JUDICIAL REVIEW
Record No. 609JR/2000

BETWEEN:-
	TOALU SMITH

APPLICANT
AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
 
RESPONDENT

Judgment of Mr Justice T.C. Smyth delivered the 17th day of December 2001

	The Applicant is a single female Nigerian National who has sought asylum in this state, having travelled from Nigeria to Ireland via Amsterdam.  She has four children and her partner and their father has been imprisoned in Nigeria for some six years.  On arrival in Ireland in early May, 1998 the Applicant completed a Questionnaire, in the course of which he gave as the reason for seeking asylum, the following answer: -
	“My husband was a Transport Union Leader, he was arrested during a crises broke due to a scarcity of fuel.
	I have try all my best in capacity for his release with the family and some friends.  I have spent all the money on my business with the responsibility and upbringing of our four children.
	I was so shattered and miserable I cannot cope anymore the landlord have driven us out of the house because I cannot meet up paying rent.  I have to took my four children to my ageing mother.  I have to go to a friend, this is the friend introduced an agent who helped people out of country with money this how I managed to get out of the country.  My husband still in prison, I am pleading for the Government of Ireland to grant me asylum.”

	The Applicant attended for interview on 8th May, 1998 during the course of which she (inter alia) stated that: - 
	(a)	Nigeria is not working.  There are no human rights at all (p.4)
	(b)	The authorities in Nigeria did not bother her after her “husband’s” arrest, that 			she could live in peace with her family.
	(c)	When asked “Have you any fear of living there?” She replied: 
			“Yes.  It is not safe for a woman living alone.  The Market Association 				tried very hard to get my husband out of prison to no avail.”
		 The question was then put in a more focused way as to what was the position 			since she had been alone, to which she made reply: - 
			“No one attempted to attack me in any way.  I found it difficult to bring 			up my family alone.” 

	In or about the month of June, 1998 a Mary McCarthy of the Asylum Division of the Respondent’s Department prepared an Assessment of the Applicant’s claim for Refugee status. A Mr O’Mahony agreed with Ms McCarthy’s analysis and conclusion and on 18th March 1999 recommended refusal of the applicant.  Some detailed criticism of this assessment was made during the hearing when it was asserted that it betokens a want of appreciation of the Applicant’s case in that it (inter alia) stated: - 
	“Ms Smith is not claiming asylum because of a fear of persecution herself.”
	“By her own admission, Ms Smith has never come to the attention of the Nigerian 			Authorities nor does she fear them for any reason.”
	In the events the Applicant failed to obtain a favourable outcome to her application.  It was not a “manifestly unfounded” decision which supports the view that whatever perception may have been entertained by the Applicant of the result, it was a decision given detailed consideration.  In the circumstances of that outcome the Applicant had:- 
	(a)	A right of appeal
	(b)	The benefit of legal advise on and at the appeal.
	(c)	The opportunity to consider all papers and documents which had been 				generated by her application.
	(d)	The benefit of an oral hearing.

	Accordingly the opportunity was given to the Applicant to disabuse the Appeal  Authority of any factual errors or any misinterpretation of facts that may have taken place or as was evidenced in writing prior to or at the hearing of the appeal.
	The Appeals Authority formulated a report of “Recommendation” dated 13 September 1999 which (inter alia) stated: -
	(1)	“At the beginning of the appeal in this case, it was indicated that credibility 			would not be an issue between the parties.  Therefore, the principle issue 				would be whether the details, as related by the Appellant, could amount to 
		persecution sufficient to bring her within the terms of Article 1A(2) of the 				1951 Convention.”	
	(2)	“It was indicated by the Department of Justice that there was no subjective 			basis for the Appellants fear of persecution.  The Application and the 				subsequent interview did not disclose any factual basis for alleging 				persecution.  She was thrown out of her house simply because she could not 			pay the rent.  There was no evidence of being in any personal danger.”
	(3)	“I am unable to conclude that there is an objective basis for fearing 				persecution or a real likelihood that it will occur in the Appellant is returned 			to her country of origin.”

