A-R (H) & A-R (S) v Refugee Appeals Tribunal and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice John Edwards
Judgment Date25 February 2009
Neutral Citation[2009] IEHC 92
Date25 February 2009

[2009] IEHC 92

THE HIGH COURT

[No. 1319 J.R./2006]
A-R (H) & A-R (S) v Refugee Appeals Tribunal & Ors
JUDICIAL REVIEW
IN THE MATTER OF THE REFUGEE ACT, 1996 (AS AMENDED)
IN THE MATTER OF THE IMMIGRATION ACT, 1999 AND

BETWEEN

H.A.-R

AND

S.A.-R. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND H.A.-R.)
APPLICANTS

AND

THE REFUGEE APPEALS TRIBUNAL, THE REFUGEE APPLICATIONS COMMISSIONER, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE ATTORNEY GENERAL AND IRELAND
RESPONDENTS

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S13

CANADA, AG v WARD 1993 2 SCR 689 1993 103 DLR (4TH) 1

HORVATH v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2000 3 AER 577 2001 1 AC 489 2000 3 WLR 379

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)

S (DVT) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP EDWARDS 4.7.2007 2007/54/11621 2007 IEHC 305

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

IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (O'BRIEN) UNREP HIGH 27.5.2005 (EX TEMPORE)

ROSTAS v REFUGEE APPEALS TRIBUNAL UNREP GILLIGAN 31.7.2003 2003/46/11163

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL UNREP PEART 9.7.2004 2005/15/3102 2004 IEHC 436

KARANAKARAN v SECRETARY OF STATE FOR THE HOME DEPT 2000 3 AER 449

OJUADE & ORS v REFUGEE APPLICATIONS CMSR & ORS UNREP PEART 2.5.2008 (EX TEMPORE)

L (Z) & L (V) v SECRETARY OF STATE FOR THE HOME DEPT 2003 EWCA CIV 25

R (L & ANOR) v SECRETARY OF STATE FOR THE HOME DEPT 2003 1 AER 1062 2003 1 WLR 1230

ALI v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP PEART 26.5.2004 2004/2/244 2004 IEHC 108

HATHAWAY THE LAW OF REFUGEE STATUS 1991 PARA 4.5.1

A (OA) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP FEENEY 9.2.2007 2007/4/605 2007 IEHC 169

NWOLE v MIN FOR JUSTICE & CMSR OF AN GARDA SIOCHANA UNREP PEART 26.5.2004 2005/44/9307 2004 IEHC 433

SALU (A MINOR) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP FEENEY 12.12.2006 2006/51/10935 2006 IEHC 411

IMMIGRATION

Asylum

Mother and infant daughter - Female genital mutilation - Failure of applicant mother to report threat to police in country of origin - Infant out of time for relief - Whether well founded fear of persecution - Whether failure to consider all relevant evidence in respect of availability of state protection - Whether failure to consider adequacy of state protection - Whether selective use of country of origin information - Whether fair procedures followed - Whether irrelevant matters taken into account - Whether failure to consider infant's case separately - Nwole v Minister for Justice [2004] IEHC 433 (Unrep, Peart J, 26/5/2004), S(E) v Refugee Applications Commissioner HC 411 (Unrep, Feeney J, 12/12/2006) applied; AG v Ward [1999] 2 SCJ 689, Horvath v Secretary of State for the Home Department [2002] 3 All ER 577, Simo v Minister for Justice [2007] IEHC 305 (Unrep, Edwards J, 04/07/2007), Muia v Refugee Appeals Tribunal [2005] IEHC 363 (Unrep, Clarke J, 11/11/2005), Idiakheua v Minister for Justice (Unrep, Clarke J, 27/5/2005), Rostas v Refugee Appeals Tribunal (Unrep, Gilligan J, 31/7/2003), Da Silveria v Refugee Appeals Tribunal (Unrep, Peart J, 9/7/2004), Karanakaran v Secretary of State for the Home Department [2000] 2 All ER 449, Ojuade v Refugee Applications Commissioner (Unrep, Peart J, 2/5/2008), L v Secretary of State for the Home Department [2003] All ER 1062, Ali v Minister for Justice (Unrep, Peart J, 26/5/2004), Rajudeen v Minister of Employment and Immigration [1985] 55 NR 129 (FCA) and Adeniran v Refugee Appeals Tribunal [2007] IEHC 169, (Unrep, Feeney J, 9/2/2007) considered- Refugee Act 1996 (No 17), s 2 - Relief refused (2006/1319JR - Edwards J - 25/2/2009) [2009] IEHC 92

A(H) v Refugee Appeals Tribunal

1

JUDGMENT of Mr. Justice John Edwards delivered on 25th day of February, 2009

Introduction
2

The first and second named applicants are Ghanaian nationals. They are also mother and daughter respectively. Both applicants arrived in Ireland on 22 nd September, 2005 having fled from Ghana a day or two previously. On the day of their arrival in the State, the first named applicant applied for asylum. In completing the relevant documentation, the first named applicant indicated that she wanted the second named applicant, who is a minor, to be included within her asylum application and she signed the standard forms in that regard.

