J.D.S. [Nigeria] v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 11 July 2012
• Neutral Citation: [2012] IEHC 291
• Docket Number: [No. 260 J.R./2010]
• Court: High Court
• Date: 11 July 2012

S (J D) [Nigeria] v Min for Justice & Ors

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

J. D S. [Nigeria]

APPLICANT

AND

P. T. D. S. (AN INFANT ACTING BY HIS MOTHER AND NEXT FRIEND J. D. S.) [Nigeria]

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2012] IEHC 291

[No. 260 J.R./2010]

[No. 261 J.R./2010]

THE HIGH COURT

IMMIGRATION LAW

Asylum

Natural justice - Fair procedures - Absence of discernible rationale - Failure to state reasons - Prohibition of refoulement - Fear of persecution - Relocation - Credibility - Whether consideration of applicant's rights inadequate , unlawful and in breach of natural justice and fair procedures - Whether consideration of prohibition of refoulement flawed - Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701; Rawson v Minister for Defence [2012] IESC 26, (Unrep, SC, 1/5/2012); Clare County Council v Kenny [2008] IEHC 177, [2009] 1 IR 22 and Ahuka v Minister for Justice (Unrep, Cooke J, 20/6/2012) considered - Refugee Act 1996 (No 17), ss 5, 13 - Immigration Act 1999 (No 22), s 3 - Criminal Justice (United Nations Convention Against Torture) Act 2000 (No 11), s 4 - European Convention on Human Rights, art 8 - Decision quashed (2010/260 & 261JR - Cooke J - 11/7/2012) [2012] IEHC 291

S(JD) v Minister for Justice, Equality and Law Reform

Facts The applicants, who were mother and child respectively had been granted leave to seek an order of certiorari by way of judicial review quashing deportation orders made in respect of them on the single ground that the respondent”s consideration of the applicants” rights pursuant to section 5 of the Refugee Act 1996 was inadequate, unlawful and in breach of natural justice and fair procedures. Essentially, it was argued that the respondent failed to disclose his reasons for finding that refoulement was not an issue in the case of the applicants and that their repatriation to Nigeria would not be contrary to s. 5 of the Act of 1996. The analysis in the decision of section 5 of the Act of 1996 began with a summary of the first named applicant”s claim and was followed by a series of quotations from various sources of country of origin information. This was then followed by the opinion that repatriation to Nigeria would not be contrary to s. 5 of the Act of 1996. The applicants relied on the Supreme Court decision in the case of Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 I.R. 701 to support their claims. It was urged on behalf of the respondent that if the court accepted the ground had been made out it should nevertheless exercise its discretion to refuse relief because of significant new information, which had come to the attention of the respondent since the decision to deport was made. This new information arose out of an application for a visa by the same person who had been deported as the spouse of the first name applicant and the application indicated that the first named applicant herein was not in fact within the jurisdiction at all and was the spouse of the visa applicant and was present in Nigeria with three children. The first named applicant”s solicitor swore an affidavit confirming he had personally met the applicant in the jurisdiction and the first named applicant swore an affidavit averring that she had no contact with her husband since his deportation and had no responsibility for the information contained within his application for a visa.

Held by Cooke J. in granting the application: That it was not clear precisely why the respondent formed the opinion that repatriating the first named applicant would not be contrary to s. 5 of the Act of 1996. There was no linking explanation in the decision of the respondent between the country of origin information quoted and the finding that refoulement was not an issue in this case and consequently it was not possible to understand why the respondent formed the opinion that the applicant could be repatriated without risk that the prohibition of refoulement would be violated. In the circumstances of this claim it was not necessary for the court to decide whether the applicant or her husband was telling the full truth in respect of the visa application. Notwithstanding the potentially serious implications of the information contained in the visa application it was not necessary or appropriate for the court to exercise its discretion to withhold relief in respect of the contested decisions to deport.

