T.U. (Nigeria) and Others v Refugee Appeals Tribunal and Others

JurisdictionIreland
JudgeMs. Justice Stewart
Judgment Date06 February 2015
Neutral Citation[2015] IEHC 61
CourtHigh Court
Date06 February 2015

[2015] IEHC 61

THE HIGH COURT

[No. 706 J.R./2010]
U (T)(Nigeria) & Ors v Refugee Appeals Tribunal & Ors
Approved Judgment
No Redaction Needed
JUDICIAL REVIEW
IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED)
IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED) AND
IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)

BETWEEN

T.U. (NIGERIA) AND
G.D.U. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND T.U.) AND
G.B.U (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND T.U.)
APPLICANTS

AND

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

A (EP) v REFUGEE APPEALS TRIBUNAL UNREP MAC EOCHAIDH 27.2.2013 2013/1/78 2013 IEHC 85

R (E) & R (T) v REFUGEE APPEALS TRIBUNAL & ORS UNREP MACEOCHAIDH 19.4.2013 2013/43/12551 2013 IEHC 165

R (I) v REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

B (C) v REFUGEE APPEALS TRIBUNAL & ORS UNREP BARR 2.10.2014 2014 IEHC 496

B (AS) v REFUGEE APPEALS TRIBUNAL & ORS UNREP BARR 2.10.2014 2014 IEHC 495

S (DM) v MINISTER FOR JUSTICE UNREP PEART 24.11.2005 2005/53/11227 2005 IEHC 395

C (C) v REFUGEE APPEALS TRIBUNAL & ORS UNREP MCDERMOTT 28.10.2014 2014 IEHC 491

D (K) [NIGERIA] v REFUGEE APPEALS TRIBUNAL & ORS 2013 1 IR 448 2013/12/3517 2013 IEHC 481

I (E) & I (A) (MINORS) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (O'GORMAN) 30.1.2014 2014 IEHC 27

S (DVT) v MIN FOR JUSTICE 2008 3 IR 476 2007/54/11621 2007 IEHC 305

A (A) v REFUGEE APPEALS TRIBUNAL UNREP CLARK 8.10.2009 2009/1/29 2009 IEHC 445

G (I) v REFUGEE APPEALS TRIBUNAL & ORS UNREP MAC EOCHAIDH 11.4.2014 2014 IEHC 207

G (AM) [PAKISTAN] v REFUGEE APPLICATIONS CMSR & ORS UNREP BARR 25.7.2014 2014 IEHC 379

REFUGEE ACT 1996 S11B(B)

T (F) v REFUGEE APPEALS TRIBUNAL & ORS UNREP MAC EOCHAIDH 18.4.2013 2013/49/13971 2013 IEHC 167

REFUGEE ACT 1996 S11B(C)

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S5(2)

Immigration and asylum – Refugee status – Order of certiorari – Applicant seeking order of certiorari quashing the decision of the Refugee Appeals tribunal – Whether the decision of the tribunal was irrational

Facts: The first applicant is a Nigerian national. The second applicant, her son, was born in Nigeria in September, 2003. The third applicant, also her son, was born in April, 2008, in Ireland. In November, 2006 the second applicant was forcibly circumcised at the family home. The mother was four months pregnant with the third named applicant when she was informed by her husband”s family that he would also be circumcised in accordance with tradition. The paternal family would not agree to a circumcision being performed in hospital. The husband left the family home and advised his wife to do likewise. The husband effectively abandoned his wife and child. The first applicant stated that she was threatened with death by the husband”s family as she told them that they would never be allowed to circumcise her unborn child. She left and was kept in hiding in her church which subsequently organised the travel arrangements from Nigeria. The first and second applicants arrived in Ireland in February, 2008, and claimed asylum. Following the birth of the third applicant he was further added to the asylum application. The Refugee Appeals Commissioner recommended that the applicant be refused a grant of refugee status, for reasons of credibility findings and further a finding that persons seeking to avoid circumcision could relocate internally. The applicants appealed to the first respondent, the Refugee Appeals Tribunal, and it was submitted that their claim came within membership of a particular social group. A medical report was submitted to the tribunal. The decision of the Commissioner was affirmed by the tribunal in May, 2010. The tribunal made credibility findings in respect of the abandonment by the husband, perceived inconsistencies in relation to addresses furnished, travel, initially claiming to be from Sierra Leone and errors in the birth certificate furnished. The tribunal held the medical report was not sufficiently compelling. The tribunal further found that internal relocation would not be unduly harsh. The applicants applied to the High Court for judicial review seeking an order of certiorari quashing the decision of the tribunal. The applicants contended that the tribunal wholly failed to make any finding with respect to the evidence that the second applicant had been subjected to a traditional circumcision or the potential exposure of the third applicant to a like circumcision, and thereafter to determine whether such treatment amounted to persecution, citing EPA v Refugee Appeals Tribunal [2013] IEHC 85. The applicants contended that the decision of the tribunal was irrational in light of the country reports before the tribunal. The respondents submitted that the inconsistencies in the first applicant”s account undermine her personal credibility. The respondents submitted that it was reasonable, given the contradictions and inconsistencies in the applicant”s story, for the tribunal member to find this negated any probative value the medical report might have. In circumstances where the first applicant was found to be lacking in personal credibility, the respondent submitted that the tribunal”s finding on internal relocation could be severed from the decision.