3

The first named applicant is originally from a village called Dagomba in the northern part of Ghana. However, she is estranged from her family for some years for reasons which are set out later in this judgment, and for the most part has been living in Obuasi-Adansi. Prior to leaving Ghana the first named applicant worked as a hairdresser in Obuasi Adansi. On the 11 th of September, 2005 she married her partner of some years, and with whom she now has four children. She candidly admits in her s.11 interview that they formalised their relationship by marrying to facilitate the applicants' travel.

4

As mentioned there are now four children of the marriage. The first two children are boys and they remain in Ghana with their father. The third child, the second named applicant herein, was a girl and she was born on 4 th June, 2004. The fourth child is also a girl, but she was born in Ireland in Waterford Regional Hospital on the 30 th of October 2005, the first named applicant having been heavily pregnant upon her arrival in the State.

5

The first named applicant claims that she and her daughter have a well-founded fear of persecution as defined under s. 2 of the Refugee Act, 1996 (as amended) in the following circumstances. She claims that her family want her to be circumcised (ie to undergo female genital mutilation or "FGM" as it is sometimes referred to) in accordance with a tradition in her family and in her village. She contends that she will inevitably face similar demands in respect of her Ghanaian born daughter, the second named applicant.

6

The first named applicant claims that her problems with her family began about nine years before she fled to Ireland, at around the same time that she met her then partner, who is now her husband. She claims that her family began pressurizing her to be circumcised, and that they offered her medicine which the applicant described as "herbs mixed with water". She claims that when she spoke about this to another woman whose daughter had died while undergoing FGM, this woman said to her that, if she took the medicine, she would powerless to prevent the circumcision. The first named applicant alleges that as a result of this she fled in the first instance to the village of Kumbungu where she had a friend, and from there to Obuasi-Adansi to be with her partner. She claims that she returned to her village after having three children, thinking that she wouldn't be circumcised. She claims that when she returned to her village she was again threatened with circumcision, and was insulted. Specifically she was accused by her parents of having had three "dirty" children and was told that her children would never be accepted in the village. She was accused of returning to destroy or damage the villagers' culture, and was told that whether she liked it or not she would have to undergo circumcision. She stated that such circumcisions are always performed in her village one week before the start of Ramadan. She returned to her partner in Obuasi-Adansi before then. She alleges that her family then sought her out and were able to find her in Obuasi-Adansi. As a result of this she fled to her uncle's home taking the second named applicant with her. She claims that her uncle made arrangements for them to leave Ghana, and that she left on September 20 th 2005 via the Ivory Coast. As previously stated she arrived in Ireland on 22 nd September, 2005.

7

The first named applicant acknowledges that while in Ghana she did not report the threats against her to the police. She contends that she did not do so because "the law respects the tradition of circumcision in my village". Moreover, nobody had intervened when her own sister had bled for several months after undergoing FGM and eventually died.

8

The first named applicant attended for interview on 14 th November, 2005 and her application was considered by the Refugee Applications Commissioner (the second named respondent herein) in due course. Although the second named respondent considered aspects of the first named applicant's story to be vague and inconsistent, he made no specific adverse credibility finding. However, he noted that notwithstanding that FGM is outlawed in Ghana, and has been a criminal offence there since 1994, the applicant had failed to report the threats against her to the police or to seek their assistance. He held that it was reasonable to assume that State protection would have been available to the first named applicant, had it been sought. Accordingly, he was not satisfied that the first named applicant had established a well-founded fear of persecution as defined under s. 2 of the Refugee Act, 1996 (as amended) and he recommended that she should not be declared a refugee. The Refugee Application Commissioners s. 13 report is dated 22 nd December, 2005.

9

Although the second named applicant is named in the title to the s. 13 report as being a dependent of the first named applicant, there is no reference within the body of the report to the second named applicant at all.

10

The first named applicant filed a notice of appeal dated 21 st December, 2005. This was an appeal to the Refugee Appeals Tribunal (the first named respondent herein). This took the form of an oral hearing which took place on 13 th June, 2006, and at which the first named applicant was legally represented.

The Decision...

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