O (P) & O (S)(an Infant) v Min for Justice and Others

JurisdictionIreland
JudgeMr. Justice McDermott
Judgment Date21 March 2014
Neutral Citation[2014] IEHC 141
CourtHigh Court
Date21 March 2014

[2014] IEHC 141

THE HIGH COURT

[No. 226 J.R./2013]
O (P) & O (S) (an infant) v Min for Justice & Ors
JUDICIAL REVIEW

BETWEEN

P.O. AND S.O. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND P.O.)
APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S3(11)

E (E) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 24.3.2010 2010/18/4333 2010 IEHC 135

SMITH v MIN FOR JUSTICE & ORS UNREP SUPREME 1.2.2013 2013 IESC 4

AHMED v MIN FOR JUSTICE UNREP BIRMINGHAM 24.3.2011 (EX TEMPORE)

NANIZAYA v MIN FOR JUSTICE UNREP CROSS 23.3.2012 2012 IEHC 126

C (T) (ORSE MCC) & C (A) v MIN FOR JUSTICE 2005 4 IR 109 2005 2 ILRM 547 2005/10/2112 2005 IESC 42

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

SIVSIVADZE & ORS v MIN FOR JUSTICE & ORS UNREP KEARNS 21.6.2012 2012/42/12601 2012 IEHC 244

A (M) v MIN FOR JUSTICE UNREP COOKE 17.12.2009 (EX TEMPORE)

IMMIGRATION ACT 1999 S3(1)

R (T (S) [ERITREA]) v SECRETARY OF STATE FOR THE HOME DEPT 2012 2 AC 135 2012 2 WLR 735 2012 3 AER 1037 2012 UKSC 12

IMMIGRATION ACT 1999 S3(6)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

AGBONLAHOR v MIN FOR JUSTICE & ORS 2007 4 IR 309 2007/3/447 2007 IEHC 166

Asylum- Deportation – Refugee status - Revocation - s.3 Immigration Act 1999 - Judicial review - Country of origin information - Decision-making - Additional information - Fair procedures - Whether error of law - Whether absence of policy/guidelines - Article 8 ECHR

Facts: The applicants were Nigerian nationals. Upon arrival in Ireland in September 2006 they applied for asylum. In January 2010 they received a “three options letter” detailing the state”s intention to deport them on foot of the failed asylum claim. Consequently, the applicants made an application for the deportation order to be revoked under s.3 Immigration Act 1993. Revocation was refused. They now seek to quash the decision by way of judicial review.

Grounds for judicial review: 1. Alleged breach of fair procedures as the decision-maker used deficient country of origin information and largely ignored the information submitted by the applicant 2. Alleged procedural unfairness as the respondent ought to have informed the applicant of its reliance on additional material 3. Alleged failure to inform the applicants of the principles, policy and guidelines used when arriving at a final decision 4. Alleged breach of Article 8 ECHR

Held: The judge held the country of origin information relied on by the respondent was more recent than that of the applicant. The respondent was entitled to seek more recent and diverse sources of information. The judge held the procedure adopted by the respondent was not unfair to the applicant. The new documentation relied upon was freely available to the public and reliance on it did not alter the scope and/or nature of the inquiry. There was no obligation to inform the applicant of the additional information or to provide a copy of it before reaching a decision. The judge concluded the absence of guidelines did not vitiate the decision, a decision which was to be arrived at by taking into consideration the overall statutory scheme, the relationship between s. 3(1) and (11) and previous decisions of the asylum process. The judge concluded that a decision to deport the applicants did not constitute an interference with the right to respect for family life under Article 8(1) ECHR. The benefits which the applicants may have derived from continuing residence in the state did not amount to such exceptional circumstances as would entitle them to remain in Ireland.

Application for an order of Certiorari refused.

1

1. The applicants seeks an order of certiorari quashing a decision made by the first named respondent on the 25 th February, 2013. affirming the deportation orders made against them following a grant of leave to apply for judicial review on the 22 nd April, 2013 (Clark J.).

2

2. The applicants are Nigerian nationals. The first named applicant arrived in the State on the 11 th September, 2006 and applied for asylum on the 26 th September. On the 20 th October, the applicant's son, the second named applicant was born in the State, but is not entitled to Irish citizenship.

