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Judgment Title: O. & Ors -v- MJELR

Neutral Citation: [2008] IEHC 405


High Court Record Number: 2008 344 JR

Date of Delivery: 28 November 2008

Court: High Court


Composition of Court:

Judgment by: McCarthy J.

Status of Judgment: Approved




Neutral Citation Number: [2008] IEHC 405

THE HIGH COURT

JUDICIAL REVIEW

2008 344 JR

IN THE MATTER OF

THE IMMIGRATION ACT 1999

AND THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

AND

THE EUROPEAN CONVENTION ON HUMAN RIGHTS





BETWEEN

H.O., E.O. (A MINOR)

AND

C.A.O. (A MINOR) BOTH SUING BY THEIR MOTHER AND

NEXT FRIEND H.O.

APPLICANTS
AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

JUDGMENT delivered by Mr. Justice McCarthy on the 28th day of November, 2008


1. This application for leave to seek judicial review was commenced by originating notice of motion on 28th March, 2008, and comes before me for leave to seek inter alia an order of certiorari quashing a decision of the respondent in respect of the first and second named applicants to make deportation orders against them, (which latter are dated the 5th March, 2008). There is a Statement Grounding an Application for Judicial Review of the same date and affidavits have been sworn by the first named applicant and Laurena Gradwel, on behalf of the Minister. I propose to set out briefly the history of the matter.


2. According to the records of the Office the Refugee Applications Commissioner, H. and her son E. arrived in the jurisdiction on 8th May, 2005, and she claimed declarations in accordance with s. 17 of the Refugee Act 1996, (as amended) for herself and on behalf of her son E. Her daughter, C., was born in the State on 16th June, 2006. In due course, H. completed a questionnaire for the purpose of the applications for the benefit of the Commissioner, and subsequently was interviewed on his behalf. She was interviewed by James Walsh on behalf of the Commissioner on 18th August, 2006, and a recommendation was made on behalf of the Commissioner to the Minister to refuse the declarations, on 23rd August, 2006. A notice of appeal was entered to that refusal, dated 13th September, 2006 (over H.’s signature) and 15th September, 2006, (over her solicitor’s signature).


3. Comprehensive submissions on behalf of the applicants (as they are described) were made to the Tribunal by Messrs James Waters, Solicitors, on 19th September, 2006, and these submissions referred to, and under cover thereof, were furnished to the Tribunal, two documents comprising “Country of Origin Information”, namely, what appears to be a hard copy of an article available on the internet and published by “Christianity Today International” as well as a document published by the “Immigration and Refugee Board of Canada”. The former seems to be dated December, 2004 and the latter 22nd July, 2005. For whatever reason, they were not furnished to the Commissioner prior to his decision. In any event, the Notice of Appeal expresses the grounds for seeking refugee status to be “religion” and it appears that H. says that she fled Nigeria for the purpose of escaping from her husband’s family, in circumstances where they wished to make a human sacrifice of E. and her then unborn child (C. as she was named). She, of course, contends that she and the children to whom I have made reference will be subjected to persecution (as that is understood in the present context) should they return and, of course, in particular that her children may be killed.


4. The document published by Christianity Today is entitled “Human Sacrifice Redux” and refers to a police raid in Anambra State (in largely Christian southern Nigeria) due to persistent reports of human sacrifice, in the course of which skulls and fresh corpses were found. It refers to the fact that a “minority” of adherents of traditional African religion engage in ritual killings and apparently children are killed (in South Africa) for body parts. The report further refers to the fact that the body of a boy (apparently of a West African victim) was found floating in the Thames in 2002, and it was conceived that the sacrifice may have been to certain ancestral gods of the Yoruba, Nigeria’s second largest tribe. Details are afforded of persecution and fear on the part of Christians and a Pastor was quoted, as to the number of people sacrificed, to the effect that “it will be like asking me to count the grains of sand on the seashore”.


5. I do not know the provenance of the group which produces this document but, in any event, that published by the Immigration and Refugee Board of Canada is from an institution of high standing. The edition in question pertains to the “Prevalence of Ritual Murder and Human Sacrifice and Reaction by Government Authorities (March 2000/July 2005)”.


