H.O. and Others v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 28 November 2008
• Neutral Citation: [2008] IEHC 405
• Court: High Court
• Date: 28 November 2008

[2008] IEHC 405

THE HIGH COURT

[No. 344 J.R./2008]

O (H) (A Minor) & Ors v Min for Justice

JUDICIAL REVIEW

IN THE MATTER OF

THE IMMIGRATION ACT 1999 AND THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

AND

THE EUROPEAN CONVENTION ON HUMAN RIGHTS

BETWEEN

H.O., E.O. (A MINOR)

AND

C.A.O. (A MINOR) BOTH SUING BY THEIR MOTHER AND NEXT FRIEND H.O.

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S17

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

REFUGEE ACT 1996 S5

K (G) & ORS v MIN FOR JUSTICE & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

O v MIN FOR JUSTICE & ORS [BABY O CASE] 2002 2 IR 169 2003 1 ILRM 241 2002/3/501

N (FR) & ORS v MIN FOR JUSTICE & ORS UNREP CHARLETON 24.4.2008 2008 IEHC 107

I & ORS v MIN FOR JUSTICE UNREP FEENEY 30.1.2008 2008 IEHC 23

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380

IMMIGRATION ACT 1999 S3(6)

KOZHUKAROV & ORS v MIN FOR JUSTICE & ORS UNREP CLARKE 14.12.2005 2005/35/7380 2004 IEHC 424

DADA v MIN FOR JUSTICE UNREP O'NEILL 3.5.2006 2006/14/2921 2006 IEHC 140

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

O (G) & ORS v MIN FOR JUSTICE UNREP BIRMINGHAM 19.6.2008 2008 IEHC 190

O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237 1990/8/2141

N (BJ) v MIN FOR JUSTICE & ORS UNREP MCCARTHY 18.1.2008 2008 IEHC 8

KAMIL v REFUGEE APPEALS TRIBUNAL & ANOR UNREP MCCARTHY 27.8.2008 (EX TEMPORE)

MWIZA v REFUGEE APPEALS TRIBUNAL & ANOR UNREP MCCARTHY 22.10.2008 (EX TEMPORE)

KONGUE v REFUGEE APPEALS TRIBUNAL & ORS UNREP MCCARTHY 29.10.2008 (EX TEMPORE)

BUCUMI v REFUGEE APPEALS TRIBUNAL & ORS UNREP MCCARTHY (EX TEMPORE)

IMMIGRATION

Deportation

Judicial review - Leave - Humanitarian leave - Human sacrifice - Country of origin information - Refusal of refugee status -Criticism of report to minister - Material furnished to minister - Whether failure to engage with country of origin information - Whether obligation to give reasons for acceptance of some parts of information and rejection of other parts - Prohibition on refoulement as legal right - Whether fair procedure required minister to give reasons - Whether open to court to go behind reasoning - Whether special or changed circumstances - Decision of Supreme Court - Whether decision of High Court had effect on nature of right against refoulement - Whether substantial grounds for granting leave - Anxious scrutiny - GK v Minister for Justice [2002] 1 IR 418, Baby O v Minister for Justice [2002] 1 IR 169, N v Minister for Justice [2008] IEHC 107 (Unrep, Charleton J, 24/4/2008), I v Minister for Justice [2008] IEHC 23 (Unrep, Feeney J, 30/1/2008), Kouaype v Minister for Justice [2005] IEHC 380 (Unrep, Feeney J, 9/11/2005), Kozhukarov v Minister for Justice [2005] IEHC 424 (Unrep, Clarke J, 14/12/2005), Dada v Minister for Justice [2006] IEHC 140 (Unrep, O'Neill J, 3/5/2006), GO v Minister for Justice [2008] IEHC 190 (Unrep, Birmingham J, 19/6/2008), O'Keeffe v An Bord Pleanala [1993] 1 IR 39 and N v Minister for Justice [2008] IEHC 8 (Unrep, McCarthy J, 18/1/2008) considered - Refugee Act 1996 (No 17), s 5 - Leave refused (2008/344JR - McCarthy J - 28/11/2008) [2008] IEHC 405

O(H) v Minister for Justice, Equality and Law Reform

1 1. This application for leave to seek judicial review was commenced by originating notice of motion on 28 ^th March, 2008, and comes before me for leave to seek inter alia an order of certiorari quashing a decision of the respondent in respect of the first and second named applicants to make deportation orders against them, (which latter are dated the 5 ^th March, 2008). There is a Statement Grounding an Application for Judicial Review of the same date and affidavits have been sworn by the first named applicant and Laurena Gradwel, on behalf of the Minister. I propose to set out briefly the history of the matter.

