A. v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 04 June 2015
• Neutral Citation: [2015] IEHC 346
• Court: High Court
• Date: 04 June 2015

[2015] IEHC 346

THE HIGH COURT

[No.390 J.R./2011]

A. v Refugee Appeals Tribunal & Ors.

JUDICIAL REVIEW

BETWEEN

A. (SUING BY HER MOTHER AND NEXT FRIEND F.A) (NIGERIA/SIERRA LEONE)

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE AND EQUALITY,

ATTORNEY GENERAL AND IRELAND

RESPONDENTS

Asylum – Immigration & Nationality – Refugee Appeals Tribunal – Refusal of asylum claim – Fear of persecution – Internal relocation

Facts: The applicant's mother on behalf of the applicant sought an order of certiorari quashing the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner and an order remitting the appeal for determination de novo by a different member of the first named respondent. The applicant's mother contended that there was a real risk of persecution of the applicant in the country of origin as the applicant's mother was involved in forced prostitution there and that the applicant could be dragged into that. The applicant's mother contended that her internal relocation would be impractical as she would be recognizable as widely known for being involved in trafficking.

Mr. Justice Eagar refused to grant an order of certiorari quashing the decision of the first named respondent. The Court held that the minor applicant had been afforded fair procedures of law and no reasonable fear of the applicant would arise in the case. The Court held that there were ample evidence available suggesting the restitution of victims of trafficking in various places in the country of origin and as such internal relocation of the applicant's mother could not be negated.

1 1. This is a telescoped application for an order of certiorari quashing the decision of the first named Respondent to affirm the recommendation of the Refugee Applications Commissioner and an order remitting the appeal of the Applicant for determination de novo by a separate member of the Refugee Appeals Tribunal.

2 2. The notice of motion sought an order of certiorari by way of an application for judicial review quashing the decision of the first named Respondent to affirm the recommendation of the Refugee Applications Commissioner and an order remitting the appeal of the Applicant for a determination de novo by a separate member of the Refugee Appeals Tribunal and a number of ancillary reliefs relating to an injunction and an extension of time.

3 3. The grounds upon which reliefs were sought were as follows:

1 ) The Tribunal failed to perform its function of assessment of the facts in accordance with the Refugee Act 1996 (as amended) (hereinafter referred to as "the Act of 1996") or the UNHCR Handbook and/or S.I. 518 of 2006, Council Directive 2004/83/EC and Council Directive 2005/85/EC.

2 ) That the decision of the Tribunal was wholly lacking in cogency and the claim of the Applicant was prejudiced.

3 ) That the Tribunal failed to make any clear findings on significant elements of the evidence and including the evidence of past persecution.

4 ) That the Tribunal erred in law in failing to reasonably consider the country of origin information reports and the submissions contained in the notice of appeal.

5 ) The Tribunal erred in law in making a finding in respect of internal relocation without making any assessment or without any regard to the UNHCR guidelines on internal relocation.

6 ) The Tribunal erred in law in taking into account matters irrelevant to its determination and/or fails to take into account relevant considerations.

7 ) The Tribunal erred in law in failing to lawfully speculate on the likelihood of exposure of the Applicant to persecutory risk on refoulement to Nigeria

8 ) The Tribunal failed to discharge its duties in arriving at a decision in respect to the principle of non refoulement.

9 ) Having determined that it would also decide upon the appeal of the Applicant as if she is a national of Sierra Leone, the Tribunal identified a litany of risks to which a person of the Applicant's age and gender would be exposed but thereafter failed to consider or otherwise speculate as to whether the Applicant is in fact exposed to persecution in Sierra Leone.

10 ) Having bound itself to making a decision with regard to the best interests of the child no such regard is apparent.

4 4. The notice of motion was grounded on the affidavit of F. A, the mother of the Applicant. The Applicant's mother said she was born in Sierra Leone in 1985 and lived in Nigeria since the age of 2. Her twin sisters and her were forced by their aunt into sex slavery at the age of 10. When her sister fled from a man to whom she was sold she was rendered mute and deaf by their aunt and thereafter killed. She sought help on occasion from the police but was then raped by the police. She stated she was eventually sold and trafficked to Ireland and she applied for asylum in Dublin but her application was refused as it was determined she could avail of State protection in her country of origin.

5 5. The Applicant was born in Ireland on the 17 ^th February 2009. Her father is a national of Nigeria. An application was submitted on behalf of her daughter on the 23 ^rd October 2009. The ASY1 form was completed by the Applicant's mother on the 23 ^rd October 2009 and an application for refugee status questionnaire was completed on the 3 ^rd November 2009.

6 6. The Applicant's mother was interviewed on behalf of the Applicant under section 11 of the Act of 1996 on the 6 ^th November 2009 and a report pursuant to s. 13 (1) of the Refugee Act 1996 (as amended) dated the 11 ^th November 2009 indicated that the Refugee Applications Commissioner was satisfied that the Applicant's mother did not establish a well-founded fear of persecution as required by section 2 of the Act of 1996. An appeal was lodged against that decision and the first named Respondent heard an appeal on the 28 ^th April 2009 and on the 27 ^th May 2009 affirmed the recommendation of the Refugee Applications Commissioner.

7 7. In relation to the minor Applicant, A, the Applicant's mother attended the section 11 interview on behalf of her daughter and in the report of the Refugee Applications Commissioner the issue of state protection was considered by the Refugee Applications Commissioner but it recommended that the Applicant had not established a well-founded fear of persecution. The appeal of the minor Applicant was heard on the 16 ^th March 2011 by way of an oral hearing and the decision of the first named Respondent was made on the 6 ^th April 2011 and affirmed the recommendation of the Refugee Applications Commissioner.

8 8. No application was made by the minor Applicant to have her appeal heard by a separate member of the Refugee Appeals Tribunal.

9 9. These proceedings were commenced on the 13 ^th May 2011. The statement of opposition of the Respondents did not raise any issues as to the necessary extension of time and in those circumstances the Court formally grants an extension of time in respect of this application.

Decision of the first named Respondent

10 10. The first named Respondent outlined the Applicant's claim. The Applicant was born on the 17 ^th February 2009 in Ireland. She is the daughter of Nigerian parents and thus of Nigerian nationality. The Applicant is a Christian and owing to her age she has to date no education. Her mother is F.A. who answered in the Applicant's questionnaire that she had feared persecution of her daughter because she is at risk from people who are after her own (F.A's) life. In relation to the fear of being reported to the authorities she claims she reported her case to the Department of Justice in Dublin. In the circumstances of this case it is impossible to separate the claim of the minor Applicant from that of her mother.

11 11. The first named Respondent then recited the details of the Applicant's mother's history. The Applicant's mother attended for a section 11 interview on the 6 ^th November 2009. She confirmed that her nationality is that of a person from Sierra Leone, however, her father's nationality is Nigerian. The Applicant's mother was taken to Nigeria when she was two years of age. She stated that if she went to Nigeria her aunt would kill her and if they killed her the same would happen to the Applicant in this case. She claims that perhaps her daughter will end up in the same position she did, namely being involved in prostitution. The Applicant's mother stated this in the section 11 interview. The Applicant's mother stated that she fears...