Meadows -v- Minister for Justice Equality and Law Reform, [2010] IESC 3 (2010)

Docket Number:419/03
Party Name:Meadows, Minister for Justice Equality and Law Reform
Judge:Fennelly J.

THE SUPREME COURTNo. 419/2003Murray C.J.

Kearns P.

Denham J.

Hardiman J.

Fennelly J.







IRELAND AND THE ATTORNEY GENERALRespondentsJUDGMENT of Mr. Justice Fennelly delivered the 21st day of January 2010.

  1. This appeal is brought pursuant to a certificate granted by the High Court (Gilligan J) under section 5(3)(a) of the Illegal Immigrants (Trafficking) Act, 2000 ("the 2000 Act"). The certified point of law is as follows:

    "Whether or not in determining the reasonableness of an administrative decision which affects or concerns constitutional rights or fundamental rights it is correct to apply the standard set out in O'Keeffe v An Bord Pleanála [1993] 1 IR 39."

    Having obtained that certificate, the appellant filed a full notice of appeal dated 10th December 2003. All grounds of appeal relate essentially to the certified point.

  2. The administrative decision mentioned in that certificate is that of the first-named respondent (whom I will call the Minister) to make a deportation order, following exhaustion of the usual asylum procedures, in relation to the appellant, a Nigerian national.

    The facts and immigration procedures

  3. The Appellant is a 26-year-old Nigerian national. She arrived in the State in December 1999 when she was seventeen years of age. She sought refugee status.

  4. Her application was initially dealt with in accordance with the procedures applied by the State at that time, described as the "Hope Hanlon procedures". Those procedures were subsequently replaced by the Refugee Act, 1996 ("the 1996 Act") when that Act came into force in November 2000.

  5. The Appellant claimed that she had been compelled to flee Nigeria following violent conflict between the Yoruba tribe (of which she was a member) and the Hausa tribe. She said she feared that, if returned to Nigeria, she would be killed by her father's former business partner who, she said, had threatened that he would do so in revenge for the death of his son. The Appellant also claimed that, if returned to Nigeria, she would be forced into a marriage arranged by her father and would, as a result, be subjected to female genital mutilation ("FGM"). Her allegations in relation to this last matter, FGM, are central to the present appeal.

  6. By letter dated 30th June, an official informed the Appellant on behalf of the Minister that she had not demonstrated a well-founded fear of prosecution for Convention reasons and that her application for refugee status was refused. She appealed to the Asylum Appeals Unit. Her appeal came before a member of the Appeal Tribunal on 3rd April 2001. The Tribunal heard evidence regarding the practice and prevalence of FGM in Nigeria.

  7. The Refugee Appeals Tribunal on 12th June 2001 decided, pursuant to section 16(2)(a) of the Refugee Act 1996 as amended, that the appellant was not a refugee within the meaning of section 2 of the Act and affirmed the earlier decision. In dealing with the appellant's fear of FGM, the Tribunal accepted without question that this was an abhorrent practice and that it amounted to torture. Having reviewed the facts of the appellant's case, the Tribunal expressed the view that she had not established a credible connection between her circumstances, on the one hand, and forced marriage and FGM on the other. The Tribunal notified the appellant of the decision by letter dated 9th August 2001.

  8. By letter dated 18th September 2001, the Minister notified the appellant that, following the investigation of her application for refugee status, in accordance with section 17(1)(b) of the Refugee Act, 1996, he was refusing to make a declaration granting her the status of a refugee and that her right to remain temporarily in the State in accordance with section 9(2) of that Act had expired. By the same letter, the Minister gave her notice that, as a result of the decision refusing her refugee status, he proposed to make a deportation order in respect of her pursuant to the power given to him by section 3 of the Immigration Act, 1999. He informed her of her right to make representations setting out any reasons why she should be allowed to remain temporarily in the State.