2 2. According to the records of the Office the Refugee Applications Commissioner, H. and her son E. arrived in the jurisdiction on 8 ^th May, 2005, and she claimed declarations in accordance with s. 17 of the Refugee Act 1996, (as amended) for herself and on behalf of her son E. Her daughter, C., was born in the State on 16 ^th June, 2006. In due course, H. completed a questionnaire for the purpose of the applications for the benefit of the Commissioner, and subsequently was interviewed on his behalf. She was interviewed by James Walsh on behalf of the Commissioner on 18 ^th August, 2006, and a recommendation was made on behalf of the Commissioner to the Minister to refuse the declarations, on 23 ^rd August, 2006. A notice of appeal was entered to that refusal, dated 13 ^th September, 2006 (over H.'s signature) and 15 ^th September, 2006, (over her solicitor's signature).

3 3. Comprehensive submissions on behalf of the applicants (as they are described) were made to the Tribunal by Messrs James Waters, Solicitors, on 19 ^th September, 2006, and these submissions referred to, and under cover thereof, were furnished to the Tribunal, two documents comprising "Country of Origin Information", namely, what appears to be a hard copy of an article available on the internet and published by "Christianity Today International" as well as a document published by the "Immigration and Refugee Board of Canada". The former seems to be dated December, 2004 and the latter 22 ^nd July, 2005. For whatever reason, they were not furnished to the Commissioner prior to his decision. In any event, the Notice of Appeal expresses the grounds for seeking refugee status to be "religion" and it appears that H. says that she fled Nigeria for the purpose of escaping from her husband's family, in circumstances where they wished to make a human sacrifice of E. and her then unborn child (C. as she was named). She, of course, contends that she and the children to whom I have made reference will be subjected to persecution (as that is understood in the present context) should they return and, of course, in particular that her children may be killed.

4 4. The document published by Christianity Today is entitled "Human Sacrifice Redux" and refers to a police raid in Anambra State (in largely Christian southern Nigeria) due to persistent reports of human sacrifice, in the course of which skulls and fresh corpses were found. It refers to the fact that a "minority" of adherents of traditional African religion engage in ritual killings and apparently children are killed (in South Africa) for body parts. The report further refers to the fact that the body of a boy (apparently of a West African victim) was found floating in the Thames in 2002, and it was conceived that the sacrifice may have been to certain ancestral gods of the Yoruba, Nigeria's second largest tribe. Details are afforded of persecution and fear on the part of Christians and a Pastor was quoted, as to the number of people sacrificed, to the effect that "it will be like asking me to count the grains of sand on the seashore".

5 5. I do not know the provenance of the group which produces this document but, in any event, that published by the Immigration and Refugee Board of Canada is from an institution of high standing. The edition in question pertains to the "Prevalence of Ritual Murder and Human Sacrifice and Reaction by Government Authorities (March 2000/July 2005)".

6 6. Criticism has been made of the report made to the Minister for the purpose of allowing him to make a decision as to whether or not deportation orders should be made on the basis that it consists in substantial part in quotations, and extracts from various country of origin reports without overt analysis of a sufficiently detailed kind, (something to which I will refer again below). I do not propose to quote extensively from any of the country of origin reports in the papers before me, but seek merely to give some limited flavour thereof, so far as the relevant ground of alleged fear of persecution is concerned. The Canadian report makes a distinction between ritual murder and human sacrifice the former being a particular class of homicide defined by law and, apparently, involving the participation of a community in a formalised manner, the later being individual acts performed after consultation with, say, a witch doctor and designed to call the favour of the gods on the individual. Reference is made therein to newspaper reports (in the context of the body found in the Thames), and to a named pathologist who, apparently, said that, "human sacrifices are performed for a small group of people seeking supernatural powers". The report further quotes a named academic to the effect that most valuable for ritual murder purposes are the very young and fertile. As to prevalence, it is said that "academics, human rights activists and media sources say that ritual murders are common throughout Nigeria" and apparently the phenomenon is extensively reported in the press there. It seems, however, that the authorities are active in attempts to combat the evil, the media reports referring, apparently, to "police investigations, post mortems, arrests and interrogations". Apparently, a newspaper report appeared on 18 ^th February, 2005, as to the fact that the three persons were sentenced to death for the murder of a child. It appears that a large number of arrests followed the investigation into the activities at Anambra State (referred to above) and that at the time of writing of that report, investigation was still pending. Reference was further made to what was described as "the most widely known cases of ritual killings" apparently in Imo State in 1996. Reports apparently appeared on the 2 ^nd August, 2002, and the 24 ^th January, 2003, and a number of persons...