O.E. v Minister for Justice, Equality and Law Reform and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice McDermott
Judgment Date19 December 2013
Neutral Citation[2013] IEHC 586
Date19 December 2013

[2013] IEHC 586

THE HIGH COURT

[No. 182 J.R./2009]
[No. 313 J.R./2010]
[No. 277 J.R./2011]
E (O) v Min for Justice & Refugee Appeals Tribunal (Levey)
JUDICIAL REVIEW

BETWEEN

O.E.
APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND MARGARET LEVEY (SITTING AS THE REFUGEE APPEALS TRIBUNAL)
RESPONDENTS
P.E.E.

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND
F.E. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND O.E.)

AND

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

REFUGEE ACT 1996 S11

IMMIGRATION ACT 1999 S3

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

L (BMJ) & ORS [DEMOCRATIC REPUBLIC OF CONGO] v MIN FOR JUSTICE & ORS UNREP CROSS 14.2.2012 2012/22/6285 2012 IEHC 74

D (T) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 25.1.2011 2011/10/2394 2011 IEHC 37

RSC O.84 r21

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

REFUGEE ACT 1996 S12(1)

EEC DIR 2005/85 ART 23

EEC DIR 2005/85 ART 39

CONSTITUTION ART 34.1

CONSTITUTION ART 34.3

CONSTITUTION ART 43.1

CONSTITUTION ART 43.2

RSC O.84A(4)

EEC DIR 89/665

RSC O.84

REFUGEE ACT 1996 S13

UNHCR GUIDELINES ON INTERNATIONAL PROTECTION PARA 34

EEC DIR 2004/83 ART 8

JANUZI v SECRETARY OF STATE FOR THE HOME DEPT 2006 2 AC 426 2006 2 WLR 397 2006 3 AER 305 2006 UKHL 5

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

DARJANIA v REFUGEE APPEALS TRIBUNAL (O'BRIEN) & MIN FOR JUSTICE UNREP MCGOVERN 7.7.2006 2006/14/2948 2006 IEHC 218

I (M) v REFUGEE APPEALS TRIBUNAL (O'GORMAN) UNREP MCDERMOTT 26.7.2013 2013 IEHC 368

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

MESSAOUDI & EDOBOR v CHAIRPERSON OF THE REFUGEE APPEALS TRIBUNAL & ORS UNREP FINLAY GEOGHEGAN 29.7.2004 2004/30/7084 2004 IEHC 156

BITI v REFUGEE APPEALS TRIBUNAL (RYAN) & ORS UNREP FINLAY GEOGHEGAN 24.1.2005 2005/4/827 2005 IEHC 13

REFUGEE ACT 1996 S11B

REFUGEE ACT 1996 S17

D (HI) & A (B) v REFUGEE APPLICATIONS CMSR & ORS 2013 2 CMLR 809 2013 AER (D) 74 (FEB)

M v MIN FOR JUSTICE & ORS 2013 1 WLR 1259 2012 AER (D) 284 (NOV)

