Cameroon and accepted that he had protection needs in respect of his country of origin, Cameroon, and both jurisdictions duly granted protection status in the form of refugee status.
In light of the above, I will not be examining the applicant's claim of serious harm in respect of his fears of being returned to Cameroon.”
The applicant's fear of serious harm if returned to Nigeria are then considered and then separately and subsequently Mali. In respect of each, the conclusion is that by reason of his recognition in each as a refugee, he had previously been granted protection by that state and therefore that “it is reasonable to assume that the [Nigerian or Malian] State would continue to provide the applicant with protection if he was returned there”. The issue of serious harm by death penalty or execution was also considered, and a negative conclusion reached, in relation to Nigeria and Mali.
The determination also considered the applicant's actual or potential citizenship (Reg. 5(1)(e)) and states:
“The applicant claims to have been...
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