High Court dismisses late judicial review application regarding Refugee Appeals Tribunal decision on minor's FGM fears.

Neutral Citation Number: [2008] IEHC 314

THE HIGH COURT

2006 1237 JR

BETWEEN

K. A. AND A. A. (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND, K. A.)

APPLICANTS

AND

THE REFUGEE APPLICATIONS COMMISSIONER,

THE REFUGEE APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

Judgment of Mr. Justice Hedigan, delivered on the 16th day of October, 2008.

1. The first named applicant is a national of Nigeria and a member of the Yoruba tribe. The second named applicant is her son, who

was born in Ireland. They are seeking leave to apply for judicial review of the decision of the Office of the Refugee Applications

Commissioner (“ORAC”) to recommend that they should not be declared refugees, and of the subsequent decision of the Refugee

Appeals Tribunal (“RAT”) to refuse their appeal from the impugned ORAC decision.

Factual Background

2. The first named applicant had two children with her first partner, who she met in 1993 and separated from in 1999. In 2001, she

had twins with another man, who she married in 2003. She says that in 2005, his family objected to their marriage and when she fell

pregnant again, they told her that she would have to undergo female genital mutilation (FGM) and that the child, once born, would be

subjected to tribal rituals. The applicant says that her husband supported the wishes of his family. She did not report these matters

to the police as she thought they would tell her to settle such matters herself. Instead, she fled Nigeria with her unborn child.

Procedural Background

3. The first named applicant arrived in the State on 11th October, 2005, having travelled via France. She indicated that her unborn

child should be included under her asylum application. She gave birth to a son - the second named applicant - on 4th November,

2005. In her ORAC questionnaire and interview, she claimed to fear that she would be subjected to FGM and that her son would be

subjected to tribal rituals. She was very non-specific as to what such rituals might involve, suggesting only that he might be

immersed under water in a river for confirmation of his parentage.

4. A section 13 report was compiled and in a decision dated 6th March, 2006, the ORAC officer recommended that the applicants

should not be declared refugees. Negative credibility findings were drawn and it was found that state protection and internal

relocation might reasonably have been available to the applicants. The applicants’ appeal to the RAT was rejected by decision dated

18th September, 2006. The Tribunal Member found that the first named applicant lacked credibility and that internal relocation was

available to the applicants.

Extension of Time

5. The Notice of Motion in the present case was filed on 19th October, 2006. The ORAC decision was notified to the applicants by

letter dated 9th March, 2006 and the RAT decision by letter dated 20th September, 2006. Thus, the applicants are well outside of the

14 day time-limit allowed by section 5 of the Illegal Immigrants (Trafficking) Act 2000; some seven months in respect of the ORAC

decision and 12 days in respect of the RAT decision. It therefore falls to the Court to decide whether or not there is good and

sufficient reason for extending time.

6. It is accepted on behalf of the applicants that there has been a considerable period of delay but it is submitted that time should be

extended in the light of the tender years of the second named applicant, who is not yet three years old. Reliance is placed on the

decision of Ojuade v The Refugee Applications Commissioner (unreported, High Court, Peart J., 2nd May, 2008). The respondents

oppose the extension of time. They contend that Ojuade is not authority for the proposition that an extension of time should not be

denied to minor applicants in any circumstances.

The Court’s Assessment as to the Extension of Time

7. The applicants in Ojuade were a Nigerian mother and her Irish-born daughter whose joint application for asylum was rejected by

ORAC and the RAT. As in the present case, the applicants sought to challenge both decisions on the basis that no individual

assessment was made as to the minor applicant’s fears. They were out of time by more than six months in respect of the ORAC

decision and more than four months in respective of the RAT decision. Peart J. refused to grant the mother an extension of time on

the basis that she had not adequately explained the delay. He went on, however, to grant an extension of time to the daughter,

stating as follows:-

“In my view, since the second named applicant is a minor, and one of very tender years, she ought not to be refused an

extension of time simply because the court is satisfied that her mother, the first named applicant, did not act in time to

seek to challenge decisions made which affect her also.”

