MA v Minister for Justice

• Jurisdiction: Ireland
• Judge: MR. JUSTICE RYAN,
• Judgment Date: 12 November 2010
• Neutral Citation: [2010] IEHC 519
• Date: 12 November 2010
• Court: High Court
• Docket Number: [2009 No. 842 JR]

[2010] IEHC 519

THE HIGH COURT

[No. 842 J.R./2009]

A (M) (Nigeria) v Minister For Justice & Ors

JUDICIAL REVIEW

BETWEEN

M. A. [NIGERIA]

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S11B(B)

REFUGEE ACT 1996 S11B(E)

IMMIGRATION ACT 1999 S3(6)

CRIMINAL JUSTICE (UN CONVENTION AGAINST TORTURE) ACT 2000 S4

EUROPEAN COURT OF HUMAN RIGHTS ART 8

IMMIGRATION ACT 1999 S3(11)

HJ (IRAN) & HT (CAMEROON) v SECRETARY OF STATE FOR HOME DEPARTMENT 2010 UKSC 31

KOUAYPE v MINISTER FOR JUSTICE UNREP CLARKE 09.11.2005 2005/35/7364 2005 IEHC 380

KOZHUKAROV & ORS v MIN FOR JUSTICE & ORS UNREP CLARKE 14.12.2005 2005/35/7380 2004 IEHC 424

REFUGEE ACT 1996 S16(17)

IMMIGRATION LAW

Deportation

Revocation - Refusal to revoke deportation order - Fundamental rights - Freedom of association - Freedom of expression - Sexual orientation - Homosexual persons - Whether risk of persecution -Whether refusal to revoke deportation order in compliance with fundamental rights - Whether proper consideration afforded to material submitted by applicant - Kouaype v Minister for Justice [2005] IEHC 380, [2011] 2 IR 1 and Kozhukarov v Minister for Justice [2005] IEHC 424, (Unrep, Clarke J, 14/12/2005) approved; HJ (Iran) v Home Secretary [2010] UKSC 31, [2011] 1 AC 596 followed - Refugee Act 1996 (No 17) - Immigration Act 1999 (No 22), s 3 - United Nations Convention Relating to the Status of Refugees 1951 - Certiorari granted (2009/842JR - Ryan J - 12/11/2010) [2010] IEHC 519

A(M) v Minister for Justice, Equality and Law Reform

1 JUDGMENT OF MR. JUSTICE RYAN,delivered on the 12th November, 2010

Background

2 1. According to his account the applicant was born in western Nigeria and is a Christian. In 2002 he moved with his parents to south western Nigeria where he continued his education, attending school until May, 2006. In all he had 12 years of education. At school he met another student and from 2004 entered a two year homosexual relationship with him. On the 25 ^th August, 2006 his boyfriend's brother discovered them naked in his boyfriend's room. The brother threatened to report them and he and his friends seriously beat and punished them. Later that day when the applicant phoned his boyfriend, the brother answered and said they had "gotten rid" of his boyfriend and threatened that the applicant would be next. He feared that his parents would disown him or kill him if they knew he was gay because homosexuality is against their ethnic and religious beliefs - they are both Christiansand members of a secret cult. His boyfriend's parents would kill him for sacrifice as homosexuality is also against their cult and their traditional beliefs. If he went to the police they would arrest, torture, abuse and imprison him because homosexuality is illegal in Nigeria. The applicant said he could be subjected to the death penalty and could not relocate within Nigeria because the cult would trace him using spiritual powers and the police would also trace him. He went to Lagos where he contacted an agent who set about arranging a visa and a plane ticket to Ireland. The applicant already had a passport issued in 2005. He returned home after arranging his travel and remained there without difficulty until the 10 ^th September, 2006, when he packed some clothes, stole money from his father's cupboard, took a bus to Lagos and from there flew overnight to Dublin transiting for 40 minutes in Paris. His agent told him to destroy everything including his visa upon arrival. He had no difficulty at immigration and a taxi driver in Dublin directed him to the Commissioner's office.

3 2. At interview the applicant was asked how, if he moved elsewhere in Nigeria, people would know he was gay; he said "There is no way I will live there without showing my sexual orientation." It was put to him that according to COI, homosexuality is tolerated in larger cities if not made public; he again replied that there was no way people would not find out about his homosexuality. The Commissioner made a negative recommendation in his case in December, 2006 highlighting a number of credibility issues relating to:-

4 · His inability to state his boyfriend's address;

5 · His failure to make any attempt to contact his boyfriend after being told by his brother that they had "gotten rid" of him;

6 · His inability to say what business his father was in;

7 · His claim that the spiritual powers of the cult would help to locate him elsewhere in Nigeria;

8 · His inability to describe the visa he had destroyed after arriving in Ireland; and

9 · Reference was made to ss. 11B (b) and (e) of the Refugee Act 1996.

