E (E) (minor) v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice McMahon
• Judgment Date: 16 January 2009
• Neutral Citation: [2009] IEHC 5
• Date: 16 January 2009
• Court: High Court
• Docket Number: [No. 1283 JR/2006]

[2009] IEHC 5

THE HIGH COURT

[No. 1283 JR/2006]

E (E A) & E (O P) (A Minor) v Refugee Appeals Tribunal & Min for Justice

BETWEEN

E.A.E., O.P.E. (A MINOR) SUING THROUGH HIS NEXT FRIEND AND MOTHER E.A.E.

APPLICANTS

AND

REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S11

GENEVA CONVENTION ART 1(A)(2)

REFUGEE ACT 1996 SCHED 3

REFUGEE ACT 1996 S16

IMOH v REFUGEE APPEALS TRIBUNAL UNREP CLARKE 24.6.2005 2005/31/6393

MUIA v REFUGEE APPEALS TRIBUNAL (O'GORMAN) CLARKE 11.11.2005 2005/40/8300 2005 IEHC 362

CANADA (AG) v WARD 1993 2 SCR 689

B (GO) v MIN FOR JUSTICE & ORS BIRMINGHAM 3.6.2008 2008 IEHC 229

OKEKE v MIN FOR JUSTICE & ORS UNREP PEART 17.2.2006 2006/46/9892 2006 IEHC 46

DARJANIA v REFUGEE APPEALS TRIBUNAL (O'BRIEN) & MIN FOR JUSTICE UNREP MCGOVERN 7.7.2006 2006/14/2948 2006 IEHC 218

O (H) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP HEDIGAN 19.7.2007 2007/45/9473 2007 IEHC 299

IMMIGRATION

Asylum

Judicial review - Leave - Female genital mutilation - Credible claim - State protection - Finding that failure to approach state for protection defeated claim -Whether obligation to seek state protection - Alleged failure to have regard to totality of country of origin information - Option of relocation - Presence of genuine subjective fear - Valid basis for subjective fear -Whether decision arguably unreasonable - Obligation on state to provide protection - Rebuttable presumption that state capable of protecting citizens -Whether substantial grounds for review - Imoh v Refugee Appeals Tribunal [2005] IEHC 220 (Unrep, Clarke J, 24/6/2005), Muia v Refugee Appeals Tribunal [2005] IEHC 363 (Unrep, Clarke J, 11/11/2005), Canada (Attorney General) v Ward [1993] 2 SCR 689, G(B O) v Minister for Justice [2008] IEHC 229 (Unrep, Birmingham J, 3/6/2008), Islam v SSHD [1999] 2 All ER 545, Okeke v Minister for Justice [2006] IEHC 46 (Unrep, Peart J, 17/2/2006), Darjania v Refugee Appeals Tribunal [2006] IEHC 218 (Unrep, McGovern J, 7/7/2006) and O(H) v Refugee Appeals Tribunal [2007] IEHC 299 (Unrep, Hedigan J, 19/7/2007) considered - Refugee Act 1996 (No 17), s 2 - Leave granted on multiple grounds (2006/1283JR - McMahon J - 16/01/2009) [2009] IEHC 5

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

Facts: the applicants sought to quash the decision of the respondent on the basis, inter alia, that it contained a material error of fact regarding the objective country conditions in relation to female genital mutilation; that the conclusion that state protection might reasonably have been forthcoming was unreasonable; that the respondent applied an incorrect approach to the assessment of state protection and; that the respondent had considered irrelevant matters in assessing state protection, namely protection from non governmental organisations.

Held by Mr Justice McMahon in granting the applicants leave to seek judicial review that the conclusion reached by the respondent was arguably unreasonable in light of the country of origin information relied upon. That the proper test to be adopted in assessing the availability of state protection was whether it would reasonably have been forthcoming which would depend on the circumstances of the case and the country of origin information available to the decision maker.

Reporter: P.C.

JUDGMENT delivered by

Mr. Justice McMahon

the 16th day of January, 2009

1 The applicant seeks leave to bring judicial review proceedings seeking various orders and declarations including an order ofcertiorari to quash the decision of the first respondent dated the 3^rd October, 2006 that the applicant failed to establish a well founded fear of persecution as defined under s. 2 of the Refugee Act 1996 (as amended) and a recommendation that the applicant should not be declared a refugee.

2 The applicant is a Nigerian national who left her country of origin on the 28^th March, 2006 and arrived in this state on 29^th March, 2006. She submitted a questionnaire for refugee status application on 5^th April, 2006.

