I (v) & I (J)(S)

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 25 February 2011
• Neutral Citation: [2011] IEHC 85
• Docket Number: 613/JR/2010
• Court: High Court
• Date: 25 February 2011

I (V) (A MINOR) & I (SJ) v MIN FOR JUSTICE

BETWEEN

V. I. AND S. J. I. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

[2011] IEHC 85

613/JR/2010

THE HIGH COURT

IMMIGRATION

Deportation

Subsidiary protection - Unsuccessful asylum application - Country of origin information - Ethnic violence - Fear of violence from family members and in-laws - Fear of being forced marry person who is HIV positive - Risk to health and welfare - Credibility - Failure to seek asylum in first safe country - Whether Minister applied incorrect test to changed political system - Whether risk of HIV infection considered - Whether Minister misdirected himself on question of credibility - Whether ongoing situation of widespread and indiscriminate violence - Whether change of circumstances - Whether State protection sought - H(N) v Minister for Justice, Equality and Law Reform [2007] IEHC 277, [2008] 4 IR 452; Chan v Minister for Immigration and Ethnic Affairs [1989] 169 CLR 379; M(L) v Refugee Appeals Tribunal [2010] IEHC 132, (Unrep, HC, Cooke J, 16/2/2010); Ali Ahmed v Canada (Minister of Employment and Immigration) (1993) 156 NR 221 (FCA) and Obuseh v Minister for Justice, Equality and Law Reform [2010] IEHC 93, (Unrep, HC, Clark, 14/1/2010) considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Council Directive 2004/83/EC, article 4(4) - Relief refused (2010/613JR - Birmingham J - 25/2/2011) [2011] IEHC 85

I(V) v Minister for Justice, Equality and Law Reform

Facts: The first named applicant was a national of Kenya and a deportation order had been made against her and her son. A subsidiary protection application had also been made. She claimed that she and her husband had been attacked by a gang including her brother. The applicant alleged that a changed political situation put her at risk of indiscriminate violence which the Minister had not had regard to. The applicant alleged that the Minister had not adequately considered the risk of HIV infection to her and alleged that the Minister had misdirected himself on questions of credibility. The issue arose about the availability of State Protection and the entitlement of the applicant to subsidiary protection.

Held by Birmingham J. that the conclusions arrived at with regard to subsidiary protection were not at all surprising to the effect that it was incumbent on the first named applicant to seek State Protection and to persist in pursuing that application. The decision reached by the respondent was open to him in the circumstance warranting the refusal of the reliefs sought.

Reporter: E.F.

H (N) v MIN FOR JUSTICE & ORS 2008 4 IR 452

CHAN v MIN FOR IMMIGRATION & ETHNIC AFFAIRS 1989 169 CLR 379

M (L) & M (N) (A MINOR) v REFUGEE APPEALS TRIBUNAL & ORS UNREP COOKE 16.02.2010 2010 IEHC 132

ALI AHMED v CANADA MIN FOR EMPLOYMENT & IMMGRATION 1993 156 NR 221 FCA

HUMAN RIGHTS WATCH PUBLICATION BALLOTS TO BULLETS ORGANISED POLITICAL CRISIS & KENYAS CRISIS OF GOVERANCE VOL 20 NO 1A

DIR 2004/83 ART 4(4)

OBUSCH v MIN FOR JUSTICE & ORS UNREP CLARK 14.01.2010 2010 IEHC 93

DIR 2004/83 ART 4 REG 5(C)

