Judicial review refused in human trafficking asylum case

A woman who sought judicial review of a decision of the Refugee Applications Commissioner on the grounds the Commissioner did not have regard to her status as a victim of human trafficking has had her application refused.

The woman, identified as C.C., is a native of Nigeria. She holds that she left Nigeria in 2011 in order to seek work. Her travel was arranged by a third party on the basis that she would repay the cost of travel from work that he would arrange.

The applicant was brought to Belfast, where she claims to have been detained and subjected to rape attempts. She escaped and travelled to Dublin and then onto Cork, where in 2012 she gave birth to a child.

In October 2011, following advice from a Nigerian woman who accommodated her in Cork, she sought asylum.

Her Counsel stated that neither the Refugee Applications Commissioner, nor the Minister for Justice and Equality, took steps to investigate the alleged incidence of human trafficking.

Nor did they provide medical care, counselling or psychological support, and no appropriate accommodation which would constitute a place of safety was provided.

Her Counsel noted that human trafficking in Ireland was increasing, and that there was a need to refer the current case to appropriate authorities, and attempt to investigate the alleged offences before determining the applicant’s refugee status.

Delivering the High Court’s judgment, Mr Justice Eagar outlined the interview which had occurred between C.C. and the Refugee Applications Commissioner, in which C.C. expressed her desire to seek work outside Nigeria, as well as her fear that her trafficker would cause problems for herself and her family.

However, it was noted that the Refugee Applications Commission’s report concluded that the applicant constituted an economic migrant, not a refugee, and that it was “difficult to substantiate in any real or meaningful way if the events the Applicant describes have actually occurred in Nigeria, given the inherently subjective nature of much of her claim”.

It was therefore found that the applicant had not established a well-founded fear of persecution as required by s. 2 of the Refugees Act, 1996.

The Refugee Commissioner noted that the judicial review papers from the present case had been passed to the Anti-Trafficking Unit of the Department of Justice and Equality, who had attempted to contact the applicant on a number of occasions.

It was noted that the applicant had made no attempt to make a complaint in relation to human trafficking. However, the counsel for the applicant confirmed that the applicant had agreed to speak with the Garda.

After setting out the grounds for judicial review as those contained within O’Keeffe v. An Bord Pleanála 1 IR 93, the counsel for the applicant submitted that “the decision-maker erred in this case that he did not take into account the fact that the applicant was the victim of a set of circumstances and that he did not seek to have the matter further investigated before making a decision in the case”.

Rather than address these issues however, the Court noted that it must first determine whether it had any basis to judicially review the Commissioner’s decision.

It noted that the applicant could appeal her decision to the Refugee Appeals Tribunal, pursuant to the Refugee Act, 1996.

Citing P.D. v. the Minister for Justice and Law Reform & Ors IEHC 111, the Court noted MacEochaidh J’s observation that “intervention by way of judicial review in respect of decisions of the Refugee Applications Commissioner is rarely permitted and only in cases which at least involve errors as to jurisdiction but even then, the court retains discretion to refuse”.

Further citing Stefan v. The Minister for Justice Equality and Law Reform 4 IR 203, B.N.N. v. Minister for Justice Equality & Law Reform 1 IR 719 and M.A.R.A. (Nigeria) (infant) v. the Minister for Justice & Ors. IESC 71, the Court found that it was for it to decide whether an injustice had been done, which was incapable of being remedied on appeal to the Refugee Appeals Tribunal.

It further noted that it was not the role of the Refugee Applications Commissioner to investigate incidences of human trafficking, nor to provide medical care, counselling and psychiatric reports.

Neither was it the role of the Commissioner to refer the complaint to the relevant authorities, or to await the investigation of trafficking.

Rather, it was the Commissioner’s role to consider the question as to whether the applicant complies with the definition of refugee in the Refugee Act, 1996. The Commissioner had therefore carried out its role, and any complaint in relation to its analysis could be made to the Refugee Appeals Tribunal.

Concluding, the Court found that “the applicant has not demonstrated a clear and compelling case of an injustice which has been done and that it was incapable of being remedied on appeal to the Refugee Appeals Tribunal”.

  • by Rachel Killean for Irish Legal News
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