3 The applicant attended the University of Benin and studied pharmacy there. She got married in late 2003. Her husband also attended the University of Benin and worked as a pharmacist.

4 At question 22 of the questionnaire, the applicant stated that she was claiming to have a fear of persecution because of membership of a particular social group, the Urhobo tribe. At question 21, she stated that she and her husband come from a tribe whose people have traditional beliefs that every female must be circumcised. She stated that after she got married her husband's family found out that she had not been circumcised and they began to insist that it must be performed. She stated that her parents could not do anything about it because, according to tradition, once you are married you belong to your husband and his family. The applicant stated that her husband's family harassed and threatened her about the issue. The applicant claimed that when they discovered that she was pregnant the pressure on her increased and her own home became unbearable.

5 The applicant was living in Lagos but went to Kano to stay with her husband's friend in February 2006, when the pressure was increasing on her. She returned to Lagos when Muslims began protesting about the publication of "the Danish cartoons". (These were cartoons published in a Danish newspaper at that time allegedly critical of Muslim religious beliefs.) On her return she stayed in a friend's house. She stated that while she was there she was frightened that her husband's family would find her. The applicant left Nigeria from Lagos on the 28^th March, 2006.

6 At question 29 of the questionnaire the applicant stated she feared that if she returns to her country of origin she will be forcibly circumcised with unsterilised traditional tools. In the applicant's affidavit of 27^th October, 2006, she claims that the practice of circumcision or female genital mutilation (hereinafter "FGM") is barbaric and extremely dangerous, carrying very serious health risks including the risk of death or the contraction of HIV.

7 The applicant's interview under s. 11 of the Refugee Act1996 (as amended) took place on the 14^th June, 2006, and the interview was conducted in English.

8 The applicant's application for refugee status was refused by decision of the Refugee Applications Commissioner on the 19^th June, 2006, and communicated to the applicant on the 26^th June, 2006.

9 The applicant appealed this decision to the Refugee Appeals Tribunal. The hearing took place on the 17^th August, 2006. On the 3^rd October, 2006, the Refugee Appeals Tribunal affirmed the decision of the Refugee Applications Commissioner and refused the application for refugee status.

10 The grounds for this application for leave to bring judicial review proceedings can be set out in six headings as the applicant has done in the written submissions filed with the court:-

11 a A. The decision of the Tribunal Member contains a material error of fact regarding the objective country conditions in relation to FGM on which the Tribunal Member has relied in the adjudication and recommendation.

12 b B. The conclusion of the Tribunal Member that state protection might reasonably have been forthcoming and that protection was or would be available to the first named applicant if she requested it, is unreasonable, irrational and flies in the face of common sense and the weight of information before the Tribunal Member which confirmed that there was no federal law banning the practice of FGM, no local law in Lagos and no effective state protection against this practice and which outlines the ineffectiveness of those laws that did exist in individual states where laws had been passed.

13 c C. The Tribunal Member erred in law and actedultra vires s. 2 of the Refugee Act 1996 and Article 1(A)(2) of the Geneva Convention as set out in the Third Schedule of the Refugee Act 1996 and applied an incorrect test in considering the matter of state protection. The Tribunal Member erred in law and/or misconstrued s. 2 of the Refugee Act 1996 and Article 1(A)(2) of the Geneva Convention as set out in the Third Schedule of the Refugee Act 1996. The Tribunal Member has applied an incorrect approach or criteria to the assessment of state protection. The first named applicant could not reasonably be expected to seek state protection against the threat of the application of FGM in circumstances where there was no applicable law or effective law against the practice.

14 d D. The Tribunal Member in her recommendation had considered irrelevant and extraneous factors in assessing state protection. In particular, the Tribunal Member has erred in considering protection from NGO groups. Without prejudice to the foregoing, reliance by the Tribunal Member on the purported availability of protection from NGOs is unreasonable and irrational having regard to the information in that regard which was before the Member.

15 e E. The Tribunal Member erred in law and actedultra vires s. 2 of the Refugee Act 1996 and Article 1(A)(2) of the Geneva Convention as set out in the Third Schedule of the Refugee Act 1996 and in breach of the first named applicant's right to fair procedures in failing to assess and/or properly assess the objective element of the first named applicant's fear of persecution and the reasons for it. The Tribunal Member further erred in law and acted ultra vires ss. 2 and 16 of the Refugee Act 1996 and in breach of fair procedures and natural justice in failing to consider and/or have regard to or keep in mind in the assessment conducted, all available information regarding objective country conditions.

16 f F. The Tribunal Member erred in law and actedultra vires and/or in breach of natural...