S. -v- MJELR & Ors, [2008] IEHC 238 (2008)

Docket Number:2006 1159 JR
Party Name:S., MJELR & Ors
Judge:McMahon J.




The applicant in these proceedings seeks leave to bring judicial review proceedings to quash the decision of the Refugee Applications Commissioner (hereafter "the Commissioner") dated the 15th August, 2006, that the applicant failed to establish a well founded fear of persecution as defined in s. 2 of the Refugee Act 1996 (as amended) and a recommendation that the applicant should not be declared a refugee.

The applicant has also without prejudice to these proceedings lodged an appeal to the Refugee Appeals Tribunal. This means that the applicant, in the event of leave being refused, will be entitled to a full oral hearing of her case where all the issues she complains of can be fully ventilated by her legal team at such hearing. Moreover, her ability to argue her case will be strengthened by the fact that she and her legal team will, in such an eventuality, have prior notice of the issues identified by the Commissioner (and further ventilated in this court) and will be better able to address them on that occasion. The availability of this alternative remedy is an important consideration which this court may take in account in determining whether judicial review is an appropriate remedy in the circumstances.

I have read all of the papers including the legal submissions and I have listened carefully to the oral arguments submitted by both sides.

In cases such as this it is important to remember that this court is not here to substitute its view of the facts for that of the Commissioner. If the applicant's complaint is concerned only with the outcome or the decision of the Commissioner she must confine herself to the appeal process. It is only if the challenge to the Commissioner's decision goes to jurisdiction (i.e. if it is illegal or contrary to legislation) or a failure to apply fair procedures that judicial review might be available. In judicial review proceedings the court focuses on the process of the investigation and provided this was carried out properly and with due regard to fair procedures the court will not interfere. Specifically, the court will not substitute its view for that of the Commissioner who is appointed as an expert and who has conducted the interview. To succeed at the leave stage in judicial review the applicant must prove to the court that there are substantial grounds why such leave should be granted in this case.

Factual Background

The applicant is a Nigerian national who left her country of origin on the 9th May, 2006 and arrived in the State on the 10th May, 2006. She entered the State illegally, and she had not applied for asylum anywhere else en route to this State. She applied for asylum on the 11th May, 2006. She completed a questionnaire on the 16th May, 2006.

The applicant is a 29 year old woman, she is a Muslim and a member of the Yoruba tribe. She was married by religious rite on the 16th December, 2005. Her husband came with her to Ireland. Her parents are still alive, and they and her three siblings still live in Nigeria. The applicant attended University and has a BA in History which she completed in September, 2001.

At question 22 of the questionnaire, the applicant stated that she was claiming asylum because of religion. At question 21, she stated that her problem began on the 14th February, 2000, when she first introduced her husband to her parents as the man she wanted to marry and they rejected him because they had already promised her to a chief priest. She stated that she did not report the matter to the police and that she had lived in a different part of Nigeria for seven months before travelling to this State. She did not have to pay for her trip to this State because she said it was arranged by the Mosque where she had sought help.

The applicant's interview under s. 11 of the Refugee Act 1996 (as amended) took place on the 8th August, 2006, and the interview was conducted in English. The applicant was informed by letter dated the 15th September, 2006 that she had been unsuccessful in her application.

The Commissioner's report pursuant to s. 13(1) of the Refugee Act 1996 (as amended)

The Commissioner identifies that the applicant's case is based on a stated fear of persecution in Nigeria because her parents insisted that she marry the chief oracle priest. In his conclusion the Commissioner states:-"I am of the opinion that the applicant's claim lacks credibility. Therefore the benefit of the doubt cannot be offered in her case. On consideration of the facts of the case, taken with available country of origin information and the applicant's testimony, I conclude that the applicant does not have a well founded fear of persecution in Nigeria."Accordingly he recommended that the applicant should not be declared a refugee under the legislation.

The twelve grounds upon which relief is sought are set out in the statement required to ground an application for judicial review but can be summarised under three headings as the applicant has done in the...

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