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Smith v. Minister for Justice, Equality and law Reform [2001] IEHC 192 (17th December, 2001)
JUDICIAL
REVIEW
Record
No. 609JR/2000
BETWEEN:-
TOALU
SMITH
APPLICANT
AND
THE
MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
RESPONDENT
JUDGMENT
of Mr Justice T.C. Smyth delivered the 17th day of December 2001
1. The
Applicant is a single female Nigerian National who has sought asylum in this
state, having travelled from Nigeria to Ireland via Amsterdam. She has four
children and her partner and their father has been imprisoned in Nigeria for
some six years. On arrival in Ireland in early May, 1998 the Applicant
completed a Questionnaire, in the course of which he gave as the reason for
seeking asylum, the following answer: -
“My
husband was a Transport Union Leader, he was arrested during a crises broke due
to a scarcity of fuel.
I
have try all my best in capacity for his release with the family and some
friends. I have spent all the money on my business with the responsibility and
upbringing of our four children.
I
was so shattered and miserable I cannot cope anymore the landlord have driven
us out of the house because I cannot meet up paying rent. I have to took my
four children to my ageing mother. I have to go to a friend, this is the
friend introduced an agent who helped people out of country with money this how
I managed to get out of the country. My husband still in prison, I am pleading
for the Government of Ireland to grant me asylum.”
2. The
Applicant attended for interview on 8th May, 1998 during the course of which
she (
inter
alia
)
stated that: -
(a) Nigeria
is not working. There are no human rights at all (p.4)
(b) The
authorities in Nigeria did not bother her after her “
husband’s”
arrest, that
she
could live in peace with her family.
(c) When
asked “
Have
you any fear of living there?”
She replied:
“Yes.
It is not safe for a woman living alone. The Market Association
tried
very hard to get my husband out of prison to no avail.”
3. The
question was then put in a more focused way as to what was the position
since
she had been alone, to which she made reply: -
“No
one attempted to attack me in any way. I found it difficult to bring
up
my family alone.”
4. In
or about the month of June, 1998 a Mary McCarthy of the Asylum Division of the
Respondent’s Department prepared an Assessment of the Applicant’s
claim for Refugee status. A Mr O’Mahony agreed with Ms McCarthy’s
analysis and conclusion and on 18th March 1999 recommended refusal of the
applicant. Some detailed criticism of this assessment was made during the
hearing when it was asserted that it betokens a want of appreciation of the
Applicant’s case in that it (
inter
alia
)
stated: -
“Ms
Smith is not claiming asylum because of a fear of persecution herself.”
“By
her own admission, Ms Smith has never come to the attention of the Nigerian
Authorities
nor does she fear them for any reason.”
5. In
the events the Applicant failed to obtain a favourable outcome to her
application. It was not a
“manifestly
unfounded
”
decision which supports the view that whatever perception may have been
entertained by the Applicant of the result, it was a decision given detailed
consideration. In the circumstances of that outcome the Applicant had:-
(a) A
right of appeal
(b) The
benefit of legal advise on and at the appeal.
(c) The
opportunity to consider all papers and documents which had been
generated
by her application.
(d) The
benefit of an oral hearing.
6. Accordingly
the opportunity was given to the Applicant to disabuse the Appeal Authority of
any factual errors or any misinterpretation of facts that may have taken place
or as was evidenced in writing prior to or at the hearing of the appeal.
7. The
Appeals Authority formulated a report of “Recommendation” dated 13
September 1999 which (
inter
alia
)
stated: -
(1) “At
the beginning of the appeal in this case, it was indicated that credibility
would
not be an issue between the parties. Therefore, the principle issue
would
be whether the details, as related by the Appellant, could amount to
persecution
sufficient to bring her within the terms of Article 1A(2) of the
1951
Convention
.”
(2) “It
was indicated by the Department of Justice that there was
no
subjective
basis
for the Appellants fear of persecution. The Application and the
subsequent
interview did not disclose any factual basis for alleging
persecution.
She was thrown out of her house simply because she could not
pay
the rent. There was no evidence of being in any personal danger.”
(3) “I
am unable to conclude that there is
an
objective basis
for fearing
persecution
or a real likelihood that it will occur in the Appellant is returned
to
her country of origin.”