M (M) v MIN FOR JUSTICE & ORS (NO 3) UNREP HOGAN 23.1.2013 2013 IEHC 9

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

P (F) & L (A) v MIN FOR JUSTICE; B (C) v MIN FOR JUSTICE 2002 1 IR 164 2002 1 ILRM 38 2001/20/5496

EEC DIR 2005/85 CHAP V

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

REFUGEE ACT 1996 SCHED 2 PARA 14

REFUGEE ACT 1996 S15

IMMIGRATION ACT 1999 S11

IMMIGRATION ACT 2003 S7

EFE & OLUKAYODE v MIN FOR JUSTICE & ORS (NO 2) 2011 2 IR 798 2011 2 ILRM 411 2011/20/4992 2011 IEHC 214

IMMIGRATION

Asylum

Application for leave - Certiorari - Application for extension of time - Negative credibility findings - Subsidiary protection refused - Order for deportation of husband executed - Limitation period - Priority to applications by Nigerian asylum seekers - Declarations of incompatibility sought - Fear of female circumcision - Fear of political persecution - Inconsistencies - Finding in relation to husband's claim relevant to wife's claim - Internal relocation - Delay in arriving at decision - Duty to determine appeal within reasonable period - Children's interests - Whether substantial grounds upon which to grant leave to apply for judicial review - Whether substantial grounds to justify extension of time - Whether reasonable to expect applicant to seek refuge in different part of country - Whether biased - Whether pre-judgment of wife's claim - Whether claim properly analysed - Whether tribunal member properly weighed and assessed evidence - Whether delay was breach of right to good administration - Whether delay so unreasonable as to render decision flawed - Whether failure to apply provisions of s 11(b) of the Refugee Act 1996 - Whether best interests of children considered in making of deportation order - Whether claim unlawfully prioritised - L(BMJ) v Minister for Justice and Equality [2012] IEHC 74, (Unrep, Cross J, 14/2/2012); TD v Minister for Justice, Equality and Law Reform (Unrep, Hogan J, 25/1/2011); Januzi v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426; Imoh v Refugee Appeals Tribunal (Unrep, Clarke J, 24/6/2005); LD v Refugee Appeals Tribunal [2006] IEHC 218, [2006] 3 IR 439; MI v Refugee Appeals Tribunal [2013] IEHC 368, (Unrep, McDermott J, 26/7/2013); IR v Minister for Justice, Equality and Law Reform [2009] IEHC 353, (Unrep, Cooke J, 24/7/2009); AM v Chairperson of the Refugee Appeals Tribunal (Unrep, High Court, 29/7/2004); Biti v Refugee Appeals Tribunal [2005] IEHC 13, (Unrep, Finlay-Geoghegan J, 24/1/2005); HID & BA v Refugee Applications Commissioner (Case C-175/11) (Unrep, ECJ, 31/1/2013); MM v Minister for Justice, Equality and Law Reform (Case C-277/11) (Unrep, First Chamber, 22/11/2012); MM v Minister for Justice and Law Reform (No 3) [2013] IEHC 9, (Unrep, Hogan J, 23/1/2013) and FP v Minister for Justice [2002] 1 IR 164 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21 - Refugee Act 1996 (No 17), ss 11, 12(1) and 17 - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Constitution of Ireland 1937, arts 34(1), 34(3), 43(1) and 43(2) - Council Directive 2005/85/EC, arts 23 and 39 - Directive 89/665 - European Convention on Human Rights, art 13 - Council Directive 2004/83/EC, art 8 - Applications refused (2009/182JR, 2010/313JR & 2011/277 JR - McDermott J - 19/12/2013) [2013] IEHC 586

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

Facts: The applicants came before the court in three separate sets of proceedings and were Nigerian nationals who had sought a declaration of refugee status. O.E. and P.E.E. had claimed that the husbands” family wished to have both their daughters circumcised. The respondent Tribunal had found numerous inconsistencies in respect of which the Court had found the husband not to be credible. A total of fifteen grounds were elide upon in relation to the mother”s application, relating to internal relocation, reliance upon a decision in the applicant”s husbands appeal, the failure to use up to date country of origin information, the failure to apply a forward-looking tests and a delay in arriving at a decision.

Held by McDermott J. having regard to all of the evidence and materials submitted to the court, there was no basis upon which to grant leave for judicial review or to extend time. Substantial grounds had not been advanced. The grounds were vague and lacking in specificity. The decision of the Tribunal was intelligible, clear and focused. The Tribunal had made findings in respect of all the issues.

1

1. These three applications come before the court in three separate sets of proceedings. O.E., the first named applicant, (Record No. 2009 182 J.R.) is married to P.E.E., the second named applicant (Record No. 2010 313 J.R.) and are the parents of F.E., the third named applicant (Record No. 2010 277 J.R.).

2

2. O.E. and P.E.E. are Nigerian nationals, who were married on 23 rd December, 1999. Prior to their arrival in Ireland they had two daughters, P.B., born on 20 th July, 2000, and P.P., born on 31 st January, 2004. They left Nigeria on 30 th January, 2008, and arrived in Ireland the following day. O.E. made an application for a declaration of refugee status on her own behalf and on behalf of her daughters and P.E.E. made a separate application on his own behalf. On 28 th June, 2008, O.E. gave birth to their third daughter, F.E., on whose behalf an application for refugee status was submitted on 15 th November, 2009, by her mother.

Procedural History
3

3. O.E. completed a questionnaire on her own behalf and on behalf of P.B. and P.P. on 12 th February, 2008. She then attended for interview on 18 th February, 2008, under s. 11 of the Refugee Act 1996. A decision of the Refugee Applications Commissioner recommended that the applicant should not be declared a refugee on 19 th February, 2008. This decision was appealed to the Refugee Appeals Tribunal and the appeal was rejected on 22 nd January, 2009, following an oral hearing held on 26 th May, 2008. Notice of the decision was furnished by letter dated 30 th January, 2009, and received by the applicant on 2 nd February, 2010.

4

4. Following the birth of F.E., O.E. made an application on the child's behalf for a declaration of refugee status and completed an ASY1 form on 15 th November, 2009. O.E. then attended for interview in respect of this application on 27 th November. The Commissioner recommended that F.E. not be granted refugee status for the same reasons as the previous decision in respect of the mother and her two sisters. This was appealed to the Refugee Appeals Tribunal and following a further hearing on 11 th August, 2010, the Tribunal rejected the appeal on 7 th March, 2011. This was notified by letter dated 15 th March, received on or about 18 th March.

5

5. P.E.E., having applied on his own behalf for refugee status on 31 st January, 2008, completed a questionnaire on 11 th February, 2008. He subsequently attended for a s. 11 interview on 14 th February. The Refugee Applications Commissioner recommended that he not be granted refugee status on 21 st February. The applicant appealed this decision to the Refugee Appeals Tribunal by notice of appeal dated 20 th March, 2008. The Refugee Appeals Tribunal rejected the appeal on 22 nd January, 2009, following a hearing which also took place on 26 th May, 2008. It should be noted that the same tribunal member, Ms. Margaret Levey B.L., determined each of these appeals.

6

6. P.E.E. following receipt of the three options letter made an application for subsidiary protection on...

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