E (Ra O)(A Minor) & E (Rp O) v Minister for Justice & Refugee Applications Commissioner
| Jurisdiction | Ireland |
| Judge | MS JUSTICE M. CLARK, |
| Judgment Date | 16 March 2010 |
| Neutral Citation | [2010] IEHC 146 |
| Court | High Court |
| Date | 16 March 2010 |
[2010] IEHC 146
THE HIGH COURT
BETWEEN
AND
AND
REFUGEE ACT 1996 S13(6)(A)
S (P) v REFUGEE APPEALS COMMISSIONER UNREP COOKE 18.06.2009 2009 IEHC 298
J G M (MHLANGA) v REFUGEE APPLICATIONS COMMISSIONER UNREP CLARK 29.07.2009 2009 IEHC 352
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION ) REGS 2006 SI 518/2006
REFUGEE ACT 1996 S11
ILLEGAL IMMIGRANTS TRAFFICKING ACT 2000 S5(2)
IMMIGRATION
Asylum
Fear of persecution - Fear of traditional rituals - Internal relocation - Internal flight alternative - Safety of applicant - Credibility - Substantial grounds - Whether fears alleged were real - Whether threats could be avoided by moving to different area - Whether fundamental flaw or illegality in impugned decision - Whether paper based appeal inadequate - Whether absence of oral hearing prejudicial - S(P) v Refugee Appeals Commissioner [2009] IEHC 298 and M(JG) v Refugee Applications Commissioner [2009] IEHC 352 considered Refugee Act 1996 (No 17), ss 11 and 13 - Illegal Immigrants (Trafficking) Act 2000, s 5(2) - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 7 - UNHCR Guidelines on International Protection No 4 "Internal Flight or Relocation Alternative" 2003 - Leave refused (2009/393JR - Clark J - 16/3/2010) [2010] IEHC 146
E(Ra O)(A minor) v Minister for Justice, Equality and Law Reform
Oral appeal - Internal relocation - Whether paper based appeal adequate remedy when internal relocation in issue - Applicants not dealing with new issue on which no decision previously made - In depth analysis of internal relocation not in issue where no well-founded fear of persecution - United Nations guidelines directed to refusal of refugee status to people with well-founded fear of persecution - Appeal not dependent on personal testimony or demeanour - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(2) - S(P) v Refugee Appeals Commissioner [2009] IEHC 298 (Unrep, Cooke J, 18/06/2009) and M (JG) v Refugee Applications Commissioner [2009] IEHC 352 (Unrep, Clark J, 29/07/2009) distinguished - United Nations guidelines on internal relocation (2003), para 36 - Refugee Act 1996 (No 17), s 13(6)(a) - Leave refused (2009/393JR & 395JR - Clark J - 16/03/2010) [2010] IEHC 146
E(Ra) and E(Rp) (minors) v Minister for Justice, Equality and Law Reform
The applicants, who are fraternal twin infants, seek leave to apply for judicial review of the decisions of the Refugee Applications Commissioner, dated the 30 th March, 2009, to recommend that they should not be granted declarations of refugee status. The applicants will not be entitled to an oral hearing on appeal to the Refugee Appeals Tribunal and in those circumstances they argue that an appeal would be an inadequate remedy for the flaws they identify in the Commissioner's decisions.
The hearing took place on the 4 th March, 2010. Mr. Anthony Lowry B.L. appeared for the applicants and Mr Patrick O'Reilly B.L. for the respondents.
The applicants were born in Ireland on the 6 th April, 2008 of Nigerian parents. At the time of their birth their parents and two siblings were living in Ireland and awaiting decisions on their asylum claims. Their brother P. was born in Nigeria in 2004 while their sister J. was born in Ireland shortly after her parents and P. arrived in the State in 2006. The mother and father applied individually for asylum and P. was included under the mother's application. The mother claimed to have been kidnapped and held for ransom by MASSOB and that her husband who was a man of means was unable to pay the high ransom. She managed to escape and they fled to Ireland in fear of her kidnappers. J.'s claim was also based on the family's fear of MASSOB. The mother claimed to be from Cross-Rivers State but has not lived there since she married her husband who is from Ogun State. As far as the Court is aware, the status of the husband's case is that he is awaiting a final decision on his asylum appeal before the Refugee Appeals Tribunal.
The mother, P. and J. are now failed asylum seekers and were served with deportation orders in January, 2009. In April, 2009 this Court refused an injunction restraining the deportation of the mother and is therefore familiar with the facts of her case.
On the 16 th February, 2009, when the twins were nine months old, the mother made individual asylum applications on their behalf. A fear of MASSOB played no role in their claims. The claims were based on their mother's fear for them from her husband's family because as twins they would be subjected to spiritual rituals involving feeding them with traditional leaves, throwing them into water and leaving either twin determined to be the evil in the forest to starve.
It was claimed that the twins are of Igbo ethnicity and Christians. Their father was stated to be of Yoruba ethnicity. If returned to Nigeria his Yoruba family, who believe that twins are directed by spirits, would insist that they be subjected to traditional rituals in the hope of driving out spirits threatening the twins. The second fear was that both of the twins would face individual circumcision in accordance with Igbo custom. The mother said that if they went to her home town in Cross-Rivers State, both her older daughter J. and her younger daughter, the first applicant, would be subjected to female genital mutilation (FGM) possibly resulting in them bleeding to death or contracting HIV and that a similar fate awaited her son, the second applicant, when he was circumcised. She said the family had no where to go to in Nigeria with the dual threats from her family or that of her husband.
When asked if she could relocate away from her home town for example to Lagos, she said she does not know anyone in Lagos and "You cannot just move somewhere you don't know anybody. Life is hard." She accepted that she did not know anyone in Ireland before coming here but said that persons fleeing non-state persecution can safely relocate only if they know other people in the place they are travelling to. She said "It would be difficult to start a life in a strange place, the environment would be different." She said her husband had told his mother that she had given birth to twins because "You cannot hide forever. If they came to visit they would see that I have twins." She said "If we were sent back to Nigeria now we would have to go back to either my village or his village and neither is safe for us." They could not relocate because they have no-where to go.
No country of origin information or any other documentary evidence was submitted in support of either application.
The Commissioner made negative recommendations in the twin applicants' cases on the 30 th March, 2009. At the time they were just over eleven months old. The s. 13 reports, which are essentially identical, summarised their claims and noted the mother's replies at the twins's interview in relation to internal relocation. It was not accepted that she could not relocate simply because she does not know anyone in a different part of Nigeria and it was noted that she travelled all the way to Ireland where she didn't know anybody. It was stated that her reason for not...
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