T.F. (Nigeria) v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Stewart
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 551
• Docket Number: [2014 No. 106 M.C.A.]
• Court: High Court
• Date: 29 July 2016

IN THE MATTER OF S.21 OF THE REFUGEE ACT 1996

BETWEEN

T.F. (Nigeria)

APPELLANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES

NOTICE PARTY

[2016] IEHC 551

[2014 No. 106 M.C.A.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – S. 21 of the Refugee Act 1996 – Statutory appeal – Revocation of declaration of refugee status – Fear of persecution – False and misleading information – Burden of proof

Facts: The appellant filed an appeal under s. 21 (5) of the Refugee Act 1996 against the decision of the respondent for revoking the declaration of refugee status granted to the appellant. The appellant contended that the appellant did not provide any false or misleading information to the respondent. The appellant argued that the burden of proof rested with the respondent in the appeal, because it was the respondent who had alleged that the appellant had provided misleading information to the effect that her refugee status ought to be revoked. The respondent contended that the appellant had presented the documents containing false and misleading information to the respondent. The respondent argued that the appellant's ground of fear of persecution by the appellant's husband was not established. The respondent rejected the appellant's claim that the burden of proof had rested on the respondent and contended that as a matter of first principles, the burden rested on the appellant in bringing the proceedings to the High Court to prove her case.

Ms. Justice Stewart dismissed the appeal of the appellant. The Court held that the burden of proof had rested on the appellant to establish the case for a direction that the respondent withdrew impugned decision. The Court found that the appellant had failed to discharge the burden of proof resting on the appellant that the information furnished to the asylum authorities was not false or misleading. The Court held that appellant's stated fear of persecution by the appellant's husband and in-laws on ground of unusual ritual of facial scarring of the appellant's child could not be regarded as real, taking into account the ongoing relationship of the appellant and the appellant's husband. The Court observed that there were contradictions and discrepancies in the evidence of the appellant and that the appellant was an unreliable witness.

JUDGMENT of Ms. Justice Stewart delivered on the 29th day of July, 2016.

Introduction/burden of proof

1 This is a statutory appeal pursuant to s.21 (5) of the Refugee Act 1996 (as amended) against the decision of the respondent to revoke the appellant's declaration of refugee status. The appeal is commenced by way of an originating notice of motion issued on 13th of March, 2014 and made returnable before the High Court on 7th of April, 2014. The procedure to be followed in the statutory appeals grounded upon an originating Notice of Motion is clearly set out in Order 84C of the Rules of the Superior Courts (RSC). Although there are extensive affidavits and written submissions filed in these proceedings, and, notwithstanding that the originating Notice of Motion sought, inter alia, directions with regard to the hearing of the matter, no such directions were sought or given at any stage prior to the commencement of the hearing. It seems to me that it would be prudent if directions were sought at an early stage in future applications of this nature. The directions should focus particularly on identifying the issues to be tried at the hearing and the position of the respective parties on each of those issues.

2 Section 21 of the 1996 Act sets out the conditions for the revocation of refugee status and the recourse to the High Court in the form of an appeal of the Minister's decision. It is worthwhile reciting s. 21 in full:-

'Revocation of declaration

21.—(1) Subject to subsection (2), if the Minister is satisfied that a person to whom a declaration has been given—

(a) has voluntarily re-availed himself or herself of the protection of the country of his or her nationality,

(b) having lost his or her nationality, has voluntarily re-acquired it,

(c) has acquired a new nationality (other than the nationality of the State) and enjoys the protection of the country of his or her new nationality,

(d) has voluntarily re-established himself or herself in the country which he or she left or outside which he or she remained owing to fear of persecution,

(e) can no longer, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of his or her nationality,

(f) being a person who has no nationality is, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, able to return to the country of his or her former habitual residence,

(g) is a person whose presence in the State poses a threat to national security or public policy (ordre public), or

(h) is a person to whom a declaration has been given on the basis of information furnished to the Commissioner or, as the case may be, the Tribunal which was false or misleading in a material particular, the Minister may, if he or she considers it appropriate to do so, revoke the declaration.

(2) The Minister shall not revoke a declaration on the grounds specified in paragraph (e) or (f) where the Minister is satisfied that the person concerned is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself of the protection of his or her nationality or for refusing to return to the country of his or her former habitual residence, as the case may be.

(3)(a) Where the Minister proposes to revoke a declaration under subsection (1), he or she shall send a notice in writing to the person concerned of his or her proposal and of the reasons for it and shall at the same time send a copy thereof to the person's solicitor (if known) and to the High Commissioner.

(b) A person who has been notified of a proposal under paragraph (a) may, within 15 working days of the issue of the notification, make representations in writing to the Minister and the Minister shall—

(i) before deciding the matter, take into consideration any representations duly made to him or her under this paragraph in relation to the proposal, and

(ii) send a notice in writing to the person of his or her decision and of the reasons for it.

(4)(a) A notice under subsection (3)(a) shall include a statement that the person concerned may make representations in writing to the Minister within 15 working days of the issue by the Minister of the notice.

(b) A notice under subsection (3) (b) (ii) shall include a statement that the person concerned may appeal to the High Court under subsection (5) against the decision of the Minister to revoke a declaration under subsection (1) within 15 working days from the date of the notice.

(5) A person concerned may appeal to the High Court against a decision of the Minister under this section and that Court may, as it thinks proper, on the hearing of the appeal, confirm the decision of the Minister or direct the Minister to withdraw the revocation of the declaration.

(6) A person concerned shall not be required to leave the State before the expiry of 15 working days from the date of notice of a proposal under subsection (3) and, if an appeal is brought against the decision of the Minister, before the final determination or, as the case may be, the withdrawal of the appeal.

(7) The Minister may, at his or her discretion, grant permission in writing to a person in respect of whom a declaration has been revoked under subsection (1) to remain in the State for such period and subject to such conditions as the Minister may specify in writing.'

3 Article 14 of Counsel Directive 2004/83/EC of 29 April, 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, O.J. L304/12 30.9. 2004 provides:-

'3. Member States shall revoke, end or refuse to renew the refugee status of a third country national or a stateless person, if, after he or she has been granted refugee status, it is established by the Member State concerned that: [...]

(b) his or her misrepresentation or omission of facts, including the use of false documents, were decisive for the granting of refugee status.'

4 Regulation 11 of the European Communities (Eligibility for Protection) Regulations 2006 states:-

'Refusal to grant or renew or revocation of a declaration

11. (2) Where—

(a) paragraph ... (h) of section 21(1) of the 1996 Act applies, as respects a person to whom a declaration has been given,

(b) a person to whom a declaration has been given misrepresented or omitted facts (including through the use of false documents) and this was decisive for the granting of the declaration, [...]

the Minister shall, without prejudice to section 21(2) of the 1996 Act, revoke or, as the case may be, refuse to renew the declaration.'

Background

5 The appellant is a Nigerian national born on REDACTED in Lagos State, Nigeria. She has nine years of formal education, having attended primary school from REDACTED to REDACTED and a hairdressing school from REDACTED to REDACTED. She has three children. Her father remains in Nigeria and her mother is deceased.

6 The appellant's version of events is as follows. She was married on REDACTED. Upon finding out that she was pregnant, she decided to leave Nigeria. The cultural rites practiced by her husband and his extended family required the first child of every marriage to be scarred with a tribal mark on their face. The appellant could not accept...