Held by Stewart J that forceful circumcision via the traditional route is an act which could constitute a serious assault and which, dependent on the circumstances of the particular case, could give rise to the need for international protection in accordance with s.5(2) of the Refugee Act 1996.

Stewart J held that in the light of the tribunal member”s failure to deal with the core aspects of the applicants” claim and to make findings in respect of those core aspects she was satisfied to grant leave and to further grant an order of certiorari quashing the decision of the tribunal. She further made an order remitting the matter to the tribunal for a de novo consideration by a different tribunal member. Stewart J did not determine the internal relocation ground as it was purportedly carried out in circumstances where the core basis of the applicants” claims had not been addressed.

Application granted.

1

1. This is a telescoped application for judicial review wherein the applicants seek an order of certiorari quashing the decision of the first named respondent made on the 17 th May, 2010, affirming the recommendation of the Refugee Applications Commissioner to refuse the applicants refugee status, and notified to the applicants not earlier than the 23 rd May, 2010.

BACKGROUND
2

2. The information supplied by the first named applicant is that she was born in Nigeria on the 7 th January, 1978; the second named applicant, her son, was born in Nigeria on the 24 th September, 2003; and the third named applicant, also her son, was born on the 3 rd April, 2008, in Ireland. In or around the month of November, 2006 the second named applicant was forcibly circumcised at the family home in accordance with the traditional practices and beliefs of his paternal family. The mother was four months pregnant with the third named applicant when she was informed by her husband's family that he would also be circumcised in accordance with tradition. The paternal family would not agree to a circumcision being performed in hospital. The husband, who had agreed with the views of his wife regarding the home circumcision left the family home and advised his wife to do likewise. The first named applicant's husband effectively abandoned his wife and child and there has been no contact with him since. The first named applicant states that she was threatened with death by the husband's family as she told them that they would never be allowed to circumcise her unborn child. She states that she left and slept in her church where she was kept in hiding for the following four months. The church subsequently organised the travel arrangements from Nigeria. The first and second named applicants arrived in Ireland on the 11 th February, 2008, and claimed asylum. Following the birth of the third named applicant on the 3 rd April, 2008, he was further added to the first applicant's asylum application.

3

3. The Refugee Appeals Commissioner (hereinafter the Commissioner) recommended that the applicant be refused a grant of refugee status, for reasons of credibility findings relating to the husband's abandonment of his family and travel arrangements to Ireland, and further a finding that persons seeking to avoid circumcision could relocate internally within Nigeria. The Commissioner recommended that the applicant could seek available support from NGOs who help women to avoid circumcision, stating that although the applicant wishes to avoid male circumcision, "there is no reason to believe women's groups could not support her". (p.69 of the booklet). The Commissioner made no finding with respect to the circumcision of the second named applicant or the likely exposure of the third named applicant to a similar circumcision were he to be returned to Nigeria and further failed to make any determination as to whether such treatment amounted to persecution within the meaning of the Convention.

4

4. All three applicants appealed the recommendation of the Commissioner to the Refugee Appeals Tribunal (hereinafter the tribunal) and it was submitted that their claim came within membership of a particular social group. A medical report from the general hospital in Agbor that stated that the second named applicant "was admitted in this hospital on 11 th November, 2006, due to continuous bleeding and swollen scrotum as a result of the circumcision carried (sic) on him", was submitted to the tribunal, as was an additional letter from O[…] Emily, a friend of...

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