H.T.K. (A Minor) v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 15 January 2016
• Neutral Citation: [2016] IEHC 43
• Docket Number: [2010 No. 489 JR]
• Court: High Court
• Date: 15 January 2016

BETWEEN

H. T. K. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND P. A. K.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

[2016] IEHC 43

[2010 No. 489 JR]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – The Refugee Act 1996 – Fear of persecution – Female Genital Mutilation – Rebuttal of presumption of availability of state protection – Whether the Refugee Appeals Tribunal obligated to stay the appeal before it pending the determination of judicial review proceedings

Facts: The mother of the minor applicant on behalf of the applicant sought an order of certiorari for quashing the determination of the second named respondent that the applicant should not be declared a refugee. The mother of the applicant alleged that the applicant would be subjected to forced marriage, compulsion to practice Islam and female genital mutilation (FGM) by the family of the applicant's father on return of the applicant to the country of origin. The mother of the applicant contended that the second named respondent erred in holding that the applicant was responsible to prove that she would not get the adequate state protection in the country of the origin. The applicant also asserted that there was a stay on already instituted appeal before the Refugee Appeals Tribunal pending the determination of the present proceedings.

Mr. Justice Mac Eochaidh refused to grant an order of certiorari in favour of the applicant. The Court held that there was no infirmity in the decision of the second named respondent. The Court observed that international refugee law was based on the premise that in general states were capable of protecting their citizens unless there were compelling circumstances to the contrary. The Court observed that the primary onus was on the applicant to prove that the state of origin failed to take requisite steps to protect the applicant. The Court held that the appeals before the Refugee Appeals Tribunal must be processed notwithstanding the pendency of the judicial review proceedings for the quick disposal of the case.

JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 15th day of January, 2016.

1 The applicant is a minor born in Ireland on the 5th June, 2006. She is a citizen of Nigeria whose mother, a failed asylum seeker, presented a claim for asylum on behalf of the applicant by completing an application for refugee status questionnaire on the 15th March, 2010. The applicant's mother said that the persecution faced by her daughter amounted to forced marriage, compulsion to practice Islam, the possibility of being tattooed and subject to female genital mutilation. Following the s. 11 interview the Minister's authorised officer prepared a report pursuant to s. 13 of the Refugee Act 1996. He described the persecution said to be feared by the applicant in the following terms:-

‘The applicant's mother alleges that she fears her daughter could be forced into an arranged marriage by her father when she reaches puberty, that her daughter won't be free to choose her own religion when she grows older, her daughter would not be allowed to have premarital sex, her daughter could be forced to get a tattoo and that her daughter could subjected to circumcision (FGM) if returned to Nigeria…’

2 At s. 3.3 of the s. 13 report the author says:-

‘The applicant's mother claims that she fears that her daughter, the applicant, could have problems described in Section 3.2 above if returned to Nigeria. However, there are several issues that serve to undermine the well foundedness of the applicant's claim.’

3 The Minister's official notes that the applicant's mother claims that her fears for her daughter all stem from her daughter's father and family. The report states:-

‘It is not reasonable that the applicant's mother would remain in contact with the applicant's father if he posed a genuine threat to her. The applicant's mother was asked why she is still in contact with the father of her child considering it was now easier for her to find the applicant in Ireland to which she replied “because I have his child with me'.’

The report states:-

‘Considering the applicant's claim and her mother's response, it is not credible that the applicant's mother would remain in contact with the applicant's father if she believed he would harm the applicant as claimed’.

4 As to the mother's asserted fear that her daughter will not be able to change her religion from Islam, the report concludes:-

‘The applicant's mother's assertion that she would be concerned that her daughter may not be able to change from Islam is undermined by the claim that she has decided to raise her child through Islam. The applicant's mother's insistence to remain in contact with the father of the applicant undermines her claim that it is a fear of hers that he will force the applicant to remain Muslim.’

The report also states:-

‘The applicant's mother claimed at section 8 interview that she feared her daughter could be forced to marry in Nigeria. The applicant's mother asserted that she is raising her child a Muslim and if the man she is going to be forced to marry is not a Muslim, her daughter would be forced to change her religion to that of her husband. However, the applicant's mother asserted in the questionnaire and at section 11 interview that her daughter will be forced to marry a Muslim man and that this would prevent her from changing from Islam in the future if she so wished. These contradictory fears expressed by the applicant's mother further undermines the applicant's claim.

The Minister's authorised officials conclude in respect of these matters by saying:-

‘Considering points 3.3.1 to 3.3.3 above, the applicant's claimed to fear of persecution is not credible. The applicants claim does not satisfy the objective element of fear based on persecution in her own country for the reasons stated in Section 2 of the Refugee Act 1996 (as amended).’

5 In these proceedings the applicant's first legal complaint is that the question of female genital mutilation was not addressed ‘ in any way under the heading of Well Founded Fear in the [s. 13 report].’

6 I disagree with the claim that the s. 13 report does not deal with the claimed fear of female genital mutilation. It is clear to me that the decision maker noted that all of the fears expressed on behalf of the minor applicant were associated with the applicant's father. The fears were not found to be credible because the applicant's mother maintained contact with the applicant's father. The decision maker, in rejecting the credibility of the applicant's mother, plainly did not accept that the mother had a bona fide fear in respect of any of the matters asserted on behalf of her daughter. In this sense the alleged fear of F.G.M. emanating from the applicant's father was disbelieved because it was not accepted that the mother feared harm from the applicant's father. I cannot detect an error of law/errors as to jurisdiction in the manner in which the decision maker addressed the alleged fear of F.G.M. in this case. If there is an error, it is of an evaluative nature only. Lest it be said that greater detail should have been included in the s. 13 report in respect of the alleged fear of F.G.M., my view is that an error of this order would not attract certiorari in view of the jurisprudence expressing the circumstances in which court intervention following first instance decision making in refugee cases is appropriate. The matter complained of may be the subject of an appeal to the Refugee Appeals Tribunal. I reject this ground of challenge.

7 Section 3.3.4 of the s. 13 report is entitled “ State Protection Including Internal Relocation'. The authors state:-

‘It is well established, as a matter of international refugee law and as a facet of national sovereignty, that (absent a situation of complete breakdown of state apparatus) there is a general presumption that states are capable of protecting their citizens; it is therefore incumbent upon the applicant for refugee status to provide clear and convincing evidence to rebut that presumption. In the absence of evidence a...