8. The
Applicant was notified by a letter dated 4th November, 1999 that her appeal was
unsuccessful, but advised of her entitlement to make application pursuant to
Section 3 of the Immigration Act 1999 for ‘leave to remain on
humanitarian grounds’ within 15 working days. No representations were
submitted within that period but in accordance with Section 3 an assessment was
made on the material then available. A further detailed submission was made on
the Applicant’s behalf dated 2nd December, 1999 by the Refugee Legal
Service and this submission was considered and a further recommendation of 6th
December 1999 under the provisions of Section 3 of the Act 1999 was made
confirming the recommendation that a Deportation Order issue.
9. A
Deportation Order was signed on 3rd February, 2000 and Notice thereof dated
10th October 2000 was sent to the Applicant c/o The Refugee Legal Service. It
is averred in paragraph 3 of Mr Watters Affidavit that this documentation was
received on or about 17th October, 2000. The appropriate papers were lodged in
the Central Office of the High Court on the 2nd November 2000. I am satisfied
that a sufficient explanation has been tendered to the Court to permit the
application to challenge the Deportation Order and Notice as within time, but
in so far as the Applicant elected to proceed to appeal and after appeal
elected to pursue her entitlement under Section 3 of the Illegal Immigrants
Act, 1999, I am not prepared to extend the time in respect of the challenge to
either the decision at first instance or on the appeal. However, as the
application for leave was agreed to be treated as the application for judicial
review, I permitted Counsel for the Applicant to argue the case as if there
were no time bars operative either against the decision at first instance or on
the appeal, mindful of the finality of the hearing, unless any injustice might
result from any considered rigidity on the time issue which I did not rule upon
at the opening of the case but permitted the case to go through in its entirety.
10. The
submissions of the Applicant were that: -
(a) A
true analyses of the claim indicated a complete misconstruction of the
Applicant’s
case, citing in support extracts from the assessment of Ms
McCarthy
earlier referred to.
(b) The
Appeals Authority failed to attach sufficient weight (as indeed did
11. Ms
McCarthy) to the extracts from the interview quoted earlier in this
judgment.
In particular the Appeal Authority failed to appreciate the
significance
of what is recorded, vis: -
“She
indicated that the police were at liberty to do whatever they liked to
ensure
a person’s silence
.”
(c) That
the authorities at each point of decision asked all the wrong questions.
(d) The
Applicant comes within the definition of “
Refugee”
as defined by Article
1(2)
of the Convention and
Section 2 of the
Refugee Act 1996 and the
applicable
case law in support of that is set out in: -
(i) “Minister
for Immigration and Multicultural Affairs -v- Ibrahim
[2000]
H.C.A. 55 (16th November 2000)
and in particular, the
following
passage from the judgment of Gaudron, J.
“The
Convention does not require that the individual who claims to be a
refugee
should have been the victim of persecution. The Convention test is
simply
whether the individual concerned has “a well founded fear of
persecution.”
Now
does the Convention require that the individual establish
a
systematic course of conduct directed against a particular group of persons
of
which he or she is a member. On the contrary, a well founded fear of
persecution
may be based on isolated incidents where are intended to, or are
likely
to, cause fear on the part of person of a particular race, religion,
nationality,
social group or political opinion.
A
second matter should be noted with respect of the Convention
definition
of “Refugee”, namely, that, as a matter of ordinary usage, the
notion
of “persecution” is not confined to conduct authorised by the State
or,
even,
conduct condoned by the State, although, as already pointed out the
Convention
has, until recently, usually fallen for application in relation to
conduct
of that kind. Now as a matter of ordinary usage, does “persecution”
necessarily
involve conduct my members of a particular group against a less
powerful
group.
As
a matter of ordinary usage, the notion “persecution” includes
sustained
and
discriminatory conduct or a pattern of discriminatory conduct against
individuals
or a group of individuals who, as a matter of fact, are unable to
protect
themselves by resort to law or by other means. That been so, conduct
of
that kind, if it is engaged in for a Convention reason, is, in my view,
persecution
for the purposes of the Convention. That is so whether or not the
conduct
occurs in the course of a civil war, during general civil unrest or, as
here,
in a situation which it may not be possible to identify any particular
person
or group of persons responsible for the conduct said to constitute
persecution.”
(ii) Chan-v-
Minister for Immigration and Ethics Affairs
[
1989]
(169) C.L.R.
