S (O) and Others (A Minor) v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 07 April 2011
• Neutral Citation: [2011] IEHC 291
• Court: High Court
• Docket Number: [2010 No. 995 JR]
• Date: 07 April 2011

[2011] IEHC 291

THE HIGH COURT

[No. 995 J.R./2010]

S (O) & S (FO) (A Minor) v Min For Justice

JUDICIAL REVIEW

BETWEEN

O. S. AND F.O.S. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND O.S.)

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S17(1)(B)

REFUGEE ACT 1996 S17(7)

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

HAUGHEY, IN RE 1971 IR 217

D (HI)(A MINOR) & A (B) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 19.1.2010 2010/10/2225 2010 IEHC 172

N (FR) & ORS v MIN FOR JUSTICE 2009 1 IR 88 2008/45/9787 2008 IEHC 107

REFUGEE ACT 1996 S17(1)

REFUGEE ACT 1996 S17(1)(A)

REFUGEE ACT 1996 S18(4)

X (R) & ORS v MIN FOR JUSTICE 2011 1 ILRM 444 2010/54/13491 2010 IEHC 446

CULLEN & ORS v WICKLOW COUNTY MANAGER UNREP SUPREME 30.7.2010 2010/9/2114 2010 IESC 49

REFUGEE ACT 1996 S17

CRIMINAL LAW

Asylum

Refugee status application - Refusal - Minister - Whether Minister obliged to have regard to applicant submissions challenging validity of Tribunal decision - HID v Refugee Applications Commissioner [2010] IEHC 172, (Unrep, Cooke J, 19/1/2010) and FN v Minister for Justice, Equality and Law Reform [2008] IEHC 107, [2009] 1 IR 88 followed; X v Minister for Justice, Equality and Law Reform [2010] IEHC 446, (Unrep, Hogan J, 12/12/2010) distinguished - Refugee Act 1996 (No 17), s 17(1)(b) - Leave to seek judicial review refused ( 2010/995JR - Hogan J - 7/4/2011) [2011] IEHC 291

S(O) v Minister for Justice, Equality and Law Reform

1 JUDGEMENT of Mr. Justice Hogan delivered on the 7th day of April, 2011

2 1. This application for judicial review raises an important procedural question concerning the operation of s. 17(1)(b) of the Refugee Act 1996 ("the 1996 Act"). Does the Minister for Justice, Equality and Law Reform have an obligation to entertain submissions effectively challenging the validity of the Refugee Appeals Tribunal's decision to refuse to recommend refugee status prior to making a final decision under s. 17(1)(b)? For the reasons I now propose to set out, I am of the view that the Minister has no such obligation.

3 2. Section 17(1)(b)(as amended) provides:-

4 2 "(1) Subject to the subsequent provisions of this section, where a report under section 13 is furnished to the Minister or where the [Tribunal] sets aside a recommendation of the Commissioner under section 16, the Minister-

5 (a) shall, in case the report or, as the case may be, the decision of the [Tribunal] includes a recommendation that the applicant concerned should be declared to be a refugee, give to the applicant a statement in writing (in this Act referred to as "a declaration") declaring that the applicant is a refugee, and

6 (b) may, in any other case, refuse to give the applicant a declaration,

7 and he or she shall notify the High Commissioner of the giving of or, as the case may be, the refusal to give the applicant a declaration."

8 3. As we have seen, s. 17(1)(b) gives the Minister a discretion to grant a declaration of refugee status to an applicant, adverse recommendations to the contrary from the Office of Refugee Applications Commissioner and the Refugee Appeals Tribunal notwithstanding. The net question here is, as we have seen, whether the Minister is obliged to have regard to submissions emanating from the applicant before exercising his discretion under the sub-section. Before considering this question, it is, however, necessary first to set out the background facts.

The Background Facts

9 4. The first applicant arrived here from Nigeria in January, 2007 and she gave birth to her daughter, the second applicant, shortly thereafter. The first applicant sought asylum on behalf of both herself and her daughter on the basis that both claimed to have a well founded fear of persecution. The contention, in essence, was that they were both members of a social group, namely, females at the risk of female genital mutilation.

10 5. In broad summary the first applicant claimed that she had been circumcised when she was 13 and had suffered horribly as a consequence. She further claimed that her first daughter, V., had been forcibly circumcised in 2003 and had died as a result. She contended that her husband's father, KS, was a chief within the Traditional Ogboni Fraternity who insisted that all his granddaughters be circumscribed. In 2006 matters came to a head with regard to another daughter, P.. When relatives and other family members insisted that P. be brought for circumcision in 2006, the first applicant maintains that at that point she resolved to leave Nigeria. She then arranged with her husband to leave Nigeria through the auspices of an agent.

11 6. These contentions were rejected by the Commission and the Tribunal respectively. In its decision of 31 ^st May, 2010, the Tribunal concluded that the first applicant was no longer at risk on the basis that "there has been no evidence to suggest that any past persecution will be repeated." So far as the second applicant was concerned the Tribunal relied heavily on a 2009 Norwegian country of origin report entitled "Mutilation of Women in West Africa." This showed that the rate of female genital mutilation was in significant decline. Whereas some 28% of women between the ages of 25 to 49 have been subjected to circumcision, the corresponding figure for those between 15 to 19 was said to be 13%. The report was also said to show that the decision-makers in such cases are the parents (and, specifically, the mother) and that only rarely (if at all) were grandparents actively involved in such decisions. The Tribunal member accordingly found against the applicants on the basis that their claims ran counter "to generally known facts and there are major credibility issues that fundamentally flaw these claims".

12 7. It is probably important to pause at this juncture to observe that the validity of the Tribunal decision is not presently before me and I express no view whatever in respect of the reasoning of the Tribunal member.

13 8. At all events, at this point the solicitors for the applicants sent a new letter on 17 ^th June, 2010, to the Minister. In that correspondence they contended that the Tribunal had failed properly to consider the applicants' claims. This was followed by detailed submissions which critiqued the Tribunal's assessment, not least its reliance on the country of origin information. Specifically, it was said that the Norwegian statistics referred to the prevalence of female genital mutilation in West Africa as a whole as distinct from that prevailing in Nigeria. These statistics furthermore masked the fact that...