N. & Anor -v- MJELR, [2008] IEHC 107 (2008)

Docket Number:2007 1432, 1528 & 1641 JR
Party Name:N. & Anor, MJELR
Judge:Charleton J.
 
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THE HIGH COURT

JUDICIAL REVIEW 2007 No. 1432 J.RBETWEENFR. N., UYO. E. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND FR. N.) AND OB. E. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND FR. N.) APPLICANTSAND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENT

2007 No. 1528 J.RIN THE MATTER OF THE REFUGEES ACT, 1996 (AS AMENDED), IN THE MATTER OF THE IMMIGRATION ACT, 1999 (AS AMENDED), IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000, IN THE MATTER OF THE EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGULATIONS 2006, AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 SECTION 3(1) BETWEEN EDE. EM., OS. EM. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND EDE. EM.) AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE ATTORNEY GENERAL AND IRELANDRESPONDENTS

2007 No. 1641 J.RBETWEEN SUSAN O. APPLICANTAND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE ATTORNEY GENERAL AND IRELANDRESPONDENTSAND

THE HUMAN RIGHTS COMMISSIONNOTICE PARTY JUDGMENT of Mr. Justice Charleton J. delivered on the 24th day of April, 2008

1. All of the applicants are persons who have come from Nigeria to Ireland and who have unsuccessfully claimed to be refugees from persecution as defined by s. 2 of the Refugee Act 1996, as amended. None of them are in possession of passports or national identity documents. At the conclusion of the statutory process whereby a declaration of refugee status might have been made in their favour, all of them were written to by the respondent Minister, pursuant to his obligation under s. 3 of the Immigration Act 1999, asking them for representations as to why they should not be deported. Council Directive 2004/83/EC of the 29th April, 2004 on minimum standards for the qualification and status of third country nationals, or Stateless persons as refugees, or as persons who otherwise need international protection and the content of the protection granted, O.J. L30A/12 30.9.2004, (the subsidiary protection Directive), was brought into force in Irish law by virtue of the European Communities (Eligibility for Protection) Regulations 2006, S.I. number 518 of 2006. The applicants were also written to on or after 10th October, 2006, the date on which the aforementioned legislation came into force, asking them whether they were seeking subsidiary protection and seeking representations on that account as well. In response, representations from the several applicants for subsidiary protection were made. This status was subsequently refused by the respondent Minister in respect of all of them. In essence, the several applicants argue that the decision by the respondent Minister to refuse to grant them subsidiary protection was made by a procedure which was in breach of their rights. The correct procedure, they argue, that must be applied where an issue arises as to whether a failed asylum seeker is entitled to subsidiary protection is one which is equivalent to the statutory mechanism for the granting of a declaration of refugee status under the Refugee Act 1996, as amended. Further, it is argued that this Court, in reviewing the decisions of the respondent Minister refusing subsidiary protection, should apply the case law of the Superior Courts applicable to refusals of refugee status and not merely the principles which the courts have worked out in respect of the discretionary power of the respondent Minister to allow a failed asylum seeker to stay in Ireland on humane grounds and in respect of the duty of the respondent Minister to uphold the principle of non-refoulement.

2. All the parties accept that an application for subsidiary protection cannot be made before the Refugee Applications Commissioner, and nor can a refusal of such protection be appealed to the Refugee Appeals Tribunal; such an application can only be made to the respondent Minister. The applicants argue, however, that the nature of the rights involved in subsidiary protection imply equivalent levels of protection by way of the procedures that the respondent Minister must apply in determining subsidiary protection status, insofar as that is possible, and that there should be an equivalent scrutiny in terms of the review that this Court should apply to the decisions of the respondent Minister in that regard. The respondent Minister has argued that the availability of the right of subsidiary protection to people such as the applicants, is one which can, and should, be decided by an administrative procedure following upon the conclusion of a failed application for refugee status and which concerns itself essentially with the circumstances of the applicant and as to whether, in that regard, any case is made out by an applicant that the situation within their country of origin is such as to require the State to offer them subsidiary protection. The respondent Minister contends that, as all of the applicants are failed asylum seekers, the nature of the review of his decisions by this Court should therefore be equivalent to that applicable in the prohibition of refoulement and refusal of leave to remain in Ireland on humanitarian grounds cases.

