Salu (A Minor) v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 19 December 2006
• Neutral Citation: [2006] IEHC 411
• Date: 19 December 2006
• Court: High Court
• Docket Number: [No. 624 J.R./2003]

S (E) v MINISTER FOR JUSTICE

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996 AND THE

IMMIGRATION ACT 1999

BETWEEN

EHI SALU (A MINOR) SUING THROUGH HIS MOTHER AND NEXT FRIEND EDITH SALU

APPLICANT

AND

MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND OFFICE OF THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

[2006] IEHC 411

[No. 624 J.R./2003]

THE HIGH COURT

IMMIGRATION: asylum

Facts: The applicant minor sought to have his application for refugee status made separately to his parent and alleged inter alia that the absence of such a statutory entitlement was in breach of constitutional and natural justice

Held by Feeney J. that there was no obligation on the respondent to interview the minor child as he was accompanied by his parents and guardian. No separate facts as to the minor were suggested to be applicable such that natural and constitutional justice warranted a separate interview. No international provision required such a provision as alleged.

Reporter: E.F.

REFUGEE ACT 1996 S17

IMMIGRATION ACT 1999 S3(2)(f)

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S16(2)(a)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

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

NWOLE v MIN JUSTICE UNREP PEART 26.5.2004 2004 IEHC 433 2005/44/9307

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(a)

DADA v MIN FOR JUSTICE & REFUGEE APPLICATIONS COMMISSIONER UNREP MACMENAMIN 31.7.2006 2006 IEHC 166

NORTH WESTERN HEALTH BOARS v W (H) & W (C) 2001 3 IR 622

Mr. Justice Feeney

2 1.1 The Applicant in this case is a minor who is a national of Nigeria. He was born on 28th day of February, 1992 and arrived in Ireland in mid February 2000. The Applicant's mother, the next friend herein, was already in Ireland having arrived on 28th December, 1998 and on arrival had made an application for a declaration of refugee status.

3 1.2 Edith Salu, the mother, was interviewed on 8th day of January, 1999 and completed the questionnaire in relation to the application for refugee status on 11th day of January, 1999. In that questionnaire and at the interview she indicated that she had two children who were with her husband and their father in Nigeria and the details on the questionnaire confirmed that one of those two children was Ehi Salu, the Applicant herein.

4 1.3 The application of the mother and next friend Edith Salu was dealt with under the Hope Hanlan procedures as the relevant provisions of the Refugee Act were not in force at that time. The central basis of Edith Salu's application for refugee status was a claim that she was in fear as a result of her refusing to join the Ogboni Society. Edith Salu indicated that she was a member of a trade union and had come under pressure to join the Ogboni which was a society which carried out rituals. Edith Salu claimed that the Ogboni carry out rituals and that you would be asked to bring a child or best friend who would be killed in a ritual.

5 1.4 Edith Salu's application for asylum was initially assessed by the first named Respondents on 11th January, 1999. That assessment raised issues concerning the details and information provided by Edith Salu and in particular in relation to the means and circumstances of her arrival in Ireland.

6 1.5 When Ehi Salu arrived in Ireland he made an application for refugee status. That application was made on 21st day of February, 2000. On making that application the Applicant was issued with an ASY/1 Form on 21st February, 2000. The reference number attached to the Applicant's application for refugee status was the same as his mothers except that there was a C at the end of the reference rather than a B. When the Applicant made his application on 21st February, 2000 he attended with his mother. The fact that the Applicant was accompanied by his mother when making his application on 21st February, 2000 was confirmed in the replying affidavit of Edith Salu sworn herein on 8th December, 2005. In February, 2000, the Applicant had his eighth birthday.

7 1.6 The details provided in support of the Applicant's application for refugee status on 21st February, 2000 were provided by his mother. The mother indicated that her son's date of arrival in Ireland was 14th February, 2000 and that he had arrived by air and indicated that a man had brought him and that she thought that his dad made the arrangements. The reasons for seeking asylum were identified at that time as "social". Ehi Salu was provided with the documents referred to in the ASY/1 Form including the questionnaire regarding application for refugee status.