  9. Solicitors for the appellant, in a lengthy letter dated 8th October 2001, made representations to the Minister. They had, in fact, already written to him on 10th September in advance of the Minister's letter of 18th September. The letter claimed, inter alia, that removal of the appellant to her country of origin would contravene Article 3 of the European Convention on Human Rights, which prohibits the practice of "torture, inhuman and degrading treatment and punishment." It repeated the appellant's claims that she would be subjected to forced marriage followed by FGM. The letter claimed that the appellant would suffer further hardship by reason of the lack of family relationships, if returned to Nigeria. It also advanced more general humanitarian grounds relating to the present circumstances and future prospects of the appellant in the State. It appeared to set out all relevant factors which the Minister was being asked to take into account. It emphasised, in particular, the request to be permitted to submit expert evidence on the appellant's country of origin. The overwhelming thrust of the representations related to the claimed likelihood of exposure of the appellant, on return to Nigeria, to forced marriage accompanied by subjection to FGM.

  10. The Minister did not communicate further with the appellant or her solicitors prior to making his decision. The Minister's decision to make a deportation order took the form of a formal order dated 12th July 2002 accompanied by a letter of the same date. The formal order recites the Minister's powers. It states:

    "AND WHEREAS the provisions of section 5 (prohibition of refoulement) of the Refugee Act 1996 and the provisions of the said section 3 [of the Immigration Act, 1999] are complied with in the case of [the appellant];

    Now, I, [name and title of the Minister] in exercise of the powers conferred on me by the said subsection (1) of section 3, hereby require you the said [appellant] to leave the State within the period ending on the date specified in the notice served on or given to you under subsection 3(b)(ii) of the said section 3 pursuant to subsection (9)(a) of the said section 3 and to remain thereafter out of the State."

  11. The Minister's accompanying letter of 12th July 2002 explained the decision in the following terms:

    "I am directed by the Minister for Justice, Equality and Law Reform to refer to your current position in the State and to inform you that the Minister has decided to make a deportation order in respect of you under section 3 of the Immigration Act, 1999. ……

    In reaching this decision the Minister has satisfied himself that the provisions of section 5 (prohibition of refoulement) of the Refugee Act 1996 are complied with in your case.

    The reasons for the Minister's decision are that you are a person whose refugee status has been refused and, having had regard to the factors set out in section 3(6) of the Immigration Act, 1999, including the representations made on your behalf the Minister is satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your case as might tend to support your being granted leave to remain in this state."

  12. Following a request from the appellant's solicitors, the Minister wrote on 23rd July 2002 enclosing what were described as the "conclusions and recommendations made to the Minister on foot of which he made the deportation order…" The key document was headed: "Examination of File under Section 3 of the Immigration Act 1999." It concluded with a recommendation of an Executive Officer that the Minister sign the deportation order. There was a large set of accompanying documents.

  13. Charles O'Connell, an Assistant Principal Officer in the Minister's Department swore in his affidavit in the judicial review proceedings that the Minister had been provided with the entire file from the time of the appellant's initial application for asylum and that this included considerable country-of-origin information and material from the United Nations Commission on Human Rights including extensive information relating, inter alia, to FGM. Mr O'Connell swore that the Minister had "ample information available to him to make decisions including any questions relating to abuse or risk of abuse of human rights and refoulement and humanitarian considerations."

  14. The prohibition of "refoulement" reflects Article 33 of the Geneva Convention of 1951 relating to the Status of Refugees. Section 5 of the Refugee Act, 1995 gives it effect as follows:

  15. -(1) A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.

    (2) Without prejudice to the generality of subsection (1), a person's freedom shall be regarded as being threatened if, inter alia, in the opinion of the Minister, the person is likely to be subject to a serious assault (including a serious assault of a sexual nature).

  16. There can be no doubt that, as was accepted by the Refugee Appeals Tribunal, FGM is an abhorrent practice. For present purposes, it suffices to say that it arguably comes within the scope of section 5 of the Refugee Act, 1995, specifically the section's reference to "serious assault (including a serious assault of a sexual nature)." No suggestion to the contrary was...

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