6. Criticism has been made of the report made to the Minister for the purpose of allowing him to make a decision as to whether or not deportation orders should be made on the basis that it consists in substantial part in quotations, and extracts from various country of origin reports without overt analysis of a sufficiently detailed kind, (something to which I will refer again below). I do not propose to quote extensively from any of the country of origin reports in the papers before me, but seek merely to give some limited flavour thereof, so far as the relevant ground of alleged fear of persecution is concerned. The Canadian report makes a distinction between ritual murder and human sacrifice the former being a particular class of homicide defined by law and, apparently, involving the participation of a community in a formalised manner, the later being individual acts performed after consultation with, say, a witch doctor and designed to call the favour of the gods on the individual. Reference is made therein to newspaper reports (in the context of the body found in the Thames), and to a named pathologist who, apparently, said that, “human sacrifices are performed for a small group of people seeking supernatural powers”. The report further quotes a named academic to the effect that most valuable for ritual murder purposes are the very young and fertile. As to prevalence, it is said that “academics, human rights activists and media sources say that ritual murders are common throughout Nigeria” and apparently the phenomenon is extensively reported in the press there. It seems, however, that the authorities are active in attempts to combat the evil, the media reports referring, apparently, to “police investigations, post mortems, arrests and interrogations”. Apparently, a newspaper report appeared on 18th February, 2005, as to the fact that the three persons were sentenced to death for the murder of a child. It appears that a large number of arrests followed the investigation into the activities at Anambra State (referred to above) and that at the time of writing of that report, investigation was still pending. Reference was further made to what was described as “the most widely known cases of ritual killings” apparently in Imo State in 1996. Reports apparently appeared on the 2nd August, 2002, and the 24th January, 2003, and a number of persons were arrested and sentenced to death (including Chief Vincent Duru – who, it was inferred, was a person of standing or prominence in the community). This is known as the “Otokoto” saga, referred to again below.


7. I do not deal with the decision of the Tribunal since it is not questioned that a negative recommendation was again made to the Minister on 19th January, 2007 and H.O. was informed of this under cover of a letter which is undated but upon which the stamp of 22nd January, 2007 appears. In any event by letter dated 22nd February, 2007, H. was informed that the Minister had decided to refuse the relevant status to her son, E., and then she was informed also that having regard to the refusal of her application for asylum she might make an application for “Subsidiary Protection” or might make representations for leave to remain temporarily in the State. It was further pointed out that the Minister would first make a decision as to her eligibility for Subsidiary Protection and thereafter consider her representations pertaining to any temporary continued residence in the State. For the sake of clarity I should say that “Subsidiary Protection” is that contemplated pursuant to the European Communities (Eligibility for Protection) Regulations 2006, (Statutory Instrument 518 of 2006).


8. The next stage in the process was the application for humanitarian leave to remain in the jurisdiction, by letter dated 7th March, 2007, and under cover of which were submitted certain references and testimonials. The letter, however, also made reference to a submission for “Subsidiary Protection”. This submission appears to have been followed by letter of 4th May, 2007 in respect of humanitarian leave to remain. Why both were not pursued together does not appear to me to be clear. In any event, the submissions of 7th March, 2007, are lengthy and comprehensive. On that occasion, further country of origin information was furnished, being a document published by Human Rights Watch in or about July 2005, and entitled “Rest In Pieces: Public Torture and Death in Custody in Nigeria”, a document comprising a paper apparently delivered at the 8th Country of Origin Information Seminar at Vienna on 28/29th June, 2002, and under the auspices of “Accord/UNHCR” and thirdly, the report of “The Country of Origin Information Centre” based on a “fact finding trip to Nigeria . . . 12/26th March, 2006”. Again, there is no reason why these documents should not have been furnished earlier.


9. That headed “Rest In Pieces” apparently derives from the words used by (a) police officer(s) of, or concerning, persons murdered in police custody and with attempts since 1999 to address corruption and human rights issues in respect of the security forces. The document extensively deals with the use of torture by security forces, refers to the fact that the majority of victims were so-called “ordinary” criminals, sets out the history of the police and the fact of its alienation from society, poor facilities enjoyed by the police, rape of female suspects, the fact that the police were ill-equipped to address serious or violent crime, that there was insufficient well trained manpower to adequately address needs and excessive use of force in law enforcement due to its colonial origin. These are but a flavour of the contents of that report. Why it was furnished when it is of no direct and no significant indirect relevance, is difficult to say. The second report (that of Accord/UNHCR) of 28/29th June, 2002, (!) deals inter alia with “secret societies and cults”: unsurprisingly (having regard to their nature) it confesses that little is known about them and this is obviously a source of considerable difficulty in placing any reliance on the document. Be that as it may, these are referred to as organisations which are “thought” to have local influence associated with traditional power networks and that it was hard to tell whether police would be threatened by a secret society, but that human sacrifices for ritual purposes (presumably among cults) are extremely rare. Apparently they rely upon supernatural forces. It refers, however, to the fact that early marriages are regarded as a private domestic affair.


