I (E F) v Refugee Appeals Tribunal & Min for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Clark
• Judgment Date: 25 February 2009
• Neutral Citation: [2009] IEHC 94
• Court: High Court
• Date: 25 February 2009

[2009] IEHC 94

THE HIGH COURT

[No. 1457 J.R./2007]

I (E F) v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

BETWEEN

E.F.I.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, AND IRELAND

RESPONDENTS

ZHUCHKOVA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 26.11.2004 2004/51/11705 2004 IEHC 414

S (DVT) v MIN FOR JUSTICE UNREP EDWARDS 4.7.2007 2007/54/11621 2007 IEHC 305

ATANASOV v REFUGEE APPEALS TRIBUNAL UNREP SUPREME 26.7.2006 2006/3/519

E (M) v REFUGEE APPEALS TRIBUNAL UNREP BIRMINGHAM 27.6.2008 2008 IEHC 192

L (CL) v MIN FOR JUSTICE UNREP CLARK 21.1.2009 2009 IEHC 26

IMMIGRATION

Asylum

Judicial review - Leave - Credibility - Country of origin information - Fear of persecution on basis of membership of social group forced into prostitution - Internal relocation - Whether selective reliance on country of origin information - Whether failure to consider previous Refugee Appeals Tribunal decisions - Whether obligation to indicate why particular country of origin information preferred over conflicting information - Whether formula of words used by in decision of respondent wanting - Simo v Minister for Justice [2007] IEHC 305 (Unrep, Edwards J, 04/07/2007), Zhuchova v Refugee Appeals Tribunal (Unrep, Clarke J, 26/11/2004), A (PP) v Refugee Appeals Tribunal [2006] IESC 53 [2007] 4 IR 94 and E (M) v Minister for Justice [2008] IEHC 192 (Unrep, Birmingham J, 27/06/2008) considered; Lema v Minister for Justice [2009] IEHC 26, (Unrep, Clarke J, 21/1/2009) distinguished - Relief refused, no order for costs made against applicant (2007/1457JR - Clarke J - 25/2/2009) [2009] IEHC 94

I (EF) v Refugee Appeals Tribunal

Facts: the applicants sought leave to quash, by way of judicial review, the decisions of the first respondent to refuse their appeals against the recommendation of the Refugee Applications Commissioner that they be refused asylum and the decisions of the second respondent to refuse their applications for subsidiary protection and to deport them. The application was made 13 months outside the time limit set for instituting judicial review in respect of the decisions of the first respondent. They contended, inter alia, that the second respondent had applied the incorrect approach when assessing country of origin information and had breached the provisions of section 3 of the European Convention on Human Rights Act 2003 and the UN Convention on the Rights of the Child in refusing the applications for subsidiary protection and deporting them.

Held by Mr Justice Hedigan in refusing the applicant leave to seek judicial review:

1. That where there was inordinate delay in instituting judicial review applications seeking certiorari of a decision of the Refugee Appeals Tribunal the reasons proffered in explanation of the delay had to be exceptional for the Court to be satisfied that there was good and sufficient reason for extending the 14 day time limit set out in section 5 of the Illegal (Immigrants) Trafficking Act 2000.

2. That it was established, as a matter of international refugee law and as a facet of national sovereignty, that there was a general presumption that states were capable of protecting its citizens. It was therefore incumbent on an applicant for refugee status to provide clear and convincing evidence to rebut that presumption. In the absence of evidence that protection may not be reasonably forthcoming, there could not be said to be a failure of state protection where a government had not been given an opportunity to respond to a form of harm. It was thus open to the second respondent to draw from the country of origin information before him that state protection may reasonably have been forthcoming had it been sought by the applicants.

3. That it was not incumbent upon analysing officers in each and every case to assess the proportionality of a deportation or to engage in a balancing exercise as to the competing rights involved.

4. That it was sufficient for the second respondent to have acknowledged that the proposed deportation could engage the applicants’ rights under Article 8 of the European Convention on Human Rights and constitute an interference therewith.

Doubted: whether the requirement to expressly take into account the best interests of a child when assessing the proportionality of a proposed deportation under Article 8 of the European Convention on Human Rights applied at times in all circumstances.