REFUGEE ACT 1996 S5

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S3(6)

CRIMINAL JUSTICE (UN CONVENTION AGAINST TORTURE) ACT 2000 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT ART 8

RAWSON v MIN FOR DEFENCE UNREP SUPREME 1.5.2012 2012 IESC 26

CLARE CO COUNCIL v KENNY 2009 1 IR 22

AHUKA v MIN FOR JUSTICE UNREP COOKE 20.6.2012

Mr. Justice Cooke

1 By order of the Court (O'Keeffe J.) of the 20^th December, 2011, the applicants in these two cases were granted leave to seek judicial review with a view to quashing deportation orders made in respect of them on the 9^th February, 2010 by orders of certiorari.

2 The Court granted leave to apply for judicial review upon a single ground expressed as follows:-

The consideration by the first named respondent of the applicants' rights pursuant to s. 5 of the Refugee Act1996, as amended, (Prohibition ofrefoulement) is inadequate, unlawful and in breach of natural justice and fair procedures. Without prejudice to the generality of the foregoing the first named respondent does not disclose, as he was obliged to do in the said consideration, the reasons for refoulement not having to be found to be an issue in the case of the applicant. The applicant is entitled to a decision in this regard from the terms of which she can discern the reason for the first named respondent coming to the conclusion that the repatriation of the applicants to Nigeria would not be contrary to s. 5 of the Refugee Act 1996, as amended. The failure to provide reasons and/or a rationale for the decision renders the issue of the deportation order unlawful and vulnerable to review.

3 In essence, the case made in support of this ground on behalf of the applicants is that the relevant part of the "Examination of File" memorandum containing the analysis and reasons for the making of the deportation orders is similar to that considered by the Supreme Court in the case ofMeadows v. Minister for Justice, Equality and Law Reform [2010] 2 I.R. 701, upon which reliance is placed. As explained below, it is submitted that it is impossible to discern from the conclusion expressed in relation to the consideration of the prohibition on refoulement in s. 5 of the Act of 1996, what the rationale of the Minister was and what his reasons were for concluding that the prohibition would not be infringed if the applicants were repatriated to Nigeria.

4 Counsel for the respondents, on the other hand, argues that when the file note is read as a whole and in light of the actual case put forward on behalf of the applicants in the representations for humanitarian leave to remain, the rationale and the reasons for the conclusion on this issue are perfectly clear and that furthermore the substantive content of the assessment for the purpose of s. 5 is clearly different from that which was before the Supreme Court in the Meadows case.

5 In addition, it is urged on behalf of the Minister that even if the Court were inclined to accept the ground as having been made out in favour of the applicants, it should nevertheless exercise its discretion to refuse relief because of significant new information which has come to the attention of the Minister since the challenged decisions had been made. This new information is said to cast considerable doubt on the good faith and truthfulness of the mother in these cases as further explained at the end of this judgment.

6 The adult applicant in case 2010 No. 260 J.R. ("the mother") is a Nigerian national who claims to have married her husband Daniel Sunny Idowu in Nigeria in 2006 and he is said to have arrived in the State shortly afterwards staying for two weeks. She claimed to have arrived in the State at the end of October 2008. Both claimed asylum. She gave birth to her husband's child, the minor applicant in case 2010 No. 261 J.R., on the 2^nd January, 2009.

7 The mother's claim for asylum was based upon an alleged fear of persecution for religious reasons if returned to Nigeria. She claimed that her father was a Muslim and that she had been brought up in that religion. In 1998, she met her husband who was a Christian and in spite of the disapproval of her father, she left her father's home in 2006, moved to live with her husband, and married him without her father's consent. She claimed that when she became pregnant in January 2008, she decided to tell her father in the hope that he had changed his mind, but he forced her to drink a potion causing her to have a miscarriage. She said that she and her husband were threatened by her father. When she moved away to her sister-in-law's home she said her father sent a man after her who threatened to kill her if she did not move back to her father's house. She returned to her husband's home where she...