8 1.7 On the same day that the Applicant applied for refugee status he was provided with a letter confirming that an application for refugee status had been made quoting the reference number. No questionnaire was ever completed. As and from the time of the Applicant's arrival he lived with his mother in this country.

9 1.8 As the relevant provisions of the Refugee Act 1996 (as amended) did not come into effect until 20th November, 2000, the Applicant's application would have been processed under the Hope Hanlan procedures. Those procedures contain no reference as to the practice to be followed in relation to applications from minors for refugee status.

10 1.9 Given that the Applicant was accompanied by his mother when he made his application for refugee status and in the light of the fact that his mother had already made an application the Applicant was assigned the same reference number as his mother in accordance with standard practice. This standard practice is confirmed in the affidavit of Martin O'Mahony sworn herein. The position in relation to accompanied minors as of 2000 is dealt with at paragraph 11, where he avers to the then process. This has since altered as a result of new procedures introduced in August 2002. In 2000 the position was that the Commissioner recognised the right of the minor Applicant to have his or her application for asylum separately considered if there was a request to do so made by either of the child's parents. It is confirmed in the said affidavit that if such a request was made a separate investigation of such application would have been carried out. The factual position in relation to this Applicant is that no request was made and no questionnaire regarding the Applicant's application for refugee status was completed or submitted.

11 1.10 On the 1st September, 2001 the Applicant's father applied for refugee status having arrived in Ireland on the previous day. In that application he identified that his wife Edith and child Ehi were in Ireland. In answer as to why he was seeking asylum the Applicant's father indicated that his wife was having problems in that she was being pressurised to join a secret cult known for fetish acts and human sacrifice and that that cult had tried to kidnap his son on his way to school and that it was decided that his wife and son should leave the country and seek refuge wherever they could. The father's application for refugee status was dealt with under the same reference number as his wife's and child's except the letter A was added to the end which is the letter used for fathers B being for mothers and subsequent letters such as C, D being for children.

12 1.11 On 12th July, 2002 the mother Edith Salu attended for a further interview as an Applicant for refugee status. That interview was carried out by a different interviewer from the original interview. During the interview she confirmed that she had two children one of them being in Ireland namely Ehi. As of the date of the interview Edith Salu confirmed that her husband was with her in Ireland and that he had applied for asylum and that that application had gone to appeal. The mother reiterated that she was seeking refuge because she was in fear of the Ogboni due to the fact that when you enter that cult they either use your child or your best friend for rituals. She also confirmed that she refused to join the society and that she had been attacked in August 1998 and it had been intimated that she would be killed if she did not join the society. She expressly stated that her fear was that if she had to return to Nigeria that she would be at risk of persecution from the Ogboni society and at the end of the interview she confirmed that there was nothing else that she wanted to add other than that she was still in fear of persecution and that Nigeria was a very corrupt country. She also confirmed that her husband had come to Ireland for similar reasons and at the conclusion of the interview she again confirmed that she did not have anything else to say.

13 1.12 Following that interview a recommendation was made that the application for refugee status of Edith Salu should be refused and that she should not be declared a refugee. By letter dated the 16th August, 2002, Edith Salu was duly informed of the decision to refuse her application for refugee status and she appealed that refusal. The appeal was considered by the Refugee Appeals Tribunal and by letter dated 14th February, 2003 Edith was informed that the recommendation of the Refugee Applications Commissioner had been confirmed.

14 1.13 By letter 16th April, 2003 from the Department of Justice Equality and Law Reform Edith Salu was referred to her application "for a declaration as a refugee in accordance with s. 17 of the Refugee Act, 1996, as amended by the Immigration Act, 1999, and the Illegal Immigrants (Trafficking) Act 2000, for you and your child as named above. The Refugee Applications Commissioner following an investigation of your application under s. 11 of the Refugee Act 1996 (as amended), has recommended that you be refused a declaration as a refugee under s. 13 of the Refugee Act, 1996 (as amended). The Refugee Appeals Tribunal has affirmed this recommendation, in accordance with s. 16(2)(a)...