8. I would adopt the approach taken by Peart J. in Ojuade without any hesitation. Peart J. was influenced by the fact that the

daughter had no act or part in the delay herself. I would strongly concur that a minor applicant, who can really only speak through his

or her parents, should not be penalised for that parent’s failure to act with all due expedition. That notwithstanding, it is clear that

Ojuade is not authority for the proposition that an extension of time should be granted to minor applicants as a matter of course. To

the above statement Peart J. was careful to add the following caveat:-

“That is not to be taken as expressing the view that in every case of delay by a parent in pursuing judicial review

proceedings on behalf of his/her minor child an extension of time must always be granted in respect of that minor’s

application. There must always be room for deciding that in a particular case, the grounds being put forward … are so

unstatable that it would be unjust to permit the application to be made out of time.”

9. Thus, the Court retains the discretion to grant or refuse an extension of time, and the exercise of that discretion may be

influenced by the Court’s assessment of the strength of the grounds advanced for challenging the relevant decision. I turn, therefore,

to the applicants’ arguments in the present case.

The Grounds Advanced by the Applicants

10. The applicants complain that the ORAC officer failed to specifically and individually address the fears advanced on behalf of the

second named applicant by his mother. It is accepted that those fears were expressed in a somewhat vague manner, but it is

contended that they nevertheless merited specific consideration. The respondents contend that the fears advanced on behalf of the

minor applicant were considered repeatedly and in a specific and precise manner.

11. At its highest, the fear advanced on behalf of the second named applicant is that if returned, he might be submerged in water. No

evidence has been provided to substantiate what fear, if any, could arise from such a ritual. On its face, it appears an innocent ritual

similar to traditional baptism. As noted by the RAT in its decision, no country of origin information was submitted nor could any be

found to suggest that such practices actually occur. Thus, the first named applicant has failed to discharge the burden of proof and

in my judgment, it is no surprise that both ORAC and RAT have not accepted the applicants’ claims.

12. Moreover, I have read through the ORAC decision and I have noted numerous references to the position of the second named

applicant. At paragraph 1, the officer states that the applicant fears persecution due to her refusal to be circumcised and to allow

her son to undergo some unknown ritual after his birth. At paragraph 3.1, it is reiterated that her partner’s family wanted her child to

undergo an unknown ritual in their village, when born. In the same paragraph, the officer again notes that the first named applicant

was informed that following the birth of her child he would have to undergo some ritual of confirmation probably involving a local river

in their local village. At paragraph 3.4, the officer states “[t]he applicant’s claims involve alleged violations and possible future

violations of fundamental human rights of her son and herself.” Reference to a fear of persecution of “the applicant and her son” is

made at paragraph 4.1. At paragraph 4.2, her alleged fear of “an unknown tribal ritual being performed on her son” is again recorded.

At paragraph 4.6, the officer finds that state protection would have been available to the first named applicant and her son and, at

paragraph 4.13, the officer finds that she and her child could internally relocate.

13. In the light of these explicit references, I am satisfied that the ORAC officer was fully aware of and gave specific consideration to

the fears advanced on behalf of the minor applicant. The nature of the consideration given to the minor applicant’s position seems to

me to be analogous to that given by the ORAC officer to the minor applicant’s position in Ojuade. In that case, Peart J. refused to

grant leave to the minor applicant to seek judicial review of the ORAC decision on the following basis:-

“In my view, having considered the entire contents of the s.13 report and recommendation …, it is clear that the second

named applicant was separately considered. There are frequent references therein to both the first named applicant and

the second named applicant, and it is not the case that the first named respondent simply dealt with the second named

applicant by dealing only with the first named applicant. Each was considered.”

14. Peart J. went on to grant leave in respect of the RAT decision, because:-

“In my view having read carefully the decision of the Tribunal, there is only one reference, and an oblique one at that, to

the second named applicant. […] There is no reference specifically to the second named applicant.”

15. The consideration given by the ORAC officer in the present case to the minor applicant’s position is of an entirely different nature

to that given by the Tribunal Member to the minor applicant’s position in Ojuade. The criticisms levied by Peart J. at the RAT decision

in Ojuade do not therefore apply in the present case.

Conclusion

16. In the light of the foregoing, I am of the view that in contrast to the situation in Ojuade, the grounds advanced by the applicants

in the present case are so unstatable that it would be futile to permit the application to be made out of time. The Court must bear in

mind the utility of granting an extension of time; I would be prepared to extend time for a minor applicant if there was good and

sufficient reason to do so. In the circumstances, however, I am not satisfied that there are good and sufficient reasons for extending

time and accordingly, I must refuse to do so.