10. The “Country of Origin Information Centre” is Norwegian and refers inter alia to “ritual murders” and says that “several of our sources stated that it is their impression, through e.g. media reports, that ritual murders do take place in Nigeria”. They refer in this context to kidnappings, the fact that corpses are found and abductions occur, especially of poor people’s children (in some cases for occult rituals, in others for the sale of organs on the international black market). The Centre further states that “rumours of such abductions and ritual murders are widespread, not only in Nigeria but across Africa. However, it is very difficult to tell to what extent such rumours reflect real acts of murder and violence, and to what extent they must be classified as urban legends”. Again, there is no reason why this document was not furnished earlier in the decision making process.


11. In any event, a determination was made against granting Subsidiary Protection on 17th October, 2007, and communicated by letter of the same date to H. with a copy to her then solicitors. Thereafter, by letter dated 29th November, 2007, it was indicated by Messrs Cathal O’Neill & Co. on behalf of H., E. and C. that they wished to submit updated representations but did not do so under cover of that letter notwithstanding the lapse of time between notification and the same. The Minister indicated, perfectly reasonably, however, that he would not grant an extension of time, by letter of 30th November, 2007. In any event, notwithstanding this fact, further country of origin documents were sent to the Minister and these consisted of a Human Rights Watch Report entitled “Criminal Politics: Violence, “Godfathers and Corruption in Nigeria” (10 October 2007). A further Human Rights Watch Report entitled “They do not own this place: Government Discrimination against Non-Indigenes in Nigeria” (25 April 2006), and “Leo Igwe, Ritual Killing and Pseudo Science in Nigeria”, (June 2004). Having regard to the dates, of course, one cannot see any excuse for the failure to furnish these documents, with the exception of the first, at an earlier stage.


12. In any event, the first mentioned (“Criminal Politics”) refers to a crisis of governance in Nigeria, with corruption, violence, the presence of “godfathers”, violent cult gangs, armed groups, terror, chaos, vote rigging and police collusion in political corruption, with impunity for wrong doers. It contains a special study of “elections and non political violent crime, rape, murder and robbery” in Gombe and refers in that context to organised criminal gangs and in particular one known as Kalane with assaults, rapes, harassments and extortion. It says that innocent bystanders and members of rival gangs are subject to such violence, that there is impunity for such persons with police turning a blind eye to their conduct and that police work for political parties and do not act on an impartial basis: it is of no relevance since there is nothing whatsoever directed to the matter in hand and it is noteworthy that this is the most up to date document.


13. The second mentioned (“They do not own this place”), was of course, prepared long before the Minister, for example, was called upon to consider the question of humanitarian leave to remain and, by definition, before H. even arrived in this country. Its usefulness, accordingly, is open to considerable doubt, per se. In any event, such document refers, as one might suppose from the title, to government discrimination against “non indigenes”. It appears that in Nigeria, where there are in excess of approximately 250 tribes, there is a formal distinction in each State certainly, if not in smaller political units, between those who have a tribal claim to the area in question and those who have come to reside there, supposedly from outside. The latter might shortly be described as “second class citizens” even if they have resided in a given area for lengthy periods (including persons with residence of ancestors for several generations) – there is no reference to the position in the larger cities, however, such as Lagos. The distinction does not, in law, apparently arise at federal level, but, in practice, the federal government tolerates, if not acts in complicity with, the policy of the states in favour of indigenes. It is undoubtedly the case that this renders it difficult for persons to internally relocate in that they are placed at a disadvantage in areas to which they might do so.


14. The third document (“Earthword”) refers to the Nigerian child found in the Thames and his ultimate identification as a child who had lived in South Western Nigeria. It appears, however, that twenty-three people were arrested in connection with his murder and states that “ritual killing is a common practice in Nigeria” and that “every year, hundreds of Nigerians lose their lives to ritual murders”. It also refers to what is described as the “most notorious” case being that known as “Otokoto” and I need not dwell further on that save to say that arrests took place in February 2003, apparently, and what is described as the “ritualist syndicate” was apparently brought to justice. Apart from listing other examples of ritual murder and mutilation the report seeks to discuss why Nigerians might engage in such “bloody, brutal and barbaric acts and atrocities”; it attributes it to religion, superstition and poverty but it points out that such practice is not exclusive to Nigeria. The author of the report concludes by saying that “in 2001, there were so many cases of ritual killing in the Lagos metropolis that one of the nation’s major newspapers, The Punch, published a scary headline: “Ritualists Lay Siege to Lagos”. Personally, I think that caption would have better read: “Pseudo Science Lay Siege to Nigeria”. “I know nothing of the organisation known as “Earthword” or of Mr. Igwe or of “Han” nor, of course, did the Minister. The extent to which it would fall for consideration would, of course, be a matter of weight and no doubt this was so, from the point of view of the Minister.


