J.A. v Refugee Applications Commissioner

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 03 December 2008
• Neutral Citation: [2008] IEHC 440
• Court: High Court
• Docket Number: [2008 No. 1096 JR]
• Date: 03 December 2008

A (J) & A (D) (A Minor) v Refugee Applications Commissioner & Ors

BETWEEN

JUDICIAL REVIEW

J.A. AND D.A. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND J.A.)

APPLICANTS

AND

THE REFUGEE APPLICATIONS COMMISSIONER, THE REFUGEE APPEALS TRIBUNAL THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL, IRELAND

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

[2008] IEHC 440

No. 1096 J.R./2008

THE HIGH COURT

IMMIGRATION

Judicial review

Asylum - Procedure - Time limit - Extension of time- Leave to apply- Delay - "Good and sufficient reason for extending period" - Access to legal advice - Whether fact that applicant an infant good and sufficient reason for extension - Weight of substantive case - Credibility - Whether adverse credibility finding could be made by officer who had not conducted interview - Bias - Whether failure to afford an extension of time would amount to manifest injustice - The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360 applied; Reg v Stratford-on-Avon DC, Ex p Jackson [1985] 1 WLR1319 and Muresan v Minister for Justice [2004] 2 ILRM 364 followed - Rules of the Superior Courts 1986 (SI 15/1098), O 84 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(2)(a) - Extension of time refused (2008/1096JR - Irvine J - 3/12/2008) [2008] IEHC 440

A(J) v Refugee Applications Commissioner

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S13(6)(A)

REFUGEE ACT 1996 S2

IMMIGRATION ACT 1999 S3(2)(F)

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S5

REFUGEE ACT 1996 S13(5)

REFUGEE ACT 1996 S13(6)

REFUGEE ACT 1996 S15(2)

REFUGEE ACT 19961996 SCHED 2 PARA 14

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

A (F) & A (B) v REFUGEE APPEALS TRIBUNAL & ORS UNREP PEART 27.7.2007 2007/1/188 2007 IEHC 290

R v STRATFORD-UPON-AVON DISTRICT COUNCIL & ANOR EX PARTE JACKSON 1985 1 WLR 1319 1986 51 P & CR 76 1985 3 AER 769

O v REFUGEE APPEALS CMSR & ORS UNREP PEART 2.5.2008 (EX TEMPORE)

O'BRIEN v KEOGH 1972 IR 144

CONSTITUTION ART 40.3

MURESAN v MIN FOR JUSTICE & ORS 2004 2 ILRM 364 2003/38/9156

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

N (BN) v MIN FOR JUSTICE UNREP HEDIGAN 9.10.2008 2008 IEHC 308

A (K) & A (A) (A MINOR) v REFUGEE APPLICATIONS CMSR & ORS UNREP HEDIGAN 16.10.2008 2008 IEHC 314

BUGOVSKI & BUGOVSKA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP GILLIGAN 18.3.2005 2005/6/1153 2005 IEHC 78

E (BV) & E (ON) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP BIRMINGHAM 10.6.2008 2008 IEHC 230

KONADU v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP CHARLETON 23.1.2008 (EX TEMPORE)

IMOH & OKORO v REFUGEE APPEALS TRIBUNAL (BRENNAN) & MIN FOR JUSTICE UNREP CLARKE 24.6.2005 2005/31/6393 2005 IEHC 220

1 JUDGMENT of Ms. Justice Irvine delivered on the 3rd day of December, 2008 Factual Background

2 J.A., the first named applicant, is a national of Nigeria. She is the mother of the second named applicant D.A. J.A. contends that she fled Nigeria, having been accused of witchcraft, and arrived in Ireland on 8 ^th November, 2005. D.A. was born in Ireland two days later on 10 ^th November, 2005.

3 J.A. applied for refugee status and accordingly attended at the office of the first named respondent ("the Commissioner") for interview on 3 ^rd March, 2006. At the commencement of her interview J.A. was asked if she wished to have her son, D.A., included in her claim. The interview notes record as follows:-

"Break to enable applicant to query and organise registration of [D.] 10.20-10.50. Interpreter stayed with applicant while her options were explained. Applicant chose to have [D.] attached to her claim."

4 J.A. thereafter signed a report of the s. 11 interview which acknowledged her application to have D.A. included under her own application for refugee status. The report also suggests at p. 3 that she was asked whether she had any issues she wished to raise in relation to her son, D.A., to which she gave a negative response. The interview was conducted by Ms. Maureen O'Connor as an officer of the Commissioner.

5 By letter dated 20 ^th March, 2006, J.A. was advised that the Commissioner was recommending that neither she nor her dependent son be declared a refugee.