10 3. The Commissioner referred to a 2004 British-Danish FFM report which indicated that, although homosexuality is illegal, few cases have been tried in the courts and there is usually little attention in the press and among the public about such cases. The report stated that "Homosexuals living in the larger cities of Nigeria may not have reason to fear persecution, as long as they do not present themselves as homosexuals in public." Reference was also made to a 2006 U.K. Home Office report which stated that although homosexual acts were illegal, "gays and lesbians in Nigeria were mainly suffering because of discrimination and stigmatisation, not because of legal persecution" and that "the situation for gays and lesbians in Nigeria was not considered an important issue among local human rights NGOs". It was also found that his fears were of a localised nature and that internal relocation would be a viable option in the light of the small number of arrests made.

11 4. In early 2007 the applicant appealed to the Refugee Appeals Tribunal. Detailed written submissions furnished in March, 2007 argued inter alia that the applicant would be suppressed in his self-expression as a human being in Nigeria. It was argued that he has a right not to be persecuted for legitimate human behaviour and that he could not reasonably be expected to relocate within Nigeria. The hearing in March, 2007 resulted in a negative decision but it was vitiated as a result of judicial review proceedings.

12 5. A new appeal in January, 2008 yielded another negative decision, in March, 2008. The Tribunal Member noted a series of credibility issues:-

13 · It was not credible that he would have returned home after arranging his travel and remained there until 10 ^th September after his homosexuality was uncovered and it was difficult to believe his parents or his boyfriend's parents would not have approached him during that time;

14 · It was difficult to believe he would not have known his boyfriend's address given the frequency of his attendance there;

15 · It was difficult to believe he could not name the cult of his boyfriend's parents given his close relationship with his boyfriend for two years and given that he knew the cult was against homosexuals;

16 · It was difficult to believe he was unaware of the national debate that was taking place in Nigeria in 2006 in relation to same-sex marriages and the freedom of association of homosexuals following the introduction of a restrictive bill in parliament, the strong mobilisation of different sectors of civil society and the "public hysteria" the bill created.

Subsidiary Protection

17 6. In May, 2008 the applicant applied for subsidiary protection claiming that, if returned, he would be at risk of torture or inhumane treatment or punishment. Many of the written submissions made to the Tribunal in March, 2007 were repeated and it was argued that there were numerous errors in the Tribunal's decision particularly relating to the assessment of credibility. Reliance was placed on the COI reports furnished to the asylum authorities and a further six reports were appended.

18 7. In January, 2009 the Minister decided that the applicant was not eligible for subsidiary protection. The following matters cited in a 2008 British-Danish FFM mission report were noted:

19 · The death penalty for homosexuality applies only in the 12 northern States where Sharia law operates. 20 people were charged between 2003 and 2007 and 10-12 were sentenced to death by stoning but those sentences had been overturned by federal courts. Sentences of amputation had also been imposed but none implemented since 2001.

20 · The Nigerian Criminal Code prohibits acts of sodomy between two men, with a maximum sentence of 14 years' imprisonment;

21 · Gay men are often arrested and jailed until they can bribe their jailors to release them;

22 · Lagos - the most cosmopolitan city - has enacted anti-gay legislation;

23 · There was a rising trend of conservatism and intolerance in Lagos State even in relation to women's clothing;

24 · A civil liberties NGO spokesman said homosexual acts or behaviour are tolerated as long as they are carried out discreetly and in private but homosexuals would be arrested for offending public decency for showing affection in public. He also said that violent attacks on homosexuals were not a common occurrence;

25 · The public has little confidence in the police who are perceived to be ineffective and corrupt but the public believes that the police would provide protection for homosexuals threatened with violence.

26 · There are a number of support groups for homosexuals in Nigeria. The groups keep a low profile but members still fall victim to societal intolerance and hostility and some had been the target of personal attacks because they opened their doors to suspected gay people. At least two members of one group had died from complications related to discrimination they had suffered and members of another group had been shunned for defending the rights of gay people.

27 8. The examining officer concluded "The above extract from the report indicates that...