S.I. and Another v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: MR. JUSTICE HEDIGAN,
• Judgment Date: 16 January 2009
• Neutral Citation: [2009] IEHC 8
• Court: High Court
• Date: 16 January 2009

[2009] IEHC 8

THE HIGH COURT

[1130 J.R./2008]

I (S) & I (D) (A Minor) v Refugee Appeals Tribunal & Ors

BETWEEN

S. I. AND D. I. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND, S.I.)

APPLICANTS

AND

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

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

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

A (K) & A (A) (A MINOR) v REFUGEE APPLICATIONS CMRS & ORS UNREP HEDIGAN 16.10.2008 2008 IEHC 314

T (O S) v MIN FOR JUSTICE & ORS UNREP HEDIGAN 12.12.2008 2008 IEHC 384

E O & ORS v MIN FOR JUSTICE EQUALITY & LAW REFORM & ORS UNREP HEDIGAN 18.12.2008 2008 IEHC 433

SI 518/2006 EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006

SI 518/2006 EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 2(1)

SI 518/2006 EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 5(1)(a)

SI 518/2006 EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 5(1)(b)-(e)

REFUGEE ACT 1996 S5

CRIMINAL JUSTICE (UN CONVENTION AGAINST TORTURE) ACT 2000 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION ACT 1999 S3(6)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

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

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD ART 3

UNER v NETHERLANDS UNREP ECHR 18.10.2006 APPLICATION NO 46410/99

NWOLE v MIN FOR JUSTICE & ORS UNREP FINLAY-GEOGHEGAN 31.10.2003 2003/42/10103 2003 IEHC 72

KEEGAN v IRELAND 1994 18 EHRR 342

G v DPP 1994 1 IR 374

CANADA (AG) v WARD 1993 2 RSC 689

DK v MIN FOR JUSTICE EQUALITY & LAW REFORM 2006 3 IR 368

IMMIGRATION ACT 1999 S3(6)(c)

R (RAZGAR) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2004 2 AC 368

AGBONLAHOR (A MINOR) v MIN FOR JUSTICE & ORS UNREP FEENEY 18.4.2007 2007/3/447 2007 IEHC 166

U (F) (A MINOR) v MIN FOR JUSTICE & ORS UNREP HEDIGAN 11.12.2008 2008 IEHC 385

S (B I) & ORS v MIN FOR JUSTICE UNREP DUNNE 30.11.2007 2007/54/11584 2007 IEHC 398

IMMIGRATION

Asylum

Judicial review - Leave - Female genital mutilation - Extension of time - Explanation for delay - Difficulty in understanding legal matters - Limited means - Whether good and sufficient reasons for extension - Seriousness of time limit - Subsidiary protection - Claim of serious harm - Country of origin information - Availability of state protection - Deportation order - Failure to seek state protection - Whether flawed treatment of country of origin information regarding state protection - Whether failure to assess adequacy of state protection - Presumption that states capable of protecting citizens - Whether failure of state protection where government not given opportunity to respond - Whether failure to assess proportionality of deportation - Failure to mention article 8 rights in representations seeking leave to remain - Consideration of family and domestic circumstances - Whether failure to consider best interests of child - Whether prima facie case made out with respect to subsidiary protection decisions -Whether substantial grounds for review of deportation orders - A(K) v Refugee Applications Commissioner [2008] IEHC 314 (Unrep, Hedigan J, 16/10/2008), T(O S) v Minister for Justice [2008] IEHC 384 (Unrep, Hedigan J, 12/12/2008), O(E) v Minister for Justice [2008] IEHC 433 (Unrep, Hedigan J, 18/12/2008), Üner v The Netherlands (App no 46410/99, 18/10/2006), Nwole v Minister for Justice [2003] IEHC 72 (Unrep, Finlay Geoghegan J, 31/10/2003), Keegan v Ireland (1994) 18 EHRR 342, G v DPP [1994] 1 IR 374, Canada (Attorney General) v Ward [1993] 2 RSC 689, DK v Minister for Justice [2006] IEHC 132 [2006] 3 IR 368, R(Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, Agbonlahor (a minor) v Minister for Justice [2007] IEHC 166 (Unrep, Feeney J, 18/4/2007), U(F) v Minister for Justice [2008] IEHC 385 (Unrep, Hedigan J, 11/12/2008) and S(B I)v Minister for Justice [2007] IEHC 398 (Unrep, Dunne J, 30/10/2007) considered - Refugee Act 1996 (No 17), s 5 - Criminal Justice (United Nations Convention Against Torture) Act 2000 (No 11), s 4 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - European Convention on Human Rights Act 2003 (No 20), s 3 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), regs 2 & 5 - Leave refused (2008/1130JR - Hedigan J - 16/01/2009) [2009] IEHC 8

