Idiakheua v Minister for Justice

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Clarke
Judgment Date10 May 2005
Neutral Citation[2005] IEHC 150
Date10 May 2005

[2005] IEHC 150

THE HIGH COURT

[No. 395 JR/2004]
IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL

BETWEEN

VICTORIA IDIAKHEUA
APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL
RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S2

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PARA 100

HUMAN RIGHTS WATCH WORLD REPORT 2001

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

O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237

GASHI v MIN FOR JUSTICE & ORS UNREP CLARKE 3.12.2004

NOUNE v SECRETARY OF STATE FOR THE HOME DEPARTMENT UNREP UK CA 7.12.2000

NGUEDJDO v REFUGEE APPLICATIONS COMMISSIONER UNREP WHITE J 23.7.2003 (EX-TEMPORE)

HAUGHEY, IN RE 1971 IR 217

IMMIGRATION AND ASYLUM

Asylum

Refoulment - State protection - Well-founded fear of persecution - Whether adequate state protection available in country of origin - Zhuchova v Minister for Justice [2004] IEHC 414 (Unrep, Clarke J, 26/11/2004) followed - Nguedjdo v Refugee Appeals Commissioner (Unrep, White J, 23/7/2003) considered - Illegal Immigrants (Trafficking) Act 2000 (No 29) s.5 - Leave granted

Facts: The applicant sought leave to bring judicial review proceedings for the purposes of challenging a decision of the Refugee Appeals Tribunal (RAT) refusing to grant her refugee status on the basis that adequate state protection was available and she did not have a well founded fear of persecution for one of the reasons set out in s.2 of the Refugee Act, 1996. The applicant claimed that the RAT wrongly considered the evidence which was before it concerning state protection in the country of origin and further that the procedures followed by the RAT were in breach of the principles of natural justice by virtue of the fact that conclusions were reached on matters not put to the applicant.

Held by Clarke J. in granting leave:

1. That it was at least arguable that the decision of the RAT did not set out a sufficient rational basis for reaching a conclusion that state protection was adequate in the sense that the country concerned provided reasonable protection in practical terms.

2. That it was at least arguable that the failure of the RAT to deal with the applicant’s stated reason for her fear meant that the RAT failed to properly deal with a central part of the applicant’s case.

3. That it was at least arguable that the decision of the RAT was invalid having regard to the fact that the RAT did not put it to the applicant that her explanation for not having sought protection was not tenable.

Reporter: L.O’S.

1

JUDGMENT of Mr. Justice Clarke delivered the 10TH day of May, 2005.

2

1. The Applicant seeks to bring these proceedings for the purposes of challenging a decision of the Refugee Appeals Tribunal ("RAT") which was made on 31 st March, 2004. That decision followed from a hearing on 19 th February, 2004. As is required by s. 5 of the Illegal Immigrants (Trafficking) Act, 2000 the Applicant has sought leave to bring judicial review proceedings on notice to the Respondents and must establish substantial grounds.

2. Facts
3

The applicant was born in Ekpoma, Nigeria, on 5 th September, 1978. She came to Ireland on or about the 24 th July, 2002. In her affidavit grounding this application she deposes to the fact that when she was about 13 years old her father gave her to the chief of their village for marriage. She stayed with the chief for five years at the chief s house. When she was approximately 18 years of age she ran away from the chief's compound. After a few days she was caught and brought back by the chief's bodyguards. She was beaten and locked up in a small room for a number of days. After she was released she ran away to another village but was caught after two weeks and brought back to the chief's house. She was kept in a room blindfolded for a number of further days. The chief's bodyguards came and told her that the chief had told them to cut off her legs so she could not run away again. She was blindfolded again. She felt sharp pains over her legs and they were cut badly. For the following two year period (commencing in 1996 and lasting until 1998) she was treated with traditional medicine. However in 1998 she was assisted in escaping to Lagos by a pastor who had come to preach at the place where she was being treated. She remained with the pastor and his family in Lagos where she had an operation on her leg. In 2002, while in Lagos, she met a woman from her village in the marketplace. That woman said to her "you're here and the chief will come for you" or words to like effect. She states that in her view the fact that her whereabouts was now known by the chief was likely to lead to the chief coming to take her back to her village. She further deposed to the fact that she did not report any of the above to the police because the police cannot arrest a chief by virtue of his position. She also stated her belief that the pastor did report what happened to her but that the police did nothing.

3. The Process
4

Having applied for asylum the applicant's case was, in the ordinary way, initially considered by the Refugee Appeals Commissioner who prepared a report pursuant to s. 13 of the Refugee Act, 1996 as amended. That report is dated 20 th November, 2002 and it concluded by indicating that the applicant "has not established a case such as to qualify her for refugee status as defined in s. 2 of the Refugee Act 1996 (as amended)". In substance the basis for that decision was that, in part, the officer concerned doubted the veracity of the applicant's case in that it was indicated at paragraph 1.4 that it was possible that the true reason for the applicant coming to Ireland was for medical treatment. Furthermore it was suggested that it was unlikely that the chief concerned would still have been looking for the applicant four years after her final departure and that even if the chief's bodyguards had come looking for her at that time there was no reason why she could not have gone to the authorities for help. The Applicant appealed to the RAT.

5

The evidence given by the applicant before the RAT would appear to have been broadly in accordance with the evidence which she has deposed to on affidavit in these proceedings. In the course of its written determination the RAT set out a summary of the evidence given by the Applicant at p. 2 of its determination. There then followed a general statement of the applicable law in respect of, in particular, the burden and standard of proof and the definition of a well founded fear of persecution with which no exception is taken. The RAT came to the view that it was not satisfied that the applicant had a well founded fear of persecution for one of the reasons set out in s. 2 of the 1996 Act. The reasons are stated to be as follows:-

"The applicant said that she suffered a serious assault after been sold as a child bride. After the assault she went to Lagos where she lived without any difficulty for a period of four years. She decided not to make any complaint to the police concerning the assault on her. It would appear that state protection is available to the applicant. Paragraph 100 of the UNHCR Handbook states as follows:-"

"Whenever the protection of the country of nationality is available, and there is no ground based on a well founded fear for refusing it, the person concerned is not in need of protection and is not a refugee".

6

I also refer to the case of Hawa Baba Ahmed. This person was a child bride. She escaped from the man she had been sold to. When captured he amputated one of her legs. This man was tried and convicted. Whilst he only received a prison term the fact that he was brought before a court confirms that state protection is available in these circumstances.

7

Secondly, the applicant's fear must be well founded. The fact that the applicant was able to live quite openly in Lagos for four years without any harm coming to her does not indicate to me that her fear is well founded".

4. Analysis of Decision
8

The above represents the entire basis for the decision of the RAT in this case. It is not clear as to whether the decision maker fully accepted the evidence of the applicant. In that portion of his determination dealing with her evidence same is simply described as "summary of evidence as given by the applicant". It might be inferred that the reference in the operative part of the decision as quoted above to certain aspects of that evidence supports the view that the applicant's evidence was accepted. On the other hand it might be inferred from the final paragraph that the decision maker was not satisfied with the entirety of that evidence. I should comment that it would be preferable if determinations of the RAT set out the facts (or at least the important facts) of which the Tribunal is satisfied. Clearly in a case where the Tribunal is satisfied as to all of the evidence given by an applicant that matter can be simply stated. If, however, the Tribunal is not satisfied as to the veracity of any or all of the evidence given by or on...

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