6 The report pursuant to s. 13(1) of the Refugee Act 1996 (as amended) ("the Act of 1996") refers at the outset to the first named applicant and states that the report covers, in addition, the application of the second named applicant who is also named. The report sets out at para. 3 the persecution claimed in the following terms:-

7 2 "3.1 The applicant alleges that her life was threatened by members of O'odua Peoples Congress (OPC), and also by members of her husband's family in Lagos who are in the OPC. The applicant alleges that her brother-in-law died in August, 2005 and that they accused her of killing him by poison and/or witchcraft."

8 In relation to persecution the report also notes the following allegation made by the first named applicant namely:-

9 2 "4.6 The applicant alleges that her alleged brother-in-law died in October, 2005. The applicant alleges that members of the OPC threatened to kill her and her unborn (at that time) child because they blamed her for her brother-in-law's death (question 21 of application questionnaire). The applicant alleges that her in-laws called her a witch and said she had poisoned her brother-in-law (Question 58 pp. 19/20 of Interview Notes)."

10 The s. 13 report was signed by Mr. Phelim Cassidy who had not conducted the s. 11 interview. At para. 4.11 of his report he referred to the fact that:-

"There are very serious doubts regarding the credibility of the applicant and the applicant's claim overall is very unconvincing. The applicant did not present any credible evidence that she and her child have a well founded fear of persecution on any grounds as defined by the Geneva Convention if she were to return to Nigeria. The basis for contention that the applicant is a refugee is very minimal."

11 The report concluded that the application should be considered in accordance with s. 13(6)(a) of the Refugee Act 1996, as amended, on the basis that the applicant had showed either no basis or a minimal basis for the contention that she was entitled to be considered a refugee. He expressed himself satisfied that the applicant had failed to establish a well founded fear of persecution in accordance with s. 2 of the Act of 1996 (as amended) and recommended that she should not be declared a refugee.

12 A notice of appeal was submitted by the Refugee Legal Services (RLS) to the Refugee Appeals Tribunal ("the Tribunal"). The letter enclosing the notice of appeal dated 11 ^th April, 2006, stated that the Refugee Legal Service had received instructions from J.A. that she did not wish to have the appeal scheduled before Mr. James Nicholson. Notwithstanding this request the applicant's appeal was duly determined by Mr. Nicholson who in his report dated 25 ^th June, 2007, advised that he had considered all relevant documentation. The letter enclosing the decision of the Tribunal referred to both the first and second named applicant and reported the decision of the Tribunal which was to the effect that neither should be declared refugees. The decision of the Tribunal was directed on its face and in its title to both the first and second named applicants.

13 In the report of the Tribunal member the applicants' claim for refugee status is recorded as having being based upon the fear of persecution arising from the accusation made against her by her husband's family and members of the OPC that she practiced witchcraft. The Tribunal went on to conclude that notwithstanding the submission furnished by the RLS, the applicants had not discharged the burden of proof to justify a determination that the recommendation of the Commissioner should be overturned.

14 By letter dated 17 ^th August, 2007, J.A. was advised of the Minister's decision to make a deportation order in relation to herself and D.A. Accordingly, J.A. was invited to submit representations for leave to remain in the State and also to seek subsidiary protection. Representations seeking humanitarian leave to remain in the State were submitted to the Minister by letters dated 3 ^rd September and 30 ^th October, 2007. The first of these letters expressed disappointment with the fact that J.A's appeal had been dealt with by Mr. Nicholson on behalf of the Tribunal. The letter advised the department that J.A. had specifically requested that Mr. Nicholson would not hear her appeal and requested the department to note that Mr. Nicholson was the subject matter of High Court proceedings wherein bias was alleged against him by a number of asylum seekers.

15 By application dated 4 ^th September, 2007, the first named applicant sought subsidiary protection pursuant to the European Communities (Eligibility for Protection) Regulations 2006. By letter dated 8 ^th July, 2008, addressed to both J.A. and D.A., the first named applicant was advised that her application including that of D.A. for subsidiary protection had been refused. The letter enclosed a copy of the report setting out the Minister's determination. The report concluded that J.A. and D.A. had not shown substantial grounds for believing that they were at risk of suffering serious harm if returned to Nigeria.

16 On 18 ^th September, 2008, the RLS forwarded the applicant's file to Séan Mulvihill and Co. Solicitors. By letter 22 ^nd September, 2008, J.A's new solicitor, Mr. Mulvihill, submitted fresh representations to the Department of Justice, Equality and Law Reform as to why J.A. should not be deported. By letter dated 24 ^th September, 2008 and received on 27 ^th...