OJU (a minor) v Refugee Applications Commissioner and Another

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Respondent/Defendant:Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2015] IEHC 412
Nature of Proceedings:Judicial Review
Judgment Date/s:06 Jul 2015
Judge:MacEochaidh J.
Category:Refugee Law
Keywords:Minor, Refugee
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/ef8fe2cf-1eac-4638-ab5d-25eff6a6c9a8/2015_IEHC_412_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicant was born in Ireland in July 2008. Her mother applied for asylum on her behalf in February 2010. At an earlier stage, her mother had sought asylum based on a fear that village elders in her native Edo State, Nigeria, would force her to subject her older daughter to female genital mutilation. She was refused refugee status in 2006 on the bases of the availability of state protection and the possibility of internal relocation.

Having investigated her application, the Refugee Applications Commissioner made a negative recommendation on it, which she challenged in these proceedings. She contended that the Commissioner erred in law and in fact, and acted in breach of fair procedures by failing to assess all relevant facts as they related to the country of origin at the time the decision was being made. The Commissioner relied on the decision of Clark J in C.I. & A.F. v. R.A.T. [2013] IEHC 488 and the presumption referred to therein that a state can and does protect its citizens from acts of persecution by non-state actors, and that cogent evidence was required to displace this presumption.

The court upheld the Commissioner’s decision.

Reasoning:
It considered that the decision with regard to state protection was somewhat sparse. Ideally, there should either be reference to some source which confirmed the existence of a functioning police force or other form of protection, or to the presumption that functioning states protect their citizens. However, the Commissioner’s conclusion that there were viable and valid options open to the applicant (through her guardian mother) to access protection should she return to Nigeria did not fall into legal error, having been preceded by a reference to reg. 2 of the EC (Eligibility for Protection Regulations) 2006.

The court stated that it was insufficient for an applicant in judicial review to say that the requirements of reg. 5(1)(a) of the Regulations of 2006 was breached because there had not been any assessment of relevant facts as they related to the country of origin at the time the decision was made. Significantly detailed complaints as to what facts were not considered, as well as submissions as to the effect of the alleged omission, would be required to ground such a complaint. While the decision on state protection lacked detail, it did not lack jurisdiction.

The court considered that the refusal of refugee status was not based on the absence of subjective or objective elements of the fear of persecution, but rather on the availability of state protection and/or internal relocation as a response. Thus, the applicant’s second allegation regarding the failure to consider personal circumstances was also rejected. The court held that there was no such failure, but that if there had been, it had no impact on the decision since the Commissioner accepted that the ill-treatment feared was persecutory in nature.

The court rejected the applicant’s contention that the claim and, in particular, the country of origin information, had not been not assessed objectively. It held that such a claim could not succeed without much greater detail either in the pleadings or the written or oral submissions. No explanation had been offered as to what country of origin information ought to have been considered which, had it been consulted, might have resulted in a different outcome.

The court held that, while the analysis as to internal relocation was not rich in detail, the complaint had to be supported by reference to the personal circumstances which, had they been considered, would have led to a different decision. Similarly, with regard to the charge that the reasonableness of asking persons to relocate was not considered, an applicant had to show how it would be unreasonable to expect the applicant internally to relocate. The court also rejected that the burden of proof had been placed on the applicant.

Decision:
The court therefore refused the application for judicial review.

Principles:

Ideally, when a protection decision-maker is finding that state protection is available to an applicant, it should either refer to some source which confirms the existence of a functioning police force or other form of protection, or to the presumption that functioning states protect their citizens. It may, however, suffice if its conclusion is preceded by a reference to the definition of protection in reg. 2 of the EC (Eligibility for Protection) Regulations 2006 (or subsequent similar legislation, such as the EU (Subsidiary Protection) Regulations 2013).

It is insufficient for an applicant challenging a protection decision in judicial review proceedings to say that the requirements of reg. 5(1)(a) of the Regulations of 2006 (or cognate provisions of other legislation) have been breached because there has not been any assessment of relevant facts as they related to the country of origin at the time the decision was made. Significantly detailed complaints as to what facts were not considered, as well as submissions as to the effect of the alleged omission, would be required to ground such a complaint. Similar considerations apply if it is asserted baldly that evidence should as country of origin information has not been considered, or that there has been a failure to consider an applicant’s personal circumstances when making a finding that internal relocation would be available to him.

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