15. Such then was the material furnished to the Minister. Of that material the report by the “second supervisor” issued the 23rd January, 2008, and approved by a more senior officer (one Dermot F. Cassidy) on the 24th January, 2008, was ultimately before, and approved by, the Minister, but I cannot read the date. The Minister appears to have considered material beyond that submitted to him on behalf of the applicants (and there has been, rightly, no criticism of that approach) and, in particular, he appears to have had special reference to a UK Home Office Report of 13th November, 2007. That deals with the geography and constitution and considers issues raised in the context thereof, at length and comprehensively. The documents considered were as follows –

      (i) The British Danish Fact Finding Mission Report (2005).

      (ii) The UK Home Office Report with regard to Nigeria (13th November, 2007),

      (iii) The US State Department Human Rights Country Reports (March 2007).

      (iv) The Human rights Watch “Overview of Human Rights Issues in Nigeria” Report (January 2007).

      (v) The Human Rights Watch Report “Rest in Pieces”.

      (vi) The Human Rights Watch Report “Criminal Politics”.

      (vii) The UN High Commission on Human Rights Report.

      (viii) The Canadian Immigration and Refugee Board Report.

      (xi) The Earthword Report.

      (x) United States State Department Report 2006.

      (xi) The Global Security Report (April 2005).

      (xii) Unspecified (as to origin) material (August 2005) obtained by the British High commission.

      (xiii) The Country of Origin Information Centre Report (fact finding trip 12/26th March 2006).

      (xiv) A certain Population Report (with an internet reference).

      (xv) A certain Report on Nigerian police (again with an internet reference).

      (xvi) The UN High Commissioner for Refugees Report (April 2005). “Internal Flight Options” in Nigeria.


16. All of this material was considered in the context of a decision under s. 5 of the Refugee Act (as amended) (prohibition of refoulement) and having considered it, it was submitted inter alia to the Minister that:-
      “Having considered all of the facts of this case, I am of the opinion that repatriating Ms. O. and her children to Nigeria is not contrary to section 5 of the Refugee Act 1996, as amended, in this instance.”

17. Further, under the heading “Recommendation” it is explicitly again stated that the report was:-
      “Considered under section 5 of the Refugee Act 1996, as amended”.
Inasmuch as the report was approved by the Minister, it is in accordance with authority (which I think I need not quote) to say that he approbated its entire contents and considered the material therein. In any event, a letter was written on his behalf thereafter on 12th March, 2008, referring to the refusal.


18. As will be seen from that letter under cover whereof a copy of “the Minister’s considerations pursuant to s. 5 of the Refugee Act 1996, (“as amended”) were enclosed. As will further appear therefrom the Minister further reiterates the fact that he considered the material in the submission. He goes on to say that “in reaching this decision the Minister has satisfied himself that the provisions of s. 5 (“the conditions of refoulement”) of the Refugee Act 1996, (as amended) are complied with….”.


19. Obviously, the Minister, accordingly, has considered all relevant matters pertaining to refoulement and section 5 of the Act.


20. At the commencement of the hearing, Mr. Woolfson, on behalf of the applicant, submitted that the Minister had failed to engage with the country of origin information and had, in effect, merely quoted in a mechanical fashion (I paraphrase) elements of reports submitted. He further submitted that the Minister failed to consider the contents of the relevant reports, but we can see that this is not so because the Minister has asserted that he has done so. In this context the judgement of Hardiman J. G.K. v. The Minister for Justice [2002] 1 I.R. 418 (at pp. 426 and 427) is relevant, where he refers to the-

      “Pure hypothesis (in that case), that what was said in a letter from the Minister for Justice might not be correct, and was therefore inadequate unless confirmed by an affidavit by or on behalf of the first named respondent. I do not believe that this is the position in law. A person claiming that a decision making authority has, contrary to its express statement, ignored representations which it has received must produce some evidence, direct or inferential of that proposition before he can be said to have an arguable case.”

21. There is such a direct assertion here and no evidence to the contrary. Thus, there cannot be any doubt about the position.


