SE (A Minor) v Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2014] IEHC 240
Nature of Proceedings:Judicial Review
Judgment Date/s:02 May 2014
Judge:McDermott J.
Category:Refugee Law
Keywords:Asylum, Asylum application (Examination of an), Child, Country of Origin Information, Minor, Persecution, Refugee, Refugee (Convention), Refugee Law, Refugee Status
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/a127cf1c-db69-477c-b5ca-da2600af9f62/2014_IEHC_240_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicant was a minor and a national of Nigeria. His mother claimed asylum on his behalf. She said that she was a member of the Osu caste and that her husband was a member of the Igbo tribe. She claimed that the Osu were viewed as outcasts and that her husband’s family might try to kill the applicant were he to return to Nigeria.

Having investigated the claim, the Refugee Applications Commissioner recommended that the applicant not be declared a refugee, and his mother appealed unsuccessfully to the Refugee Appeals Tribunal on his behalf, whose decision she impugned in these proceedings.

The Tribunal was of the view that the applicant would not be persecuted generally for being an Osu in Nigeria. It based that on his mother’s testimony and country of origin information, which indicated that the Osu were no longer openly and verbally attacked, but might suffer discrimination in marriage and in respect of “leadership issues”. Though there had been severe discrimination in the past by the Igbo against the Osu, it had weakened over a period of 50 years, and the main problem encountered by the Osu arose if they attempted to marry outside their group. The discrimination encountered was not deemed to be serious enough to amount to persecution. The caste system had been outlawed. The Tribunal noted that the applicant’s mother had received third-level education in Nigeria and before meeting her husband, had lived alone in Lagos, where she had worked as a teacher and a secretary. Her brothers were also able to work in business in Nigeria and her aunt was attending school.

The Tribunal also noted that the applicant’s claim was based to a large degree on his mother’s earlier application for asylum and that, as her application had been refused, it was entitled to apply that decision to the applicant’s case insofar as it based upon the same grounds.

The Tribunal considered that the applicant could relocate in Nigeria. Country of origin information indicated that discrimination against the Osu or the caste system was largely confined to the Igbo tribe in south-eastern and south-central Nigeria. It concluded that were the applicant and his mother to live elsewhere in Nigeria, they would not be subjected to this. It pointed to the fact that the applicant’s mother was able to attend college in Anambra State without difficulty, and that people from all parts of Nigeria attended that college. Nobody at the college knew she was Osu and she had confirmed at interview that, if the applicant were to live elsewhere in Nigeria, no one would know that he was Osu. The Tribunal also noted that other members of his mother’s family were able to integrate in different areas of Nigeria.

The Tribunal therefore concluded that, given that Nigeria had a population of over 120 million and that the applicant’s mother’ had previously been able to live alone in Lagos and work there before meeting the applicant’s father, it was open to her to relocate to a large urban centre such as Abuja/Port Harcourt outside the Igbo areas to escape the attention of her in-laws.

The applicant challenged the Tribunal’s decision on a number of grounds, which were rejected by the court.

Reasoning:
First, it was contended that the finding by the Tribunal that the Osu were not persecuted was based on selective appraisal of the evidence. The court rejected this ground, observing that the country of origin information and other materials considered by the Tribunal indicated that the Osu caste system existed largely in Igbo areas and was a regional phenomenon. It therefore concluded that the Tribunal’s assessment of the evidence was not selective, unreasonable or irrational.

Secondly, it was argued that the Tribunal had failed to assess the alleged persecutory risk to which the applicant might be exposed on account of his mother’s mental health. The court rejected this too. It noted that the Tribunal had considered the medical and psychiatric history of the applicant’s mother on the basis of the oral evidence presented and several medical reports submitted to it. It had also considered country of origin information concerning the treatment which would be available to her in Nigeria. There had not been any suggestion in it that she would be discriminated against in the provision of mental health care on the basis of her Osu status or for any other reason. Family support would also be available to her.

Thirdly, it was submitted that the Tribunal had failed to consider the evidence of past persecution and had made no assessment of the applicant’s alleged fear of persecution at the hands of his father’s family. The court held that that was clearly incorrect, that that issue had been at the core of the Tribunal’s determination and fully considered by it.

The court also found that a number of grounds of challenge had no connection to the facts of the case and were too general in nature to be stateable. One of the grounds, ground (3), contended that the Tribunal had failed properly to assess the facts in accordance with the Refugee Act 1996, the UNHCR Handbook and/or the EC (Eligibility for Protection) Regulations 2006. Grounds (4) and (5) alleged that the Tribunal had been incapable of objective fairness and had taken into account irrelevant matters or failed to take into account relevant matters. Ground (7) alleged that the decision was unreasonable and irrational and flew in the face of common sense. It was also argued that the Tribunal had failed to make any assessment of the provisions of the United Nations Convention on the Rights of the Child. Whilst the court concluded that that was incorrect, in that the Tribunal had set out in detail the relevant principles applicable under the Convention and under the UNHCR Guidelines in respect of minors, pursuant to which it considered the case, it noted that it was not clear what complaint had been made about the application of those principles in the Tribunal’s decision, in that the generalised grievance had not been particularised in the ground or in written and oral submissions, or connected meaningfully to the facts of the case.

Finally, the court noted that the applicant had attempted to rely in his written legal submissions on three further matters which had not been included in the statement of grounds. The court held that it could not embark upon consideration or grounds which had not been advanced as part of the case, noting that no application had been made to amend the grounds. The court concluded that they were not substantial in any event.

Decision:
Accordingly, the court refused leave to seek judicial review and upheld the Tribunal’s decision.

Principles:

Findings made about the treatment of a group to which an asylum applicant claims to belong in his or her country of origin, and which is based on reliable country of origin information, will not be unreasonable.

A court will not permit an applicant to obtain leave or relief on grounds of challenge which are too general in nature to be stateable and which have not been particularised in the statement of grounds or in written submissions, or connected meaningfully to the facts of the case.

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