	The Applicant was notified by a letter dated 4th November, 1999 that her appeal was unsuccessful, but advised of her entitlement to make application pursuant to Section 3 of the Immigration Act 1999 for ‘leave to remain on humanitarian grounds’ within 15 working days.  No representations were submitted within that period but in accordance with Section 3 an assessment was made on the material then available.  A further detailed submission was made on the Applicant’s behalf dated 2nd December, 1999 by the Refugee Legal Service and this submission was considered and a further recommendation of 6th December 1999 under the provisions of Section 3 of the Act 1999 was made confirming the recommendation that a Deportation Order issue.
	A Deportation Order was signed on 3rd February, 2000 and Notice thereof dated 10th October 2000 was sent to the Applicant c/o The Refugee Legal Service.  It is averred in paragraph 3 of Mr Watters Affidavit that this documentation was received on or about 17th October, 2000.  The appropriate papers were lodged in the Central Office of the High Court on the 2nd November 2000.  I am satisfied that a sufficient explanation has been tendered to the Court to permit the application to challenge the Deportation Order and Notice as within time, but in so far as the Applicant elected to proceed to appeal and after appeal elected to pursue her entitlement under Section 3 of the Illegal Immigrants Act, 1999, I am not prepared to extend the time in respect of the challenge to either the decision at first instance or on the appeal.  However, as the application for leave was agreed to be treated as the application for judicial review, I permitted Counsel for the Applicant to argue the case as if there were no time bars operative either against the decision at first instance or on the appeal, mindful of the finality of the hearing, unless any injustice might result from any considered rigidity on the time issue which I did not rule upon at the opening of the case but permitted the case to go through in its entirety.
	The submissions of the Applicant were that: - 
	(a)	A true analyses of the claim indicated a complete misconstruction of the 				Applicant’s case, citing in support extracts from the assessment of Ms 				McCarthy earlier referred to.
	(b)	The Appeals Authority failed to attach sufficient weight (as indeed did
		Ms McCarthy) to the extracts from the interview quoted earlier in this 				judgment.  In particular the Appeal Authority failed to appreciate the 				significance of what is recorded, vis: - 
		“She indicated that the police were at liberty to do whatever they liked to 				ensure a person’s silence.”
	(c)	That the authorities at each point of decision asked all the wrong questions.
	(d)	The Applicant comes within the definition of “Refugee” as defined by Article 			1(2) of the Convention and Section 2 of the Refugee Act 1996 and the 				applicable case law in support of that is set out in: - 

	(i)	“Minister for Immigration and Multicultural Affairs -v- Ibrahim 					[2000] H.C.A. 55 (16th November 2000) and in particular, the 					following passage from the judgment of Gaudron, J. 
		“The Convention does not require that the individual who claims to be a 				refugee should have been the victim of persecution.  The Convention test is 			simply whether the individual concerned has “a well founded fear of 				persecution.”  	Now does the Convention require that the individual establish 			a systematic course of conduct directed against a particular group of persons 			of which he or she is a member.  On the contrary, a well founded fear of 				persecution may be based on isolated incidents where are intended to, or are 			likely to, cause fear on the part of person of a particular race, religion, 				nationality, social group or political opinion.
			A second matter should be noted with respect of the Convention 				definition of “Refugee”, namely, that, as a matter of ordinary usage, the 				notion of “persecution” is not confined to conduct authorised by the State or, 			even, conduct condoned by the State, although, as already pointed out the 				Convention has, until recently, usually fallen for application in relation to 				conduct of that kind.  Now as a matter of ordinary usage, does “persecution” 			necessarily involve conduct my members of a particular group against a less 			powerful group.

		As a matter of ordinary usage, the notion “persecution” includes sustained 			and discriminatory conduct or a pattern of discriminatory conduct against 			individuals or a group of individuals who, as a matter of fact, are unable to 			protect themselves by resort to law or by other means.  That been so, conduct 			of that kind, if it is engaged in for a Convention reason, is, in my view, 				persecution for the purposes of the Convention.  That is so whether or not the 			conduct occurs in the course of a civil war, during general civil unrest or, as 			here, in a situation which it may not be possible to identify any particular 				person or group of persons responsible for the conduct said to constitute 				persecution.”
	