22. Mr. Woolfson then advanced the proposition that it was the obligation of the Minister, even if he did not have to engage with what he alleges was conflicting country of origin information in an overt way, to give reasons for his acceptance of some of the country of origin information and his rejection of other parts and the chain of reasoning which led him to the conclusion that refoulement was not in issue. This aspect of the matter was addressed in Baby O. v. Minister for Justice, Equality and Law Reform [2002] 1 I.R. 169, where Keane C.J. (considering the provisions of s. 5 of the Act of 1996) said:-

      “I am satisfied that there is no obligation on the first respondent to enter into correspondence with a person in the position of the second applicant (being the person in respect of whom it was held that refoulement did not arise) setting out detailed reasons as to why refoulement does not arise. The first named respondent’s obligation was to consider the representations made on her behalf and notify her of the decision: that was done and, accordingly, this ground was not made out.”

23. As pointed out by Miss Brett, the decision of the Minister in that case was the same as in the present and the form of words used was that “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”, as here. That might be considered to be an end to the matter where Mr. Woolfson’s proposition is concerned.


24. Mr. Woolfson, however, relies upon the decision of Charleton J. in Fr. N. and Ors v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 24th April, 2008.) which he says gives rise to an obligation to do so, and having regard to the consideration given therein to s. 5 of the Refugee Act 1996, in a more elaborate or comprehensive way then before. In particular, he says it clarifies that the prohibition on refoulement is in the nature of a right which differs from the discretionary exercise of a power of deportation by the Minister (say, for example, in the context of humanitarian leave to remain) and that, accordingly, Baby O. ought not to be followed. This is indeed a startling proposition. The relevant provisions of the 1996 Act, as amended, are as follows:-

      “Prohibition of Refoulement

      5.(1) A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.

      (2) Without prejudice to the generality of subsection (1), a person’s freedom shall be regarded as being threatened if, inter alia, in the opinion of the Minister, the person is likely to be subject to a serious assault (including a serious assault of a sexual nature).”


25. Mr. Woolfson’s fundamental point is that for the first time the decision of Charleton J. unambiguously elaborated the prohibition on refoulement as a legal right, and, in particular, he stated that:
      “In contrast to the discretion on humanitarian grounds vested in the respondent Minister under section 3 of the Immigration Act 1999 (pursuant to which temporary leave to remain might be granted), section 5 of the Refugee Act 1996 declares a right in favour of non-citizens. The analysis required thereby is more than the consideration of a discretion as to whether or not a privilege should be granted. Rather, it prohibits expulsion from the State in terms which uphold the life and freedom of non-citizens not to be subjected to the threat of serious assault.”

26. Apart from the consideration given to this provision in Baby O. the provision has been addressed very comprehensively by Feeney J. in Izevbekhai and Others v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 30th January, 2008). In that case deportation orders were made in respect of the three applicants on the 23rd November, 2005, and ultimately, after successful application for an extension of time to seek leave to apply for judicial review and in particular orders of certiorari quashing the deportation orders, such leave was granted to seek such review. Feeney J. was dealing with the substantive application.


27. What is of relevance here is that Feeney J. (para. 3.1 of his judgment) states that central to the courts consideration of the matter was the process leading to the Minister’s execution of the order and it appears that the applicants claimed therein that the prohibition of refoulement would prevent them from returning to their home country. Feeney J. pointed out that in Baby O. the Supreme Court reviewed the nature and extent of the Minister’s role when considering an applicant’s claim pursuant to s. 5 of the Refugee Act 1996. As we know, it was there contended inter alia that fair procedures required the Minister, in arriving at a decision in this regard, to give reasons for holding s. 5 had been so satisfied. As in Izevbekhai, so here, in as much as the Minister’s obligation was to consider the representations made on behalf of the applicants and notify them of his decision without an obligation to set out detailed reasons as to why refoulement does not arise. Feeney J. went on to say that in that case:-

      “It was contended on behalf of the applicants herein that there is, at least in a general way, an obligation to the Minister to identify the principal reasons as to why refoulement does not arise. That contention is inconsistent with the approach identified by Keane C.J. in the Baby O. case.”

