S.I. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 15 February 2016
• Neutral Citation: [2016] IEHC 112
• Docket Number: [2013 No. 558 J.R.]
• Court: High Court
• Date: 15 February 2016

BETWEEN

S.I.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY,

THE REFUGEE APPEALS TRIBUNAL, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2016] IEHC 112

[2013 No. 558 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Appeal against the decision of the Refugee Appeals Tribunal – Judicial review – Fear of persecution – Assessment of internal relocation – The European Communities (Eligibility for Protection) Regulations 2006 – Art. 8 of Directive 2004/83/EC – UNHCR guidelines on international protection on internal flight or relocation – Art. 3 of European Convention on Human Rights (ECHR)

Facts: The applicant sought an order of certiorari for quashing the decision of the second named respondent affirming the determination of the Refugee Applications Commissioner that the applicant not to be declared a refugee. The applicant contended that the basis upon which the internal relocation findings was made by the second named respondent was flawed as it failed to consider the personal circumstances of the applicant owing to her HIV status and widowhood. The applicant submitted that according to the UNHCR Guidelines on International Protection on Internal Flight or Relocation, the burden of proof on internal relocation and identification of the specified area for relocation lay on the second named respondent. The applicant contended that “serious' harm” element of the rider to reg. 5 (2) of the European Communities (Eligibility for Protection) Regulations 2006 should be applied to every asylum cases.

Mr. Justice Richard Humphreys refused to grant an order of certiorari to the applicant. The Court held that non-natives who were subject to expulsions could not have any entitlement to stay in a contracting state in order to continue derive medical and social benefits provided by the expelling state. The Court held that UNHCR Guidelines was not a legal instrument and non-binding on the Court. The Court held that though the decision-maker found in the present case, that there was no well founded fear of persecution, yet it could consider the availability of other options such as internal relocation. The Court observed that the decision-maker was not bound to consider the “serious harm” element of the rider to said reg. 5 (2) of the 2006 Regulations and even if it was to consider that element, there was no evidence that the applicant faced severe difficulties in the country of origin including forced servitude in Ireland. The Court opined that the terms “trafficking”, “persecution”“HIV status” all comprised different forms of human rights violation and those terms were not interchangeable and thus, unless there was compelling reasons to believe that there were inhuman or degrading environment in the country of origin, the “serious harm” element as appearing under said reg. 5 (2) could not be invoked.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 15th day of February, 2016

1 The applicant was born in Nigeria in the early 1970s although she says she is unaware of her date of birth. She claims she encountered difficulties following the death of her husband, whereby in accordance with tribal customs, his brother sought to marry her.

2 In 2003, she came to Ireland. She states that she was ‘ trafficked’ here, although there is nothing to suggest that the trafficking was done without her consent. ‘ Trafficking’ in this context means by reason of an arrangement made with third parties. Applicants tend to refer to such third parties as ‘ agents’ unless of course they are claiming victimisation at the hands of such persons, in which case (and only in which case, as here) these persons are referred to as ‘ traffickers’. In reality, virtually all asylum seekers are trafficked. ‘ Agent’ is an unacceptable and rhetorical term which seeks to normalise and thereby impliedly excuse a trade which seeks to undermine the immigration control system on an industrial scale.

3 The applicant, as I have mentioned, claims that she was victimised (or as her counsel puts it, ‘ duped’) in the context of having arranged to be trafficked to Ireland. She contends that on arrival she was required to perform domestic service and child-minding for a five year period without pay. As the applicant's story unfolded, this claim appeared to take on dimensions beyond non-payment of wages and, as presented by her counsel, involved a claim of domestic servitude, false imprisonment and forced labour.

4 Despite looking after particular children for five years she was unable to state their names, a matter about which the Refugee Applications Commissioner was not altogether satisfied judging from contributions made on the commissioner's behalf at the tribunal hearing. The details of the alleged false imprisonment (‘ not allowed to leave the house’ according to her counsel) and servitude in so far as they are set out on the papers are skeletal, almost to the point of invisibility.

