I (G O) v Min for Justice & Refugee Applications Commissioner

• Jurisdiction: Ireland
• Judge: Mr Justice Cooke
• Judgment Date: 15 October 2009
• Neutral Citation: [2009] IEHC 463
• Court: High Court
• Docket Number: [No. 673 J.R./2008]
• Date: 15 October 2009

[2009] IEHC 463

THE HIGH COURT

[No. 673 J.R./2008]

I (G O) v Min for Justice & Refugee Applications Commissioner

BETWEEN/

G.O.I.

APPLICANT

AND

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

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION REGS SI 518/2006 REG 5(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION REGS SI 518/2006 REG 5(1)(A)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION REGS SI 518/2006 REG 5(1)(C)

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

REFUGEE ACT 1996 S11A(3)

EEC DIR 2004/83 RECITAL 6

EEC DIR 2004/83 RECITAL 7

TREATY OF ROME 1957 ART 249

REFUGEE ACT 1996 S17

REFUGEE ACT 1996 S16(6)

REFUGEE ACT 1996 S17(1)

IMMIGRATION

Asylum

Remedy - Judicial review prior to appeal - Substantial grounds - Whether deficiency incapable of being cured by statutory appeal - Fear of persecution - Country of origin information - Whether fear of prosecution well founded - State protection - Alleged failure to take into account the mandatory considerations - Whether report unlawful - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), regs 2 and 5(1) - EEC Directive 2004/83/EEC - Treaty of Rome 1957 - Refugee Act 1996 (No 17), s 11 and 13 - Leave refused (2008/673JR - Cooke J - 15/10/2009) [2009] IEHC 463

I (G O) v Minister for Justice

EX TEMPORE Judgment of

Mr Justice Cooke

delivered 15th day of October, 2009

1 In this application for leave the primary issue before the Court is not so much whether the grounds proposed to be raised in the statement of grounds are substantial grounds in the sense of s. 5 of the Illegal Immigrants (Trafficking) Act2000 but whether, if one or more of them are substantial grounds, they go to such fundamental illegalities in the section 13 report, which is the subject of this challenge, that they can and ought to be remedied by certiorari prior to the completion of the asylum procedure in the pending appeal before the Tribunal.

2 This is a case in which the applicant's claim to a fear of persecution if returned to Nigeria was negatively assessed by the Commissioner's authorised officer upon the basis of the availability of State protection and internal relocation. The applicant is a 22 year old woman from Nigeria who says that she was offered a job by an acquaintance of her family in Nigeria, a "Mama G", but then found herself trafficked to Ireland and put into prostitution. She managed to escape after two weeks and then claimed asylum. She fears that if she returns to her family in Nigeria Mama G will find her and target her for reprisal. The factual aspects of that account are not put in question in the section 13 report of the authorised officer, Ms. Bell. She does, however, rely on certain documentation by way of country of origin information to reach the view that the applicant's expressed fear is not well founded because, if returned, State protection would be available to her and that she could also avoid the reprisals of Mama G by relocating elsewhere in that country.

3 The documentation in question was apparently consulted by the authorised officer at or prior to the section 11 interview because it is referred to as being put to the applicant in the section 13 report. The documentation is referred to at section 3.3.1 of the report.

4 This is not, therefore, a case in which it is claimed that there was a breach of fair procedures in that country of origin information was consulted after the interview and that the applicant was deprived of an opportunity to comment on it or to rebut it. The case made here is that the authorised officer chose to rely selectively on and to cite in the report only those extracts from the documentation which supported the negative conclusion. It is argued that any balanced view of the documentation could only conclude that the document in question supported rather than contradicted the applicant's assertion that State protection and internal relocation would not be available or feasible.

5 It must be said that, on this point, counsel for the applicant, in the written submissions, makes a forceful case by identifying specific passages in the document in question which run counter to those chosen for quotation by the officer in the report. To quote but one example:

"In some cases the trafficked persons may possibly be at risk of ill treatment or revenge if the trafficked person returns to Nigeria before the Madam or agent has been satisfied with payments."

6 It is arguable, therefore, that if this was a challenge to a conclusion contained in a Tribunal appeal decision it might well be a substantial ground for arguing that the conclusion flew in the face of the country of origin information and was sufficiently unbalanced or irrational as to require annulment; but that is not the issue now before this Court.

7 The issue is whether, notwithstanding the force of the attack on the assessment of the country of origin documentation, it is necessary to intervene by way of judicial review and to interrupt the completion of the asylum process by deciding that the Refugee Appeals Tribunal ought to be dispossessed of the pending appeal.

8 Clearly, in so far as the grievance advanced is directed at the use and appraisal made by the authorised officer of the country of origin documentation and to the extent that it is argued that a different conclusion ought properly to have been reached, the matter is eminently apt for appeal. It is a matter of urging a new...