3. This Court is not entitled to decide cases on the basis of hypothetical sets of facts. It is therefore important to refer to the individual circumstances of each set of applicants before turning to the law and considering its applicability to them. The applicant, Fr. N., is joined in this case by her son and daughter, none of whom are Irish citizens. The applicant, Ede. Em. is joined by her son, who is not an Irish citizen. The applicant, Susan O., does not have any children who are joining in this application.

N.: The Process

4. Before the Refugee Applications Commissioner and before the Refugee Appeals Tribunal, these applicants claimed that they feared persecution in Nigeria because the family of Ms. N. wanted her to be the head of an occult shrine and to have her daughter circumcised through female genital mutilation. On the death of her father, she claimed her family advised her that she should now become head of this shrine. She claimed that she did not want to. The applicant stated that she was beaten and had her leg broken because of her refusal to comply with these demands. She did not remember the date of her father's burial. Her father, she claimed, died on 22nd January, 2004, and she departed from Nigeria on 27th July, 2005. She claimed that she was subjected to threats from shrine and family members, but she did not claim that the Nigerian authorities had anything to do with any attempt at intimidating her. Leaving three other daughters behind in Nigeria, she left with one of the applicants. The Commissioner commented as to the applicant that her "replies were vague in relation to timing of events which she would have been expected to know." She added: " In the opinion of this examiner, the applicant's claim is not credible, she had therefore not demonstrated a well founded fear of persecution." The Refugee Appeals Tribunal found that the applicant did not know what religious activities went on within the shrine; she had indicated that these involved sacrifice, the mixing of blood to drink and the killing of dogs and dancing. She claimed that if she returned to Nigeria she would be killed. When she was asked as to why she had only brought one of her three daughters with her, fearing they might all suffer female genital mutilation, she said it was because they were sleeping.

5. It is not for this Court to find facts, as I have not seen or heard any of the applicants. In the N. case, a wide range of facts were alleged which were not accepted on appeal. In analysing the claim, the Tribunal commented as follows:"A. The applicant said that her leg had been broken by her own family on 14th November, 2004. At p. 13 of the interview the applicant stated that her husband and she were together when they made the police report. She did not go to the hospital because "when you have injury on legs, they can also do it at home. They invite the Doctor, while I was at the home of church members". In her direct evidence at the hearing, the applicant said she went from the police station to the hospital with friends and church members. She said she could not stay there. The Tribunal is of the opinion that it would have been reasonable to have sought and obtained a medical report from the hospital verifying the facts as outlined by the applicant, particularly since the applicant had obtained a photocopied record of the alleged assault.

B. The Tribunal does not find credible the applicant's claim that she spent six months in the home of her church leader without contacting her children's school, or making any efforts personally to ascertain their whereabouts despite threats for circumcision from the applicant's own family. It is not credible that the applicant would have abandoned her daughters and moved to a different Continent if there was any genuine threat.

C. The detail given by the applicant of the practices of the [occult] society varied extravagantly each time she gave an account. Yet when she was asked directly what religious activities went on in the society she said she was not there herself. It is reasonable, therefore, to infer that her flamboyant descriptions are conjecture.

D. The Tribunal is not satisfied that the applicant has provided a full and true explanation of how she travelled to and arrived in the State. She did not produce passports or documents of identity for her children and herself at the airport, and was deliberately vague and unresponsive when questioned about passports.

E. The applicant and her husband and family come from Benin City, Edo State, which is one of eight States in Nigeria where [female genital mutilation(FGM)]is prohibited by law. The Nigerian Government publicly opposes FGM and campaigns have been conducted through the Ministry of Health and the media. A Draft Bill outlawing FGM has been before the National Assembly since 2001. The joint British/Danish...

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