3

3. On the 1 st October, 2007, the Refugee Applications Commissioner refused to recommend that the applicants be granted refugee status. No appeal was taken against this decision; instead judicial review proceedings issued. This challenge was subsequently withdrawn in 2010.

4

4. On the 20 th January, 2010, a "three options" letter was sent to the applicants, detailing the State's intention to deport them on foot of the failed asylum claim. No application for subsidiary protection was made at this time and instead the applicants' case was considered by the respondent under s. 3 of the immigration Act 1999. The deportation orders were signed on the 9 th May, 2012. The applicants were notified in the appropriate way.

5

5. An application to revoke the deportation orders was made by the solicitors for the applicants on the 21 st September, 2012, under s. 3(11) of the Immigration Act. In a decision dated the 25 th February, 2013. the respondent refused to do so. The applicants now seek to quash the decision by way of judicial review.

The first named applicant's asylum claim
6

6. The first named applicant was born and raised in Lagos and was a skilful footballer, playing to international level for Nigeria and representing her country in the Women's World Cup. Though originally a Roman Catholic, she was converted to Pentecostalism by her husband. Her family did not approve of this conversion or the fact that her husband was a member of the Osu caste. She claims that her mother attempted to poison her husband, and the couple moved away to Jos.

7

7. While in Jos, the first named applicant met a friend, A., a Muslim, who was converted to Christianity after interacting with the applicant and her Church. She claims that a month after the conversion. A. disappeared and that her family held her responsible. She claims that the family pursued her and attacked the applicant's brother in law, a pastor and her step daughter.

8

8. The first named applicant went into hiding and her husband arranged her safe passage out of Nigeria. She claims that she travelled with an agent under a Nigerian passport that was not her own and that her own passport is held in safe keeping in a bank in Nigeria.

9

9. She claims that she did not make any complaints to the police about the various threats to her safety. She claims that she could not relocate in Nigeria as she is a well known footballer. She feared that her son would be subject to the same dangers if returned to Nigeria.

10

10. The Refugee Applications Commissioner raised issues of credibility concerning this story. It doubted her claim to be a member of the Roman Catholic Church because of her failure to name any of the Roman Catholic Sacraments and because she had not heard of Protestants before her conversion. A further credibility issue arose because the applicant did not know the pastor of the Redeemed Christian Church to which she said she had converted. The headquarters of the Church was in Jos.

11

11. The first named applicant fears harm at the hands of her mother and the family of her disappeared friend A. Though she escaped from her own family after marrying her husband, the applicant was not followed or found by her family in Jos. She claimed that she did not go to the police as they would do nothing to help her because it was a family matter.

Grounds 1(a), (b) and (c)
12

12. Counsel for the applicants contend that the Minister's decision ought to be quashed on the basis that it was reached in breach of fair procedures because the official making the decision used deficient country of origin information and largely ignored material submitted on behalf of the applicants.

13

13. The first named applicant contends that the information supplied by her solicitors was of a higher quality than that relied upon by the respondent and should have been preferred. in order to attract relief on this basis, the applicant must demonstrate a high degree of carelessness on the part of the decision maker or a fundamental error apparent from the materials. In E.E. v. Refugee Appeals Tribunal [2010] IEHC 135, Cooke J. slated:-

"In that regard, the approach of the Court to the reliance placed by the Tribunal on such information is clear. It is for the Tribunal member to weigh and assess relevant information drawn from country of origin documentation and to decide what value or weight should be accorded to various parts of it, having regard to its relevance, the authoritative quality of its source, its apparent reliability and so forth. … the Court should intervene to disturb a decision only where it is shown that some fundamental mistake has occurred in the use or interpretation of the available information or where the conclusion reached is manifestly at variance with the content and obvious effect of the documentation."

14

14. A large body of country of origin information was submitted, collated and assessed by the respondent. The information submitted on behalf of the applicant consisted of:-

(1) "Country Report on Human Rights Practice for 2011 in Nigeria" United States State Department (published May, 2012);

(2) "Nigeria: Police abuse rife despite anti corruption efforts". integrated Regional Information Networks - published the 20 th August, 2010;

(3) "Everyone's in on the game: corruption and human rights abuses by Nigerian police force" Human Rights Watch 17 th August. 2010.

(4) Amnesty International 2012...

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