	(ii)	Chan-v- Minister for Immigration and Ethics Affairs [1989] (169) C.L.R. 			379 at p.430 per McHugh, J. in respect of which Hill, J. observed in 				Mohammed -v- Minister for Immigration and Multicultural Affairs 				[1998] 83 F.C.R. 234 at 241 - 
		“Where the fear of persecution is in respect of an Applicant’s membership of a 		group, acts of systematic harassment against the group will show the fear to 			be well founded.  There need not be any particularly act in fact perpetrated 			against the individual.”
	(iii)	‘The criterion to establish persecution is harassment, harassment that is so 				constant and unrelenting that the victims feel deprived of all hope of recourse, 			short of flight, from government by oppression.' (The Law of Refugee Status 			by Hathaway, citing with approval the Canadian Immigration Appeal Board).
	(iv)	Karanakaren -v- Secretary of State for the Home Department [2000] 3 All 		E.R.449 p. 470 per Brooke, L. J. - 
			“... When assessing the future, the decision maker is entitled to place 			greater weight on one piece of information rather than another.  It has to 				reach a well rounded decision as to whether, in all the circumstances, there is 			a serious possibility of persecution for a convention reason, or whether it 				would be indeed unduly harsh to return the asylum seeker to the alleged 
		‘safe’ part of his/her country”.
	(v)	Immigration and Naturalisation Service -v- Cardoza-Fonseca 480 U.S. 			421 at 448: - 
			“There is obviously some ambiguity in a term like “well founded fear” 			which can only be given concrete meaning through a process of case by case 			adjudication.”

	The submissions of the Respondents were that: -
	(a)	Whatever frailties that existed at first instance (which were not conceded) 				were capable of being remedied on appeal.  The case was distinguishable in its 		first instance characteristics to Stefan -v- The Minister for Justice Equality 			and Law Reform and Others (Supreme Court unreported 13th 				November, 2001)	
	(b)	The correct questions were raised at first instance and on appeal and the 				Applicant had the benefit of knowing before appeal what the views of the 				officer(s) of the Respondent were and of having legal advise and assistance in 			addressing same and testing same by way of cross-examination at the oral 				hearing of the appeal.
	(c)	That the correct test was applied and most particularly at the appeal.
	(d)	That the case advanced in Court was not that advanced either at first instance 			or on appeal and in so far as it formed part of the Section 3 application, it was 			clearly considered on 6th December 1999 before any Deportation Order was 			signed.  Both considerations under Article 1A and 33 of the Convention were 			considered.  
	(e)	Even if the Court were of a view other than that taken at first instance, on 				appeal or under Section 3 of the Act of 1999, the decisions pass the rationality 			test and the decision in Camara -v- The Minister for Justice Equality and 			Law Reform and Ors (unreported 26th July, 2000 - Kelly J.).

Decision: - 	
	“I am satisfied and find as a matter of fact and in law that 
	(a)	The evidence sustains and is consistent with the submissions of the 				Respondent.  The Courts function is that of review, it is not a court of appeal.
	(b)	The principles in the case law cited were not disputed.  
	(c)	The correct questions were asked.
	(d)	The correct tests were applied.
	(e)	There was evidence upon which the impugned decisions could be founded.  
	(f)	There was no irrationality in the decisions made.

	The Applicants case advocated ably and concisely in Court was not that appearing upon the papers, even it had been, the evidence as disclosed in the papers does not support the conclusions sought to be deduced.  Accordingly the application stands dismissed.
	[As a footnote to this determination I observe that the veracity and merits of an Applicant even within the limits of the elements of discretion in judicial review matters is not enhanced by such matters as the averment in paragraph (23) of the grounding Affidavit that “The Applicant is not a citizen of Nigeria” when throughout the entire Asylum/Refugee/
Immigration Process, the basic fact was that she was such a citizen: nor is it of assistance that one of the Applicant’s daughters came to Ireland ten months after the Deportation Order was served and that fact used to move the Court for an adjournment until the application of the daughter for Refugee Status was considered and in that context praying in aid the special position accorded to “The Family” in the Constitution.  These were irrelevant considerations in my judgment.  I consider it maybe of assistance nonetheless in like cases to signal that the Court will adhere, as it must to the observations made by the Supreme Court in P.B.N.L -v- the Minister for Justice Equality and Law Reform and Ors (unreported 30th July, 2001) concerning the requirement to consider the application before the Court and that the rights and entitlement of the Respondents are not to be delimited because some other application awaits determination.  The discretion of the High Court must have regard to the rights, interest and entitlements of both parties, the law and the Constitution.