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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Eyefia -v- Minister for Justice & Ors [2014] IEHC 516 (04 November 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H516.html Cite as: [2014] IEHC 516 |
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Judgment Title: Eyefia -v- Minister for Justice & Ors Neutral Citation: [2014] IEHC 516 High Court Record Number: 2011 117 JR Date of Delivery: 04/11/2014 Court: High Court Composition of Court: Judgment by: Noonan J. Status of Judgment: Unapproved |
Neutral Citation: [2014] IEHC 516 THE HIGH COURT JUDICIAL REVIEW [2011 No. 117 J.R.] BETWEEN HELEN EYEFIA APPLICANT AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENT JUDGMENT of Mr. Justice Noonan delivered the 4th day of November 2014 Introduction Facts
Applicant stated she lived in a bus shelter in the market square in Benin city with her mother and family. Applicant stated she was brought to Italy from Nigeria and was forced to be a prostitute. A white man in Italy organised for her to come to Ireland.”
I leave my country Nigeria because of fears of people, so that they will not kill me. I also leave Italy to Ireland because of fears of a woman who take me to Italy for prostitute.”
6. On the 23rd September 2006, the applicant attended for an interview with an officer of the Refugee Applications Commissioner pursuant to Section 11 of the Act of 1996. During the course of the interview, the applicant again said that she lived at a bus stop in Market Square, Benin City for about three years. She lived there with her mother and four siblings whose ages she could not remember. She said that a woman in her hostel called Mary completed the questionnaire but she did not know Mary's nationality. She could not say what addresses in Nigeria she had lived at with the exception of the bus stop. When advised that she was not being co-operative, she came up with an address, Webo Lane, where she lived for about twelve years. They left there because they could not pay the rent. She then said that she left Webo Lane when she was about twelve years of age. When it was put to her that she was about fifteen, sixteen or seventeen at that stage and where did she go to live, she said she met a boy that she had children with after she left Market Square and his address was 188 Iyarema Street. She had three children with him. In 2005, her boyfriend asked her to leave because his friends were saying that her mother was destitute, a street woman and he did not wish to take care of the applicant and her junior siblings any more. 7. She said that three siblings were living with her and her boyfriend and three children but again she could not remember, even approximately, the siblings’ ages. She did not know where the siblings went after they left her boyfriend's house, although one was only seven at the time. After she left her boyfriend, she went to work in a restaurant washing dishes. She met a woman who asked her if she would like a better-paid job. The applicant said she didn't mind, was interested and followed her. This woman brought her far away from Benin. She was brought to a house where there were men, one of whom asked if she was looking for a job. The man took out a gun and told her he would kill her. He put her in a room where there were two dead men. He asked her what her name was and she said “fire”. He asked her to pick up a native pot used in rituals then scraped her hair and covered her head, face and body with a native chalk. 8. The man started to do a ritual and when it did not work he thought it must be because she had not given her correct name. She said that later on she managed to escape through a window. She ran into the bush and heard people following her so she hid behind a tree. She then met an elderly woman whom she asked for help. She met other people in a compound and told her story. The old woman took care of her and introduced the applicant to her daughter who said she would help her. The daughter took the applicant to her home and bought her clothes in the market. They then went to Lagos and stayed in a hotel for two days. They then went to an airport and travelled to Italy. She was brought to a house where there were other girls and was forced to be a prostitute. She was brought to a house in Naples where men were brought to her. She was not allowed to leave the house. 9. The woman poured water on the applicant and she ran out of the house and met a white man who, after a week, brought her to Ireland. When she arrived in Ireland with this white man, he gave her €30 and left her. He said he could not help her any more and did not tell her where to go. She was unable to say where the old woman lived or where her daughter lived. When asked why she thought the white man helped her, she said he felt sorry for her. She did not know if he was visiting Ireland and he paid for her journey. She confirmed that she had no documents and that the man had everything. 10. She was asked to explain why she stated in the questionnaire that her last address was the bus stop in Market Square when she told the interviewer that it was in fact her boyfriend's address. She reiterated that it was her boyfriend’s house and not the bus shelter. 11. The Commissioner’s officer delivered her report on the 25th September 2006 in which she stated that she was satisfied that the applicant had failed to establish a well founded fear of persecution in accordance with Section 2 of the Act of 1996 and recommended that the applicant should not be declared a refugee. The application appears to have failed primarily because of credibility issues surrounding her account. The applicant appealed to the Refugee Appeals Tribunal (“RAT”). 12. It appears from the replying affidavit of the respondent herein that before the appeal came on for hearing, on the 7th November 2006, the applicant instituted judicial review proceedings in respect of the Commissioner’s decision. The application for leave was refused by Birmingham J. on the 11th July 2008 and an order for costs was made in favour of the respondent. Those proceedings have not been exhibited in either party's affidavit so that the nature of the claim being made at that time is not known, nor the reasons for the court’s refusal to grant leave. 13. On the 27th November 2008, the applicant’s appeal to the RAT was heard on oral evidence and the applicant was represented by solicitors and counsel. On the 17th August 2009, the RAT affirmed the Commissioner’s recommendation that the applicant should not be declared a refugee. The tribunal found that the applicant’s account was neither credible nor plausible and gave clearly understandable reasons for so finding. The tribunal said:
15. By letter of the 2nd November 2009, the applicant’s solicitors made an application for subsidiary protection pursuant to the European Communities (Eligibility for Protection) Regulations 2006 together with an application for leave to remain pursuant to Section 3 of the Immigration Act 1999 as amended. The documents enclosed with the letter included extensive country of origin information. 16. They also enclosed a completed subsidiary protection application form. Paragraph 1.8 of the form requested the applicant to “Set out fully all of the grounds relating specifically to your circumstances upon which you are relying in support [of] your application for Subsidiary Protection in the State”. The applicant's response was:
19. The respondent’s executive officer issued a recommendation on the 6th October 2010 that the applicant had not shown substantial grounds for believing that she would face a real risk of suffering serious harm if returned to Nigeria. On the 10th December 2012, the respondent’s higher executive officer recommended that the applicant be refused subsidiary protection and on the 22nd December 2010, the respondent’s assistant principal determined that the applicant was not eligible for subsidiary protection. 20. On the 13th January 2011, the respondent issued a deportation order in respect of the applicant on foot of an examination of the file under Section 3 of the Act of 1999 which was carried out by the same executive officer on the 5th October 2010. The Proceedings 22. The applicant further says that the respondent failed to consider the threat to the applicant in the context of the lack of police protection and non-availability of internal relocation in Nigeria, again related to the COI information and in the same vein, that no reasonable decision maker could have arrived at the conclusions that the respondent did having regard to such information. The applicant further complained in her submissions that the respondent gave no or no adequate reasons for discounting the applicant’s COI information. 23. On the 19th May 2014, the applicant applied to the court to amend her grounds to include new claims based on recent decisions of the High Court and European Court of Justice and in particular of Hogan J. in MM v. MJELR & Ors [2013] IEHC 9 along the lines that the applicant was entitled to an oral hearing of her application for subsidiary protection separate and distinct from that in her asylum application and that the findings in the latter could not be carried through to the former. This application was refused and an order for costs was made against the applicant. There was no appeal. 24. Counsel for the applicant, Mr. O’Shea BL nonetheless urged on me that I should consider a submission based on these grounds having regard to the supremacy of European law over national law. I am satisfied that to do so would amount to an impermissible reversal of the order of the court previously made herein and would render largely meaningless the purpose of the pleadings in judicial review applications. Indeed, counsel for the respondent, Ms. Carroll BL complained, justifiably in my view, that she was taken by surprise by this submission in circumstances where this is precisely the situation that the rules exist to preclude. 25. Mr O’Shea also submitted that I should have regard to argument based on Article 8 of the European Convention on Human Rights, despite the fact that none of the applicant’s grounds makes any reference to it. For the same reasons, I decline to do so. 26. The respondent, in his statement of opposition, opposed the application on the grounds that he was able to conclude on the material available to him that the applicant failed to show that she would face a real risk of serious harm in Nigeria. The material indicated that it was open to the applicant to make a complaint to the police in Nigeria and avail of protection although she had never sought to do so. The respondent further pleaded that he was entitled to rely on the decision of the RAT which was neither challenged nor corrected in the written representations made on behalf of the applicant. 27. The applicant submitted that the respondent did not properly consider the COI submitted by the applicant and was obliged to give reasons as to why he rejected it. In oral submissions, the applicant went further and complained that the respondent relied on COI which post dated the application and had not been furnished to the applicant to enable her to deal with it. It was submitted that the respondent simply recited the Nigerian constitution without any consideration of whether it was applied in practice contrary to regulation 5.1 (a) of the 2006 regulations. It was said that the same flaws applied to the respondent’s consideration of the availability of state protection and internal location. The Law
55. The procedure argued for presupposes a complete lack of trust being properly exercised by the respondent Minister through his officials. The relevant directives, and the case law that I have cited in this judgment, emphasise the necessity for the decision maker to obtain up to date country of origin information. That process may be assisted by submissions on behalf of the applicant. Neither under European or national law do they control the process. Once a submission is made, it is not necessary either under European or national law, to return to an applicant with queries or questions unless, in the opinion of the Minister, such query or question may be of assistance to him in discharging his function in determining the true state of the applicant's country of origin. 56. It was further argued on behalf of the applicants that a failure to engage in this seven stage process contended for, would leave an applicant for judicial review without a reasoned decision and in circumstances where the Minister may reasonably decide an application on the basis of one piece of country of origin information, or several reports, in contra-distinction to another. In my view, the Minister is under a duty to act carefully and honestly in considering an applicant's entitlement to subsidiary protection. An applicant will, no doubt, make the best possible case that is available on the basis of country of origin information. That case may assist the Minister, it may be real in terms of what it puts forward, or it may be exaggerated. Any submission may be checked against what the Minister already has available to him and supplemented by any reliable additional reports. The receipt of submissions may assist in the process, but does not relieve the Minister of his responsibility to make a decision. 