Q. S. A. v Minister for Justice Equality and Law Reform and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 16 April 2015 |
| Neutral Citation | [2015] IEHC 238 |
| Court | High Court |
| Date | 16 April 2015 |
[2015] IEHC 238
THE HIGH COURT
BETWEEN
AND
Asylum – Judicial review – Order of certiorari – Refugee Act 1996 (as amended)
Facts: The applicant sought an order by way of judicial review for an order of certiorari quashing the decision of the second named respondent affirming the recommendation of the Refugee Appeals Commissioner refusing the refugee status of the applicant for fear of persecution for a Convention reason. The applicant, being a member of a particular social group, feared the possible risk of Female Genital Mutilation.
Ms. Justice Faherty held that the application seeking an order of certiorari quashing the decision of the second named respondent would be quashed. The Court held that the Tribunal failed to conduct the primary function to investigate the substance of the alleged fear of persecution. The Court held that the conclusion arrived at by the Tribunal Member contradicted the principles set out in IR. v. Minister for Justice Equality and Law Reform [2009] IEHC 353 and R.O. v. Min. for Justice & Anor. [2012] IEHC 573. The presence of people surrounding the outside of the premises from where the applicant fled away as suggested by the Tribunal Member was not corroborated in the statement of the applicant. The Court found that the decision was taken in undue haste. The Court directed the Tribunal to conduct a de novo hearing before a different Tribunal Member.
1. This is a telescoped application for judicial review wherein the applicant seeks certiorari of the decision of the second named respondent dated 3 rd of March 2010 affirming the recommendation of the Refugee Appeals Commissioner to refuse her refugee status.
2. The claimed circumstances are as follows: the applicant was born on the 12 th of December 1991 and is a national of Nigeria. Until 2008 she lived with her mother in Ogun State. She attended primary school there and was educated to grammar school level. In all she spent eleven years in education, five in primary school and six in secondary. After the applicant finished secondary school, her mother received a letter from her relatives asking her to go to her home village of Esan in Edo State. The applicant and her mother travelled to the latter's home place on the 28 th of October 2008. A few days after arriving there they were told that the family had called for the elders and that the applicant was to be circumcised. The applicant's mother had stated that she did not want this to happen to the applicant but her family had said it was the law of the land and if the applicant were not circumcised, "the gods would punish them". Her mother continued to resist but was told that the applicant had to be circumcised. The applicant's mother was beaten and, according to the applicant, when she tried to intervene they beat her also as a result of which she lost a tooth. Following this they began to watch the applicant and her mother. They were put in a house and were kept there for days. People came to speak to her mother to convince her to allow the circumcision to happen. One night her mother woke the applicant and told her that she knew what she was going through as she too had been circumcised. She told her that she had to go and that she had arranged with a friend to take the applicant away. This applicant referred to this person as "Auntie".
3. The applicant's escape from the room was orchestrated by her mother engaging her in conversation, as a ruse to divert attention from those watching them, as she opened the window for the applicant to jump out. The applicant then left with "Auntie", leaving her mother behind. She was taken to her mother's friend's house in Benin City where she was hidden at the back of the house. While there, "Auntie" had gone to the police regarding the applicant's circumstances but they had told her they could not intervene as circumcision was a tradition. "Auntie" advised her that she would make arrangements for the applicant to be safe. On the 8 th of November 2008 a man, whom the applicant referred to as "Uncle", came and took the applicant away with him. They travelled to Lagos and from there departed for Ireland, arriving in this state on 9 th of November 2008. Upon arrival in Ireland, the applicant was taken by this man to a house where she remained until January 2009. He used her as a sex slave during that time. He threatened the applicant stating that he would bring her "to circumcision" and "would not even let [her] have food. "The applicant claimed that she managed to escape from this house on an occasion when "Uncle" had left the house. She begged passers by for money and managed to telephone a sister of the applicant's best friend and whom the applicant referred to as "Auntie Bettie", who resided in Ireland. When in Nigeria, the applicant and her friend had on occasion telephoned "Auntie Bettie" in Ireland. Having made contact with this person, the applicant managed to get to her place by bus after begging people for money and seeking directions.
4. The applicant's asylum process appears to have commenced on the 30 th of January 2009 and she completed an ASY 1 form on 9 th of February 2009. The applicant claims asylum on the basis of membership of a particular social group.
5. The applicant's questionnaire was submitted to ORAC on the 17 th February 2009 and she underwent a s.11 interview on 7 th of March 2009.
6. The commissioner's s. 13 report, dated 10 th of March 2009, issued to the applicant on the 26 th of March 2009 which recommended that she should not be declared a refugee. Her application was refused on grounds of credibility and, notwithstanding the rejection of her claim on credibility grounds, the commissioner found that "the applicant has failed to demonstrate that she could not avail of protection in Nigeria" and "it is further considered that Nigeria has a population of over 140 million people and it is not considered plausible that [the applicant] could be found and harmed by [her] village people and family members.
7. An oral hearing of the applicant's appeal to the Refugee Appeals Tribunal took place on 11 th August 2009.
8. Holding against the applicant, the Tribunal Member noted that even if there was a genuine fear in the mind of the applicant, there had to be a valid basis for that fear. The Tribunal Member did not accept there was such a genuine fear for a number of reasons. She made the following findings:
She did not accept the applicant's account of the circumstances under which she and her mother travelled to Esan, stating: "it is highly implausible that the mother and the applicant would travel the distance to Esan on the basis of some letter sent to her and not knowing what the purpose of the journey was. This is particularly so in circumstances where the applicant maintains that her mother's village and family had a tradition of FGM; her mother was aware of this tradition and had undergone this procedure herself; and she was opposed to this tradition. It is not credible that her mother, knowing of and objecting to this tradition would bring the applicant to this village on foot of a rather mysterious letter and where she may be at possible risk of FGM…This undermines the applicant's claim."
The Tribunal Member found the manner in which the applicant allegedly escaped from Esan "equally incredible" and queried whether she had in fact been detained at all. The Tribunal Member opined: "If the purpose of the mysterious letter is to inveigle them back to Esan for the applicant's circumcision then their agreement to this is surplus to requirements and they could just have forcibly carried out the practice."
With regard to the "secret arrangement" the applicant alleged her mother made with a friend to take the applicant away, the Tribunal Member concluded that this arrangement "could not have been made at as alleged by the applicant as there was no opportunity to do so in the time between discovering the purpose of the summonsing and being locked up after being beaten. This undermines her claim too."
The Tribunal Member found that the alleged escape out of the window did not ring true when one considered that the place "was allegedly surrounded by people." The Tribunal Member put it thus: "While [the applicant] is at pains to explain how the mother opened the window and duped these people into thinking they were merely talking together she overlooks a rather critical point which is what the people surrounding the place thought when auntie suddenly appeared at this window. If she opened the window to highlight the fact that they are inside, merely talking, it is inevitable that she will also draw attention to the fact that Auntie is in attendance, outside, waiting for the applicant to emerge. Nor is it a reasonable explanation proffered as to how she and Auntie escaped once outside this window. The fact that it was night time does not explain how two adults emerge, one from a window and one from its environs into an area surrounded by people already (as the applicant's mother seems to have thought) alerted to the open window. This is not credible evidence. It is internally inconsistent and on any analysis makes little or no sense."
The Tribunal Member found the applicant's description of her journey to Ireland, her subsequent escape from "Uncle" "not credible" and her account of locating "Auntie Bettie" to be "completely implausible". She noted that while the nature of the applicant's travel to Ireland was not a core issue, it was relevant "in an overall assessment of her claim." The Tribunal Member...
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