Reporter: P.C.

1 The applicant seeks leave to apply for judicial review of the decision of the Refugee Appeals Tribunal (RAT), dated the 22 ^nd October, 2007, affirming an earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that she should not be granted a declaration of refugee status.

Factual Background

2 The applicant comes from Benin City in Edo State in Nigeria and sought asylum in the State on 13 ^th July, 2004. She states that she comes from a Christian family and was born in 1989. As her mother had died she and her sister were being brought up by their father and uncle. She has a limited education as a shortage of money lead to her withdrawal from school. She then started working in a hairdressing salon where, at age 15, she met a distant relative of her late mother who offered to take her to Zamfara in the north eastern part of Nigeria where she would provide for her and ensure an education. This part of Nigeria operates under the Sharia law system.

3 It appears that the relative who the applicant addressed only as "Madam" operated a brothel. The applicant was put to work as a prostitute for a period in excess of a year. She was not provided with any education and was not permitted to retain her earnings while she worked in the brothel and on the streets. She was arrested on the street and tried before a Sharia court where she had no legal representation and did not understand the language of the trial which she says was conducted in "Muslim". She was held in jail and learned that she was to be stoned to death for breaching the Sharia criminal code in relation to fornication or adultery. Her jailer arranged to liberate her and to provide her with her conviction papers in exchange for sex. When liberated she returned to Madam and was brought back to the south to Benin City. She was not permitted to contact her father as Madam feared that he would find out what had happened to his daughter and be angry with her. Madam therefore arranged for the applicant to travel on false papers to Ireland where she applied for asylum.

Procedural Background

4 The applicant applied for asylum upon arrival in the State on 8 ^th September 2007, claiming to fear persecution on the basis of membership of a particular social group being young girls forced into prostitution. She stated that she fears the sentence of the Sharia court if she were to be returned to Nigeria. She filled out her ORAC questionnaire in English and spoke English at her s. 11 interview with ORAC on 2 ^nd June, 2005. She produced a Nigerian passport in a different name. The passport had an Irish visa and was produced with her questionnaire and at the ORAC interview.

5 She also submitted a copy of her "certificate of conviction" from the Sharia court together with a school certificate sent to her by her uncle together with the envelope in which it was sent, to prove her identity. The applicant failed before ORAC which made several negative credibility findings in a lengthy and detailed s.13 report. The applicant was found not credible in her account of events in Zamfara. It was pointed out that country of origin information (COI) which was appended to the s. 13 report recorded that Sharia law applied only to Muslims and that State governments have not attempted to coerce non-Muslims to be tried by Sharia courts.

6 The authenticity of the document of conviction was doubted, as was the assertion that she did not know Madam's name or how she was related to her late mother. The fact that she could not pronounce the name of the town in Zamfara State where she spent over a year was adversely commented on. Similarly her fear of the verdict of the Sharia court, her escape and the fact that Madam would pay for her to come to Ireland were all found not credible.

7 The applicant appealed from the ORAC recommendation to the Refugee Appeals Tribunal (RAT). An oral appeal hearing took place at which the applicant told her story with some small variations. For instance she said that she was detained for one month before her trial as opposed to the three months she described to the ORAC officer at her s. 11 interview. She stated that she had been beaten by Madam when she was forced to work as a prostitute. She was questioned about how she was able to find her way back to Madam's house if she did not know the name of the town in Zamfara State and how she got there. She was also questioned about her return to Madam, her contact with her uncle and her travel arrangements. Reasons for the doubts expressed as to the authenticity of the "conviction document" were put to the applicant: it was written in English and had the wrong date for the particular penal code. She was asked why, if she feared Madam, she did not either report the matter to the police or seek the assistance of a woman's organisation. She replied that she did not trust the police and had no faith in any women's organisations. She said she did not want to return to her family as life was hard there and that here she had food, water and money. As might be expected as the applicant is a Christian, the issue as to whether Sharia law is applied to non-Muslims was raised.

8 A negative decision issued from the RAT in respect of the applicant; that decision is the subject of the present leave application. The analysis of the...