28. Feeney J. of course, identified, by reference to the statute (quoted above) what he described as the “statutory limitations” on the Minister’s power to made a deportation order. This limitation, of course, arises only where the Minister has formed certain opinions. If there is a prohibition it follows, of course, as a matter of reason, that there is a right not to be deported and that seems to be an uncontroversial proposition. The fact that that restriction on the Minister’s power because of the prohibition was stated in precisely those terms by Charleton J., does not seem to me to add anything to the consideration which has been already given to the issue and, contrary to Mr. Woolfson’s submission, such identification could not, per se, undermine the decision of the Supreme Court, by which I am bound and as followed by Feeney J. Having stated that s. 5 expressly identified the circumstances in which refoulement could be prohibited “thereby placing a restriction on the power of the Minister to make a deportation order” Feeney J. stated that in Kouaype v Minister for Justice, Equality and Law Reform (Unreported, High Court, 9th November, 2005), Clarke J. “undertook a detailed review” of the principles applicable to the making of deportation orders by the Minister and that in that connection Clarke J. inter alia stated that;-
      “Having regard to all of the above it seems to me that the role of the court in reviewing that aspect of the decision of the Minister to make a deportation order which requires the Minister to be satisfied that the provisions of s. 5 of the Act 1996 do not apply to the case under consideration is, in all cases but in particular in cases where the applicant concerned has already been the subject of a decision to refuse a declaration of refugee status is necessarily significantly more the limited than the role of the court in considering the determination of the statutory bodies in respect of the refugee process itself.”

29. Feeney J. further pointed out (quoting Clarke J.) “that this Court must recognise the limited nature to its role in reviewing a decision of the Minister to make a deportation order” and in particular he adopted the following statement of Clarke J. in Kouaype:-
      “In the absence of unusual, special or changed circumstances or in the absence of there being evidence that the Minister did not consider the matters specified by section 5 in coming to his opinion, it seems to me that it is not open to the court to go behind the Minister’s reasoning. It should, in addition, be noted that the decision concerned is that of the Minister. It may well be that, as a matter of practice; the Minister will obtain reports and recommendations from officials within his department. However it is likely (and would appear to be the case on the facts of these proceedings) that the Minister will have before him (when making his decision) all of the relevant materials including the evidence which was before the statutory bodies and the decision of those bodies.”
I have referred above to the material which was before the Minister, including the country of origin information. There are no unusual, special or changed circumstances here.


30. In Fr. N. Charleton J. was called upon to deal with the concept of Subsidiary Protection and not with s. 5 of the Act of 1996. Thus, any observations made by him in respect of the latter are, of course, in strictness obiter dicta. Charleton J., as had been done by the Supreme Court, Feeney J. and Clarke J., stated that s. 5 “prohibits expulsion from the State in terms which uphold the life and freedom of non-citizens not be subjected to the threat of serious assault”. He points out what is, of course, the obvious, namely, that:-

      “A difference arises between the definition of a refugee under section 2 of the 1996 Act, requiring that an applicant should fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion; whereas the Minster is forbidden from expelling a non-citizen from the State where, under section 5 of the Act, where the life or freedom of that person would be threatened on account of his or her race, religion, nationality and membership of a particular social group or political opinion it would be fair to assume that the reference to persecution in section 2 of the 1996 Act is replaced in section 5 of the 1999 Act, by a reasonable risk that a threat to the life or freedom of a person being considered for deportation would arise on that same ground.”

31. Or, in other words, he points out that whilst there is an overlap between categories of persons whose deportation is prohibited under s. 5 and persons who are refugees, persons might not fall into the latter category, but could fall into the former (in effect).


32. He went to say that s. 5 is:-

      “Because of its somewhat broader definition, arguably not necessarily concerned solely with persecution but with the likelihood of a serious infringement of a non-citizen’s bodily integrity. This will very often occur by reason of persecution, which may be described as impersonal hatred arising from attributes projected onto groups within a society and which leads to violence, but it can also arguably occur due to chaos, lawlessness and the breakdown of State institutions. There is arguably a statutory right vested (by) the sections in non-citizens, not to be returned, by any means, to a place where they are likely to be persecuted and arguably, even absent active persecution, subjected to serious assault.”

33. Charleton J. pointed out, however, that in his judgment in Kouaype, Clarke J. said that judicial review of a decision of the kind in question here is not possible unless it could be shown that:
      (a) The Minister did not consider whether the provisions of s. 5 of the Refugee Act 1996, (the prohibition against refoulement) applies. Where the Minister says that he did so consider and in the absence of any evidence to the contrary this would be established.

      (b) The Minister could not reasonably have come to the view which he did. It is unlikely that such circumstances could arise in practice in most cases of failed asylum seekers, given that there will already be a determination after a quasi judicial process which will in substance amount to a finding that a prohibition contained in s. 5 does not arise. However, it should be noted that it is incumbent on the Minister to consider any matters which have come to his attention (whether by way of submissions or representations on behalf of the applicant or otherwise) which would tend to show a change in circumstances from the position which obtained at the time the original decision to refuse refugee status was made.