5 On 4th January, 2013, she applied for asylum. That application was rejected by the Refugee Applications Commissioner by decision dated 8th February, 2013.

6 She then appealed to the Refugee Appeals Tribunal. The tribunal member, Mr. Conor Gallagher, B.L., rejected her appeal in a decision dated 2nd July, 2013.

7 This application for leave for judicial review, which is to be telescoped with the substantive hearing, is brought within time.

8 During the hearing before me, Mr. Michael Lynn, S.C., (who appeared with Mr. Paul O'Shea, B.L., who also addressed the court) for the applicant applied for an amendment to ground (c) in order to incorporate certain points she wished to advance in all submissions. This was granted on consent, and I appreciate the practical approach taken to the matter by Mr. Simon Boyle, S.C. (with Mr. Nap Keeling, B.L.) who appeared for the respondents.

Was the assessment of internal relocation contrary to reg. 7 of the 2000 regulations and art. 8 of the qualification directive?

9 Mr. Lynn submitted that the assessment of internal relocation was flawed and contrary to reg. 7 of the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. 518 of 2006), and art. 8 of Directive 2004/83/EC (the qualification directive).

10 He complained firstly that the commissioner held that internal relocation may be unduly harsh (para. 3.3.2 of the commissioner's decision) whereas the tribunal found that internal relocation was available. In relation to this point, I have held in M.N. v. Refugee Appeals Tribunal [2015] IEHC 831 that a tribunal which itself provides an effective remedy against a lower body may nonetheless significantly alter the decision made (para. 23). The appeal to the tribunal is a complete rehearing (see M.A.R.A. (Nigeria) v. Minister for Justice and Equality [2014] IESC 71), and accordingly, the tribunal can vary the decision of the commissioner adversely to the applicant and resuscitate issues decided in the applicant's favour at that level.

11 Secondly, Mr. Lynn complains that the discussion of internal relocation fails to comply with reg. 7 and art. 8 because it fails to consider the personal circumstances of the applicant. However, the tribunal member provides a reasonably detailed decision in relation to internal relocation and has clearly considered the relevant circumstances including the personal circumstances of the applicant, even to the extent that acknowledging that internal relocation would give rise to a challenge for her. The existence of such a challenge is not in itself and in the absence of other factors a basis for concluding that internal relocation is not available.

12 Next, Mr. Lynn sought to advance an argument that under the UNHCR Guidelines on International Protection on Internal Flight or Relocation, 23rd July, 2013, para. 34, the decision maker bears the burden of proof on internal relocation and it is up to the party asserting the availability of such relocation to establish the area concerned and to provide ‘ evidence’ that it is a reasonable alternative. He says that the tribunal has not referred to any ‘ positive evidence’ to show that internal relocation is an option.

13 Even if the UNHCR guidelines were binding, the decision is not flawed within those guidelines, because the tribunal does not say that the burden of proof is on the applicant. It says that there is no evidence to show that internal relocation is not an option.

14 More fundamentally, the UNHCR guidelines are not a legal instrument. If there were an ambiguity in any particular instrument of Irish law which was intended to give effect to an international convention, such as the 1951 Refugee Convention, a court might have regard to that convention or international instruments relevant to it in order to assist informing a view on resolving the ambiguity. However, in this case, there is no relevant ambiguity in the 2006 regulations of the kind that could be resolved by reference to the UNHCR guidelines of 2003. To grant relief to the applicant on the basis of the guidelines would be to give those guidelines a legal status which they do not enjoy and do not purport to have. It is clear on the face of the guidelines that they are intended simply to assist decision makers rather than to purport to provide a definitive interpretation of the Convention or fundamental principles of international law.

15 In particular, under the heading of this argument, Mr. Lynn complains that the need for treatment for the applicant's HIV should have been dealt with in the context of internal relocation, by examining what level of treatment is available and where. It seems to me that this is an attempt to rewrite the decision in a manner favourable to the applicant. It is a matter for the tribunal to assess the personal circumstances of the applicant in accordance with reg. 5(1)(c) of the 2006 regulations. The case made on...