57. The reality of the multiplicity of written decisions on judicial review on refugee matters emanating from the High Court displays strong evidence for the proposition that judges, in considering the actions of the statutory bodies under the Refugee Act 1996, exercise a heightened level of scrutiny when compared to other forms of judicial review that concerns administrative decision makers. I do not think that it would be fair to the principle of the primary importance of human rights merely to apply in judicial review applications of a determination by the Minister a test as to whether his determination as to the situation in the country of origin of the applicant, and as to whether protection was reasonably available within that territory, by asking whether that decision flew in the face of fundamental reason and common sense; the ordinary test for overturning decisions of fact in judicial review of administrative or quasi-judicial tribunals. Rather, it seems to me, that a decision on the country of origin of an applicant and the availability of protection within its territory should be scrutinised if a judicial review is taken and the decision should only stand if it be a rational one that is fairly supported by the country of origin information. That, it seems to me, is what Council directive 2005/85/EC, the procedures Directive, is seeking to achieve when placing on the examining bodies and member states the responsibility in making objective and impartial decisions based on precise and up-to-date information from reliable sources.”
"In Baby O. v. Minister for Justice Equality and Law Reform [2002] 2 I.R.169 the Supreme Court again had to consider the statutory regime in respect of deportation orders. While many of the issues which were relevant in that case do not arise here, the court did consider grounds raised by the applicant in Baby O based upon s. 5 of the 1996 Act. The decision of the Minister in that case (in so far as it was concerned with s. 5) was the same as in this case i.e. ‘the Minister has satisfied himself that the provisions of s.5 (Prohibition of Refoulement) of the Refugee Act 1996 are complied with in your case'. In respect of that decision of the Minister, Keane C.J. said the following: --
"4.7 The narrow view as to the scope of review available in respect of a decision by the Minister to make a deportation order subsequent to a failed asylum application, recognises that the decision-making process carried out by the Minister is not an inquisitorial process. An inquisitorial body has obligations in relation to fair procedures and a requirement to bring to the attention of the party, whose rights may be affected, matters of substance and importance which the inquisitorial body may regard as having the potential to affect its judgment. However, the Minister is not carrying an inquisitorial process. In this case his decision does take place subsequent to a failed asylum application. The claim that there was reliance on undisclosed materials in breach of fair procedures does not arise herein. The requirement to disclose relevant documentation to asylum seekers and their legal representatives extends to bodies such as the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal but does not extend to the exercise of the ministerial discretion. There is no requirement for the Minister to enter into correspondence based on country of origin information and this is clear from the judgment of Keane CJ in the Baby O case (see page 183). The court is satisfied that there was no obligation on the Minister either in a general way or in any way to identify any reasons giving rise to his decision to deport. The claim that the Minister had such obligation is rejected."
70. The procedures involved in considering subsidiary protection entitle an applicant to make representations to the Minister. The primary question in considering those representations should be whether what is contended for is new, or has already been, in substance, the subject of a determination by the Refugee Applications Commissioner or, on appeal, the Refugee Appeals Tribunal.”
Analysis of the Issues 37. In my view the respondent had no obligation to furnish to the applicant the COI upon which he relied, to invite submissions thereon or to give detailed reasons as to why he did not accept every item of COI submitted by the applicant. His duty was to have regard to and fairly consider up-to-date COI from sources he considered to be reliable. In that regard, there was no suggestion by the applicant that those sources considered by the respondent were unsatisfactory in any way. The applicant did not suggest that the respondent did not fairly consider any relevant COI but rather that he appears to have rejected the applicant's COI without giving reasons for doing so. I am of the view that the respondent’s conclusions are fairly supported by the COI upon which he relied and it could not in any sense be said that those conclusions were irrational. 38. The applicant criticised the manner in which the respondent dealt with the issue of torture or inhuman or degrading treatment or punishment and argued that the respondent did no more than set out one article of the Nigerian constitution without any consideration of how that provision was applied, contrary to the 2006 regulations. This conclusion was to be drawn from the fact that following the citation of the Constitution, the respondent went on to deal with the issue of trafficking and considered a Danish immigration service document on that subject. However, it is clear that the respondent subsequently considered a significant body of documentation dealing with torture and inhuman or degrading treatment before concluding:
40. The applicant also sought to rely on Barua in a different context, namely as support for the proposition that the respondent was not entitled to rely on the findings of the RAT in relation to the applicant's claim. For the reasons already given, this submission is clearly outside the applicant’s grounds and is rejected. |