      (c) The Minister did not afford the applicant a statutory entitlement to make representations . . . on the so called “humanitarian grounds” or

      (d) The Minister did not consider any such representations made within the terms of the statute, or the factors set out in s. 3(6) of the 1999 Act, or (possibly) the Minister could not reasonably have come to the conclusion which he did in relation to those factors.


34. There is no suggestion here of irrationality on the part of the Minister. Charleton J. went further, however, and stated that to that analysis might be added any issue:-
      “as to whether the Minister has correctly discharged his function in determining whether removal from the State of a person seeking international protection would infringe any right additional to the non refoulement right under section 5 of the Refugee Act 1996, and which would otherwise entitle them to remain.”

35. There is no suggestion here (as the case was ultimately pursued and notwithstanding the pleadings) that any issue other than failure to give reasons is relied upon. From the identification by Charleton J. of that issue additional to the four identified by Clarke J. (i.e. whether or not the Minister correctly discharged his function in determining whether removal from the State of a person seeking international protection would infringe any right additional to the non refoulement right) it follows (as dealt with by Charleton J.) that:-
      “Where an additional right is claimed to those which entitle an applicant to refugee status . . . the Minister, prior to deporting such an applicant, must first consider whether the claim made is the same in substance as that which has already been contended for and has failed before the Refugee Applications Commissioner and the Refugee Appeals Tribunal. If the matter is the assertion of a new right based on substantially new facts, then the Minister must consider it fairly. The issue before the Minister is settled if the right asserted is an absolute one, such as the right arising from the prohibition on refoulement or the right not to be tortured.”

36. It is not clear to me that in the latter context Charleton J. is referring to the right not to be deported, in breach of the provisions of s. 5 because he explicitly says that such an additional or fifth issue arises only when one is considering removal of a person from the State seeking international protection which would infringe any right “additional to the non refoulement right under section 5”. Whether or not this is the case, however, it does not seem to me to detract from the obligation of the Minister as fulfilled by him in the present case.


37. Feeney J. also referred to the fact that section 5:-

      “Expressly identified the circumstances in which refoulement would be prohibited, thereby placing a restriction on the power of the Minister to make a deportation order, if the Minister is of the relevant opinion.”
Feeney J. also referred to the fact that in Kouaype, Clarke J. had pointed out that there were, in general terms, two statutory prerequisites to the making of a deportation order as follows:-
      “(1) The Minister is required to be satisfied that none of the conditions set out at s. 5 of the 1996 Act are present

      (2) The Minister is also required to consider the humanitarian and other factors set out at s. 3(6) of the 1999 Act insofar as they appear or are known to him”.


38. Feeney J. also pointed that, as would be in accordance with the general principles pertaining to judicial review applications and as pointed out by Clarke J. in Kozhukarov and Others v. The Minister for Justice, Equality and Law Reform, (Unreported, High Court, 14th December, 2005) that:
      “There are strong grounds for arguing… that, in addition to the matters identified in Kouaype, it is also, in principle, and provided that the appropriate facts can be established, open to a party to seek to challenge the making of a deportation order (in an appropriate case or a refusal to revoke a deportation order), where it can be shown that there are substantial grounds for arguing that the making of (or refusal to revoke), such an order would be in breach of another legal obligation on the part of the Minister (that is to say an obligation other than those imposed by section 5 of the 1996 Act or section 3(6) of the 1999 Act).”
This is substantially in accordance with Charleton J’s additional ground as I have described it.


39. In Dada and Ors. v. the Minister for Justice, Equality and Law Reform (Unreported, High Court, O’Neill J., 3rd May, 2006), what was in issue was an application to revoke a deportation order and the refusal of the Minister to do so, the applicants, having returned to Nigeria (from whence they came), consequent upon their failure to establish refugee status in this jurisdiction. They contend that they were subjected to what I might shortly term significant relevant maltreatment (and also allegedly had a fear of being subjected to female genital mutilation). It was submitted that there was a failure on the part of the Minister to consider what, in fact, had occurred subsequent to their return, namely, the risk of unlawful detention (such detention having, on their evidence at least, occurred, as they feared). It was submitted that the failure of the Minister to consider the latter was a breach of s. 4 of the Criminal Justice (United Nations Convention against Torture) Act 2000, and contrary to s. 3 of the European Convention on Human Rights. With respect to the question of refoulement (which arose in the context which I have attempted to shortly state so far as the issues raised in the case are relevant), O’Neill J. said:

      “Issues arising from Article 3 would seem to me to be very similar to issues arising in the context of section 5 of the Refugee Act 1996 (Prohibition on Refoulement) or section 4 of the Criminal Justice (United Nations Convention against Torture) Act 2004, and would, in my view, necessarily have to be treated in the same way as in the Baby O. case. It was submitted on behalf of the applicant that because of the importation of the ECHR into our domestic law by the European Convention on Human Rights Act 2003, that the approach adopted by Keane C.J. in the Baby O. case to Convention issues, for example, Article 3 or Article 8 issues, can no longer be considered to be good law. In my view, that submission must fail, as the applicants have not demonstrated, to my satisfaction, that the rule in the Baby O. case, is contrary to any aspect of the ECHR, or that in interpreting or applying that rule, pursuant to s. 2(1) of the European Convention on Human Rights Act 2003, any departure from the application of the rule is required.”

40. If leave was to be granted it would involve the acknowledgement, by me, that substantial grounds could arise for this Court not to follow a decision precisely in point of the Supreme Court, and as followed already in this Court, and it might be said, accordingly, that the question of whether or not there are substantial grounds for granting leave here answers itself, so obvious is the proposition that it must be refused in these circumstances. The position might be different, perhaps, if there was some obligation to engage with a putative deportee or as to the extent to which it might be appropriate to give reasons. Of course, once it is accepted that, as I have held, in the present case one cannot go behind the Minister’s statement that he considered relevant matters, Mr. Woolfson was left with the straightforward proposition that the reasons given were inadequate and that a greater detail should have been afforded, granted that full consideration was given to the question of refoulement. This proposition, however, cannot stand, equally, because of the decision in Baby O.


41. It seems to me the fact that the Minister must consider the right vested in a party not to be deported in breach of the principle of refoulement is not added to by Charleton J. when he said:

      “The issue before the Minister is settled if the right asserted is an absolute one, such as the right arising on the prohibition on refoulement or the right not to be tortured.”
There is no suggestion here that the Minister erroneously sought to balance the right in question against the entitlement of the State to maintain immigration control in pursuit of legitimate public policy. Ultimately, accordingly, Charleton J’s decision has no effects on the pre-existing law or understanding of the principles pertaining to, or the nature of, the rights against refoulement.


42. O’Neill J. added that in respect of the question of refoulement, an applicant:

      “Was merely entitled to have his representations considered and was not entitled to a discursive reserved judgment.”
This decision, in the foregoing respects, was quoted with approval by Birmingham J. in Olaitan and Ors. v. the Minister for Justice, Equality and Law Reform (Unreported, 19th June, 2008). That also concerned the revocation of a deportation order.
      “Inconsistent with the approach identified by Keane CJ. in the Baby O. case.”
I know that Charleton J. has expressed the view in the decision quoted, that:-
      “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 concern 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 and 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 reasoning and commonsense.”

43. This passage is used in support of the proposition that the well-known principles applicable when the court is exercising its power of judicial review of administrative action laid down in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, ought not to be applied to cases of this kind, but, rather, a heightened test, commonly now known as that of “anxious scrutiny” should be so applied instead. I do not necessarily take Charleton J’s observations as indicating that he adopts the latter test, which gives rise, of course, to what one might describe as a lower threshold for the intervention of a court of review. This is because every case which comes before the court, whether bearing upon constitutional or human rights of parties or otherwise, receives anxious scrutiny, including, of course, judicial review in matters pertaining to refugees. Whether or not that is the case, however, I have dealt with this issue on a number of previous occasions and I do not propose to deal with it in any detail here, save to say that I propose to follow my own previous decisions. Those decisions are B.J.N. v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 18th January, 2008), Kamil v. Refugee Appeals Tribunal & Anor. (Unreported, High Court, 27th August, 2008), Mwiza v. Refugee Appeals Tribunal and Another (Unreported, High Court, 22nd October, 2008), Kongue v. Refugee Appeals Tribunal and Others (Unreported, High Court, 29th October, 2008) and Bucumi v. Refugee Appeals Tribunal and Others (Unreported, High Court).


44. I am satisfied that I should follow and apply the previous decisions which I have made and I accordingly deal with this matter on the basis of what has commonly become known as the “O’Keeffe test” for the reasons set out in them.


45. I therefore refuse the relief sought and in as much as for the foregoing reasons I do not believe that any substantial grounds have been advanced on behalf of the applicants for the grant of leave.



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