V.C.E. v Minister for Justice, Equality and Law Reform and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Clark
• Judgment Date: 18 November 2008
• Neutral Citation: [2008] IEHC 418
• Court: High Court
• Date: 18 November 2008

[2008] IEHC 418

THE HIGH COURT

974 JR/2006

E (V C) v Min for Justice & Refugee Applications Commissioner

JUDICIAL REVIEW

BETWEEN

V.C.E.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

REFUGEE ACT 1996 S13(1)

STEFAN v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY 2001 4 IR 203 2002 2 ILRM 134 2001/23/6290

REFUGEE ACT 1996 S11B

IMMIGRATION ACT 2003 S7(f)

IMOH & OKORO v REFUGEE APPEALS TRIBUNAL (BRENNAN) & MIN FOR JUSTICE UNREP CLARKE 24.6.2005 2005/31/6393 2005 IEHC 220

E (E) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP HERBERT 8.5.2008 2008 IEHC 137

N (BN) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP HEDIGAN 9.10.2008 2008 IEHC 308

D (E) v REFUGEE APPLICATIONS CMSN & MIN FOR JUSTICE UNREP CHARLETON 22.2.2008 2008 IEHC 56

O'REILLY v MACKMAN 1983 2 AC 237

Z (A) v REFUGEE APPLICATIONS CMSN & MIN FOR JUSTICE UNREP MCGOVERN 6.2.2008 2008 IEHC 36

MCGOLDRICK v BORD PLEANALA 1997 1 IR 497 1995/10/2825

AKPOMUDJERE v MIN FOR JUSTICE & ORS UNREP FEENEY 1.2.2007 (EX TEMPORE)

IMMIGIRATION

Asylum

Judicial review - Leave - Female genital mutilation - Possibility of internal relocation - Fair procedures - Claim that information relied upon not put to applicant - Whether onus on applications commissioner to identify safe alternative location - Country of origin information - Whether substantial grounds for review - Availability of alternative remedy - Stefan v Minister for Justice [2001] 4 IR 203, Imoh v Refugee Appeals Tribunal [2005] IEHC 220 (Unrep, Clarke J, 24/6/2005), E(E) v Minister for Justice [2008] IEHC 137 (Unrep, Herbert J, 8/5/2008), N v Minister for Justice [2008] IEHC 308 (Unrep, Hedigan J, 9/10/2008), D(E) v Refugee Appeals Commissioner [2008] IEHC 56 (Unrep, Charleton J, 22/2/2008), O'Reilly v Mackman [1983] 2 AC 237, Z(A) v Refugee Appeals Commissioner [2008] IEHC 36 (Unrep, McGovern J, 6/2/2008), McGoldrick v An Bord Pleanala [1997] 1 IR 497 and B(V) v Minister for Justice [2007] IEHC 479 (Unrep, Birmingham J, 13/7/2007) considered - Refugee Act 1996 (No 9), ss 11 & 13 - Leave refused (2006/974JR - Clark J - 18/11/2008) [2008] IEHC 418

E(VC) v Minister for Justice, Equality and Law Reform

1 Judgment of Ms. Justice Clark delivered on the 18th day of November, 2008.

2 This is an application for leave to appeal by way of judicial review a decision of the Refugee Applications Commissioner.

Facts relied upon

3 1. The applicant asserts that she is a Nigerian citizen from Edo State born on the 10 ^th December, 1977. She says that she is a sales assistant for an investment company. Her English is fluent and she comes from a Christian family. She claims that she arrived in the State on the 27 ^th February, 2006, by ship. She brought her birth certificate with her. She came to the State seeking refugee status because, as she says in her application form:-

"I was chosen among the girls to be circumcised in my village. I refused because I was scared of the pains, bleeding and it was not safe for me and my baby, so the elders of the village got angry with my parents and sent a letter to them that they should get me prepared within seven days for the ceremony because it is forbidden to the gods of the land if I don't do it or else I would be forced to do it. I happened to be the one to read the letter for my parents so very early the next morning I ran away from home to the next town near the city where I met a man, Alahaji, who hid me in the house for two days and then advised me that I am not safe in the country."