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

Facts: the applicants sought leave to quash, by way of judicial review, the decisions of the first respondent to refuse their appeals against the recommendation of the Refugee Applications Commissioner that they be refused asylum and the decisions of the second respondent to refuse their applications for subsidiary protection and to deport them. The application was made 13 months outside the time limit set for instituting judicial review in respect of the decisions of the first respondent. They contended, inter alia, that the second respondent had applied the incorrect approach when assessing country of origin information and had breached the provisions of section 3 of the European Convention on Human Rights Act 2003 and the UN Convention on the Rights of the Child in refusing the applications for subsidiary protection and deporting them.

Held by Mr Justice Hedigan in refusing the applicant leave to seek judicial review:

1. That where there was inordinate delay in instituting judicial review applications seeking certiorari of a decision of the Refugee Appeals Tribunal the reasons proffered in explanation of the delay had to be exceptional for the Court to be satisfied that there was good and sufficient reason for extending the 14 day time limit set out in section 5 of the Illegal (Immigrants) Trafficking Act 2000.

2. That it was established, as a matter of international refugee law and as a facet of national sovereignty, that there was a general presumption that states were capable of protecting its citizens. It was therefore incumbent on an applicant for refugee status to provide clear and convincing evidence to rebut that presumption. In the absence of evidence that protection may not be reasonably forthcoming, there could not be said to be a failure of state protection where a government had not been given an opportunity to respond to a form of harm. It was thus open to the second respondent to draw from the country of origin information before him that state protection may reasonably have been forthcoming had it been sought by the applicants.

3. That it was not incumbent upon analysing officers in each and every case to assess the proportionality of a deportation or to engage in a balancing exercise as to the competing rights involved.

4. That it was sufficient for the second respondent to have acknowledged that the proposed deportation could engage the applicants’ rights under Article 8 of the European Convention on Human Rights and constitute an interference therewith.

Doubted: whether the requirement to expressly take into account the best interests of a child when assessing the proportionality of a proposed deportation under Article 8 of the European Convention on Human Rights applied at times in all circumstances.

Reporter: P.C.

1 MR. JUSTICE HEDIGAN, delivered on the 16th day of January, 2009.

2 1. The applicants are seeking leave to apply for judicial review of:-

3 a a. The decisions of the Refugee Appeals Tribunal (RAT) to affirm the earlier recommendations of the Refugee Applications Commissioner (ORAC) that the applicants should not be granted declarations of refugee status;

4 b b. The decisions of the Minister for Justice, Equality and Law Reform ("the Minister") to refuse their applications for subsidiary protection; and

5 c c. The decisions of the Minister to make a deportation orders in respect of them.

Factual Background

6 2. The first named applicant was born in Nigeria in 1986. According to her account of events, she married in 2001 and suffered a miscarriage in 2002 as a result of pressure to undergo genital circumcision. She refused to undergo the procedure and claims to have been beaten up as a result. She travelled to the UK in 2003 when she fell pregnant again but was immediately deported. She returned to live with her husband in Lagos but miscarried again. Three years later, when she fell pregnant for a third time, her husband paid an agent to arrange her travel to Ireland; she was seven months pregnant when she arrived in Ireland in June, 2006. She gave birth to a daughter, the second named applicant, on 14 ^th September, 2006; the child is a national of Nigeria.

Procedural Background

7 3. The first named applicant applied for asylum in July, 2006. She opted to make a separate asylum application on her daughter's behalf, after her birth. In her own ORAC questionnaire, she claimed to fear that she would be forcibly subjected to genital circumcision if returned to Nigeria; when filling out her daughter's ORAC questionnaire, she asserted the same fear on behalf of her daughter. Separate ORAC interviews were conducted in respect of mother and daughter. The first named applicant was notified by letter dated 3 ^rd November, 2006 that a negative recommendation had issued from ORAC; her daughter was notified likewise one week later. Each applicant appealed to the RAT. Oral hearings took place on 2 ^nd July, 2007, at which each applicant was represented by counsel. The RAT decisions to affirm the ORAC recommendations were notified to the applicants by letters dated 28 ^th August, 2007.

8 4. Each applicant was notified that the Minister was proposing to make a deportation order in respect of her, and that the usual options were available. Representations seeking leave to remain and an application for subsidiary protection were made on behalf...