1 JUDGMENT of Mr. Justice Birmingham delivered on the 25 day of February 2011

2 The first named applicant is a national of Kenya and is the mother of the second named applicant who was born in Kenya in 2001. Following her arrival in this country, the first named applicant, on her own behalf and on behalf of her son, applied for asylum. Her application was unsuccessful before the Refugee Applications Commissioner ('ORAC') and on appeal at the Refugee Appeals Tribunal ('RAT') stage. Subsequently, a deportation order was made in respect of both applicants dated the 20 ^th January, 2006. There followed unsuccessful attempts on behalf of the applicants to have the deportation orders revoked and to be readmitted to the asylum system. The applicants also sought subsidiary protection. Initially, the respondent was not prepared to consider the application for subsidiary protection as the deportation orders were made prior to the coming into effect of the European Communities (Eligibility for Protection) Regulations 2006, ( S.I. No. 518/2006). However, that issue was readdressed in the light of decisions of this Court and in particular in the light of the decision of Feeney J. in N.H. v. The Minister for Justice, Equality and Law Reform [2008] 4 I.R. 452. On the 30 ^th April, 2008, the application for subsidiary protection was renewed. This application made specific reference to the earlier application which had not been processed. This resubmission was accompanied by a considerable volume of country of origin information. Indeed, a feature of this case has been that at every opportunity volumes of country of origin information have been submitted. While at one level the diligence of the applicants' advisors is to be commended, I have noticed a growing tendency for advisors to swamp the department and its officials with vast quantities of material, by no means all of which is directly relevant. Submitting volumes of material gives rise to the risk that sections within it of real significance may be missed or overlooked. If that happens, at least a share of the responsibility will have to be borne by those who submitted masses of documentation on a non-selective basis. The observation that I make is a general one and there is no reason to believe that it has given rise to problems in the present case.

3 In summary, the claim advanced for asylum, which is essentially the claim advanced now for subsidiary protection, is put forward on the basis that the first named applicant is of Kikuyu ethnicity who entered into a relationship with and then married a man who was a member of the Luo tribe. She states that members of her own family associated themselves with the Mungiki sect. The Mungiki sect, or gang, is based within the Kikuyu community. It claims to be committed to upholding traditional Kikuyu values, but in fact is a feared and violent criminal organisation. The first named applicant says that she and her husband were attacked by a gang which included her brother and that in the course of the attack she herself was assaulted and raped. The first named applicant reported the incident to the police, but despite the seriousness of the complaint no action was taken in relation to it. Following this incident, which it is alleged occurred in December, 2001, the first named applicant, with her husband and son, relocated. However, her own family members discovered where they were and there was a further attack in the course of which her husband was killed. The first named applicant managed to escape, and with her son went to a new location, the village of Nazareth. However, in August, 2003, the family of her late husband discovered her whereabouts and went to the village where she was, in order to force her to marry her husband's brother in accordance with Luo tribal customs. Of note is that her brother-in-law, whom it was intended she would marry, had been diagnosed as HIV positive. It is said that in the aftermath of this, and as a result of this, the first named applicant fled Kenya and arrived in Ireland on the 19 ^th September, 2003.

4 On the basis of this summary, it will be apparent that the first named applicant alleges that she is at risk both from members of her own family, following their decision to become involved with the Mungiki group, and also from the family of her husband who were intent on following the tradition of wife inheritance. The relative significance given to these two sources of threat has shifted as the application has progressed through the system and this has been the subject of critical comment by counsel on behalf of the respondent. However, notwithstanding the shifting emphasis, from the outset both elements of the claim have been present. Counsel for the first named applicant made it clear that, in the context of the present judicial review proceedings before the Court, the issue that is of greater significance is the fear of being forced into marriage with someone who is HIV positive with the consequent risks to health and welfare that would entail.

5 There was one new issue of significance raised in the context of the reactivation of the application for subsidiary protection to which I should refer. A presidential election was held in December, 2007, which resulted in the incumbent Mwai Kibaki being declared re-elected. However, the legitimacy of the result was challenged by the opposition. There followed very serious violence in which many hundreds of people died, some estimates put the casualty level at 1,500, and many thousands more were displaced. Talks sponsored by the United Nations were convened, resulting in a peace agreement involving the creation of a power-sharing executive. The relevance of this is that the violence that occurred post-election was to a significant extent on ethnic lines pitting members of the Kikuyu and Kisii tribes against members of the Kalenjin and Luo tribes. It may be noted that periodic ethnic violence has sadly been a feature of post-independence Kenya. The first named applicant contends that as a Kikuyu woman, and a member of a family with links to the militant Mungiki group, who went on to marry across tribal lines, marrying a member of the Luo tribe, she is particularly vulnerable and particularly threatened in a situation of widespread and indiscriminate violence.

6 So far as the challenge to the decision to refuse subsidiary protection is concerned, three main grounds of challenge have been formulated by the applicants. In summary these are:

7 (1) that the Minister applied the wrong test to the changed political situation this relates to the consideration given...