4 2. She says that Alahaji then at his own expense organised her travel with her unborn baby to Ireland. In her application form she stated the consequences that would follow if she were to return to Nigeria:-

"I will be stoned to death because the villagers believe that I have defied the land for refusing circumcision. The shrine (Ohie) which is the god requires blood for cleansing; and if I am not available a member of my family has to replace me, except I agree to do the circumcision."

5 3. It is claimed that Alahaji took her to some people in the port of Lagos. She sae him giving money to one of the men but she didn't know how much. It took about three weeks to arrive in Ireland. She was given a red passport to hold in case she was checked and it was taken from her by the man Alahaji introduced her to.

The Interview

6 4. The applicant's son was born in the State in April, 2006 and on the 1 ^st July, 2006, the applicant was interviewed on the contents of her application form. She was questioned about female genital mutilation ("FGM") and whether she could consider relocating to avoid the elders of the village who selected her for female circumcision. It was specifically put to her that many reliable authorities say that it is possible to avoid FGM by seeking aid from various Non Governmental Organisations opposed to the practice or to relocate to other parts of the country, especially to Lagos. The BAOBAB organisation which provides support for those fleeing FGM was specifically referred to. The applicant's response was that the village elders would find her no matter where she went in Nigeria and she dismissed the idea that BAOBAB would be of any assistance to her. The interviewer said to her there is a law against FGM. in Edo State where she lives and queried obtaining protection from the police. The response was:-

"Never. The Nigerian police take bribes; they wouldn't do anything because it is tradition".

7 She was then asked could she have moved to somewhere else within Nigeria to avoid being circumcised. She answered:-

"I did it before. I told you that when I was in Ogun State, they came looking for me. There is no place to hide in Nigeria. They would locate me anywhere in Nigeria".

8 She did not accept that any non-Governmental organisations could provide protection for women escaping female circumcision saying:-

"In Nigeria you can forget about protection. If you have a problem, it is you who must deal with it. There is no Government or police protection. The more you report the more you expose yourself and the more problems you will have."

9 5. The applicant failed to be considered a refugee. The Commissioner's report prepared pursuant to s. 13(1) of the Refugee Act 1996 as amended concluded that:-

"the applicant's contention that protection against FGM was not available to her in Nigeria and that she could not have evaded this procedure through normal internal relocation appears to run counter to country of origin information. On the basis of this information, I do not consider that there is a reasonable degree of likelihood that she has a well founded fear of persecution in Nigeria."

10 6. The applicant seeks leave to quash this decision by an order of certiorari on the basis of lack of fair procedures. In the written submissions, the ground for this argument was that the information relied on by the Commissioner in his decision was not put to the applicant. However, this argument was not pursued in the application before me. The applicant relied solely on the assertion that the onus was on the Office of the Refugee Applications Commissioner ("ORAC") to identify a location where the applicant would be safe from the risk of FGM. It was argued that the failure to identify a specific safe location was in breach of the guidelines on international protection in relation to internal flight or relocation as set out by the United Nations High Commissioner for Refugees ("UNHCR") and that the burden of proving that there was a specifically identified safe place to relocate was on the Commissioner.

11 7. The applicant further asserted that the procedure by which her application for refugee status was dealt with was so defective that it would be inappropriate for the case to proceed as an appeal before the Refugee Appeals Tribunal and that in accordance with the Supreme Court decision in Stefan v Minister for Justice [2001] 4 I.R. 203, she should be permitted to challenge the decision of the Refugee Applications Commissioner.

12 8. Ms. Rosario Boyle S.C., counsel for the applicant, based her case on the premise that credibility was not in issue and that the applicant's case of persecution had been proved and that her application had been rejected on the basis of findings contained in country of origin reports.

13 9. Ms. Ann Hartnett O'Connor B.L., for the respondent, argues that while the applicant was not shown the actual country of origin documentation, the information and the source of the documentation was specifically put to her. Any additional country information which was referred in the s. 13(1) report is...