379
at p.430 per McHugh, J. in respect of which Hill, J. observed in
Mohammed
-v- Minister for Immigration and Multicultural Affairs
[1998]
83 F.C.R. 234 at 241
-
“Where
the fear of persecution is in respect of an Applicant’s membership of a
group,
acts of systematic harassment against the group will show the fear to
be
well founded. There need not be any particularly act in fact perpetrated
against
the individual.”
(iii) ‘The
criterion to establish persecution is harassment, harassment that is so
constant
and unrelenting that the victims feel deprived of all hope of recourse,
short
of flight, from government by oppression.' (The Law of Refugee Status
by
Hathaway, citing with approval the Canadian Immigration Appeal Board).
(iv) Karanakaren
-v- Secretary of State for the Home Department
[2000]
3 All
E.R.449
p. 470 per Brooke, L. J. -
“...
When assessing the future, the decision maker is entitled to place
greater
weight on one piece of information rather than another. It has to
reach
a well rounded decision as to whether, in all the circumstances, there is
a
serious possibility of persecution for a convention reason, or whether it
would
be indeed unduly harsh to return the asylum seeker to the alleged
‘safe’
part of his/her country
”.
(v) Immigration
and Naturalisation Service -v- Cardoza-Fonseca
480
U.S.
421
at 448: -
“There
is obviously some ambiguity in a term like “well founded fear”
which
can only be given concrete meaning through a process of case by case
adjudication.”
12. The
submissions of the Respondents were that: -
(a) Whatever
frailties that existed at first instance (which were not conceded)
were
capable of being remedied on appeal. The case was distinguishable in its
first
instance characteristics to
Stefan
-v- The Minister for Justice Equality
and
Law Reform and Others
(Supreme Court unreported 13th
November,
2001)
(b) The
correct questions were raised at first instance and on appeal and the
Applicant
had the benefit of knowing before appeal what the views of the
officer(s)
of the Respondent were and of having legal advise and assistance in
addressing
same and testing same by way of cross-examination at the oral
hearing
of the appeal.
(c) That
the correct test was applied and most particularly at the appeal.
(d) That
the case advanced in Court was not that advanced either at first instance
or
on appeal and in so far as it formed part of the
Section 3 application, it was
clearly
considered on 6th December 1999 before any Deportation Order was
signed.
Both considerations under Article 1A and 33 of the Convention were
considered.
(e) Even
if the Court were of a view other than that taken at first instance, on
appeal
or under
Section 3 of
the Act of 1999, the decisions pass the rationality
test
and the decision in
Camara
-v- The Minister for Justice Equality and
Law
Reform
and Ors
(unreported
26th July, 2000 - Kelly J.).
Decision:
-
“I
am satisfied and find as a matter of fact and in law that
(a) The
evidence sustains and is consistent with the submissions of the
Respondent.
The Courts function is that of review, it is not a court of appeal.
(b) The
principles in the case law cited were not disputed.
(c) The
correct questions were asked.
(d) The
correct tests were applied.
(e) There
was evidence upon which the impugned decisions could be founded.
(f) There
was no irrationality in the decisions made.
The
Applicants case advocated ably and concisely in Court was not that appearing
upon the papers, even it had been, the evidence as disclosed in the papers does
not support the conclusions sought to be deduced. Accordingly the application
stands dismissed.
[As
a footnote to this determination I observe that the veracity and merits of an
Applicant even within the limits of the elements of discretion in judicial
review matters is not enhanced by such matters as the averment in paragraph
(23) of the grounding Affidavit that “
The
Applicant is not a citizen of Nigeria
”
when throughout the entire Asylum/Refugee/
13. Immigration
Process, the basic fact was that she was such a citizen: nor is it of
assistance that one of the Applicant’s daughters came to Ireland ten
months after the Deportation Order was served and that fact used to move the
Court for an adjournment until the application of the daughter for Refugee
Status was considered and in that context praying in aid the special position
accorded to “The Family” in the Constitution. These were
irrelevant considerations in my judgment. I consider it maybe of assistance
nonetheless in like cases to signal that the Court will adhere, as it must to
the observations made by the Supreme Court in
P.B.N.L
-v- the Minister for Justice Equality and Law Reform and Ors
(unreported
30th July, 2001) concerning the requirement to consider the application before
the Court and that the rights and entitlement of the Respondents are not to be
delimited because some other application awaits determination. The discretion
of the High Court must have regard to the rights, interest and entitlements of
both parties, the law and the Constitution.
© 2001 Irish High Court
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