M.A.R.A (Nigeria) (infant) v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr Justice Charleton
• Judgment Date: 12 December 2014
• Neutral Citation: [2014] IESC 71
• Docket Number: [S.C. No. 9 of 2012]
• Court: Supreme Court
• Date: 12 December 2014

Between

M A R A (Nigeria) (An infant suing by her mother and next friend O A)

Applicant/Appellant

and

The Minister for Justice and Equality, the Refugee Applications Commissioner, Ireland and the Attorney General

Respondent/Respondent

[2014] IESC 71

Denham CJ, Hardiman J, Clarke J, Dunne J, Charleton J

Record number 2011/757/JR Appeal number 9/2012

An Chúirt Uachtarach The Supreme Court

Asylum - Infant asylum seeker - Mother and next friend - Fear of persecution on return - Female circumcision in Nigeria - Challenge to decision regarding refugee status - Judicial review - Statutory right to appeal - Refugee Appeals Tribunal - Subsidiary protection - Appropriate remedy - Refugee Act 1996 - Mootness - Anonymity of litigants

Facts The infant asylum seeker was born in Ireland in 2010. Her mother and next friend came to Ireland from Nigeria in August 2005. Upon arrival she made an application for asylum however the claim was rejected by the Refugee Applications Commissioner. She subsequently and separately made applications for asylum on behalf of her two daughters. The claims were rejected in July 2011. The applicant"s mother had an alleged fear of persecution should her daughter be returned to Nigeria. She sought state protection as she feared she would be subjected to female circumcision in Nigeria. The applicant"s mother therefore sought leave from the High Court challenging the decision by way of judicial review. The trial judge concluded the High Court challenge was bound to fail because the applicant was not deemed a refugee under s.13 Refugee Act 1996. He said it could be properly cured by statutory appeal to the Refugee Appeals Tribunal but that judicial review was not the appropriate remedy. The mother therefore exercised her statutory right of appeal to the Refugee Appeals Tribunal and in addition sought subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006. Both were rejected owing to the credibility of the claim made.

Held The applicant"s mother argued that she had a well-founded fear of persecution in relation to the invasive practice of female circumcision. However, the judge maintained that a fair and thorough consideration of the credibility of evidence had taken place. The judge said given that findings of fact were made against the applicant and given that the decision of the Refugee Applications Commissioner was affirmed under section 16A of the 1996 Act by the Refugee Appeals Tribunal, any consideration as to whether the learned trial judge was or was not correct in leaving the applicant to her appeal remedy under legislation, as opposed to not striking out her judicial review application in the High Court, was entirely moot. The court referred to the applicable legislation considered in the asylum application process. Section 2 of the Refugee Act 1996 gives the definition of what a refugee is and section 5 of the 1996 Act communicates the principle of non-refoulement. Section 19 of the 1996 Act refers to the anonymity of litigants. The judge ruled since the applicant and her mother had applied for refugee status in the past, albeit unsuccessfully, they remained entitled in judgment and in any report of the court proceedings to anonymity under section 19 of the Refugee Act 1996.

-Appeal dismissed

Mr Justice Charleton

Judgment of Mr Justice Charleton delivered on the 12th day of December 2014

1 The applicant/appellant is an infant asylum seeker who was born in Ireland in late 2010. Her mother, who is also the next friend in this case, came to Ireland from Nigeria in August 2005 and applied for asylum for herself. That claim was rejected by the Refugee Applications Commissioner in November of that same year. Subsequently and separately, applications were made by her on behalf of her two daughters. On 12th July, 2011, the claim of this applicant/appellant was rejected by the Refugee Applications Commissioner. The grounds put forward by her mother for seeking the State"s protection on her behalf consisted of a claimed fear by her mother that she would be subjected to female circumcision in Nigeria and that pressure to undergo this invasive procedure would come from her family and neighbours and that defiance would have unpleasant consequences from a magic practitioner, apparently called 'the Mascurate'. Leave was sought before the High Court to challenge by way of judicial review the finding refusing this infant applicant/appellant a recommendation that she be declared a refugee. This is an appeal from that judgment and order of Cooke J dated 19th December, 2011 (Unreported, High Court, Cooke J, 19th December, 2011) wherein he acceded to a motion from the respondents to dismiss the applicant/appellant"s claim for leave to commence a judicial review; holding that a High Court challenge was bound to fail. The trial judge held that whatever alleged defects there might be claimed to be in the analysis of the application by the Refugee Applications Commissioner, under section 13 of the Refugee Act 1996 as amended ('Act of 1996'), in deciding that this applicant/appellant was not a refugee, this would be most properly cured by a statutory appeal to the Refugee Appeals Tribunal and that, in all the circumstances, judicial review was not an appropriate remedy. Paragraphs 9 and 10 of his judgment state his reasoning:

It is now well settled in law that where the statutory appeal is available and has been invoked in good time, it is only in exceptional cases that the High Court will entertain an application for judicial review of the s. 13 Report and only then when the report is shown to have some potentially independent consequences for an applicant which is incapable or inapt to be dealt with by the statutory appeal.

Having regard to the fact that the only issue in this case is the reality of the alleged fear that this infant might be exposed to a risk of forcible circumcision against the wishes of her mother if returned to Nigeria, the Court is satisfied that no valid reason has been advanced as to why the statutory appeal in this case would be inadequate, ineffective, or inconvenient. In practical terms, as this child has never been to Nigeria and whose existence may not even be known to her mother"s husband (who has in any event disappeared), the only appealable aspects of the s. 13 Report will appear to turn upon the possibility of a general threat to the child of circumcision in Nigeria and the availability of local protection against the specific alleged threat from the family or the village, if the mother and child relocated elsewhere. These are issues that turn upon consultation of country of origin information at this stage and are clearly dealt with adequately and more conveniently by the statutory appeal.

2 While that judgment was appealed to this Court, no stone was left unturned on behalf of the applicant/appellant: on her behalf, her mother also exercised the statutory right of appeal to the Refugee Appeals Tribunal and, in addition, later sought subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006. The appeal to the Refugee Appeals Tribunal was rejected and so was the application for subsidiary protection. The former decision was notified to the applicant/appellant through her mother by letter dated 30th April, 2012 which also enclosed the relevant report. The trend of reasoning by the Refugee Appeals Tribunal focused particularly on the credibility of the claim made. The following quotation indicates the approach taken:

The Applicant"s mother indicates that she fears that [her infant daughter] will have to be circumcised in Nigeria and that were the Applicant to go to Nigeria she would have to see a "Mascurate" or be harmed by the Mascurate. The Applicant"s mother previously sought asylum for the Applicant"s sister [redacted] but no mention was made of a fear of [female genital mutilation] or a fear of the Mascurate in relation to [her, who] as a female sibling is at equal risk from the tradition of [female genital mutilation] or the Mascurate. If the Applicant"s mother"s fears of [female genital mutilation]/the Mascurate were genuine it would be reasonable to expect that she would have held these fears for [her other daughter] and previously have articulated same. The Applicant"s mother was unable to provide a reasonable explanation as to why she had not previously mentioned these fears for her [other daughter]. The aforegoing seriously undermines the well-foundedness of the Applicant"s claim.

3 In the notice of appeal, dated 9th January 2012, against the judgment and order of Cooke J it is contended, in several forms of expression, that the report of the Refugee Applications Commissioner was not overtaken by the decision, on appeal, of the Refugee Appeals Tribunal. In particular, it is claimed that the earlier report had 'potentially independent consequence' for the applicant/appellant; that it had an 'independent existence'; and had 'ongoing significant consequence' for this infant. In addition, it is sought to be argued that the decision of the learned trial judge striking out the judicial review leave application was incorrect. Since it is contended on behalf of the respondents that the statutory appeal from the Refugee Applications Commissioner to the Refugee Appeals Tribunal and the decision of that tribunal effectively rendered historical the earlier decision, the first issue to be decided is whether this judicial review leave application is moot. If it is, it would be inappropriate to consider the correctness of the learned trial judge"s decision to strike out the leave application on the basis of the existence of an alternative remedy. Finally, the Court has sought the assistance of counsel on the question of...