C.N. (Kenya) v Refugee Appeals Tribunal and Others

 
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[2014] IEHC 597

THE HIGH COURT

[No. 704 J.R./2010]
N (C) [KENYA] v Refugee Appeals Tribunal & Ors
No Redaction Needed
JUDICIAL REVIEW

BETWEEN

C.N. (KENYA)
APPLICANT

AND

REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND
RESPONDENTS

REFUGEE ACT 1996 S17(1)

EEC DIR 85/2005

EEC DIR 85/2005 CHAP 5

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

EEC DIR 83/2004

REFUGEE ACT 1996 S11B(B)

O'KEEFFE v BORD PLEANÁLA 1993 IR 39

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

Judicial Review – Order of Certiorari – Refugee Appeals Tribunal – Refugee Act 1996 – Adverse Credibility – Practice and Procedures – Legal Error – Female Genital Mutilation – Persecution

2010/704JR - Eagar - High - 2/12/2014 - 2014 42 12119 2014 IEHC 597

Facts: This case concerned an application for judicial review seeking an order of certiorari quashing the decision of the first named respondent dated 14th May, 2010, to confirm the recommendation of the Refugee Applications Commissioner, and seeking an order permitting appeal of the applicant for a determination de novo by a separate member of the Refugee Appeals Tribunal. The applicant, a citizen of Kenya had claimed to have a well-founded fear of persecution on grounds of Female Genital Mutilation (FGM). The applicant sought to challenge the decision of the first named respondent on the basis that: (1) her claim for refugee status had not been lawfully determined by means of a procedure which complied with the minimum standards required to be met by Council Directive 2005/85/EC of 1st December, 2005, in that the said procedure deprived the applicant of an effective remedy against the first instance determination of her application for asylum before a court or tribunal and (2) the Tribunal erred in law and acted in breach of fair procedures in the manner in which the adverse credibility findings were arrived at.

Held by Justice Eagar having regard to the seriousness of the allegations, the submissions presented and available evidence, that in respect to the issues of credibility, that the travel arrangements of the applicant through Britain were peripheral to the core issue. It was further determined that the finding in relation to the credibility of the applicant in relation to the forcible circumcision of the applicant by a group of men did not appear to be a reasonable decision and taking into account what was likely to be involved in the FGM of the applicant. It was deemed to be an unreasonable decision in light of the fact that FGM is not generally carried out by men and the first named respondent failed to give any reason as to why she did not believe why she found it incredible that the group of men did not perform the circumcision. In respects of the State protection argument, Justice Eagar further reasoned that the limited attention to the Country of Origin information had been selected in relation to the position of the Mungiki and the police in Kenya. Consequently, the Court granted the order of certiorari quashing the decision of the first named respondent and remitted the matter for consideration by another tribunal member.

Mr. Justice Eagar
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This is an application for judicial review seeking an order ofcertiorari quashing the decision of the first named respondent dated 14th May, 2010, to confirm the recommendation of the Refugee Applications Commissioner, and seeking an order permitting appeal of the applicant for a determination de novo by a separate member of the Refugee Appeals Tribunal.

2. The grounds upon which reliefs are sought are:-
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(1) The applicant's claim for a declaration of refugee status under s. 17(1) of the Refugee Act1996 (as amended) has not been lawfully determined by means of a procedure which complies with the minimum standards required to be met by Council Directive 2005/85/EC of 1st December, 2005, in that the said procedure deprives the applicant of an effective remedy against the first instance determination of her application for asylum before a court or tribunal in compliance with the requirements of Chapter V of the said Directive.

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(2) The Tribunal failed to perform its function of assessment of the facts in accordance with the Refugee Act1996, or the UNHCR Handbook and/or S.I. 518 of 2006/ Council Directive 2004/83 and/or Council Directive 2005/85EC. The Tribunal erred in law and acted in breach of fair procedures in the manner in which such adverse credibility findings were arrived at. Such findings were based on conjecture and in the main referred to peripheral matters. The Tribunal further failed to make any findings on significant elements of the evidence, including evidence of past persecution. The Tribunal erred in law in making findings in respect of state protection and internal relocation which were unsupported by the evidence of which were made without regard to the adequacy or efficacy thereof. Country of origin reports were selectively relied upon. The Tribunal erred in law in taking into account matters irrelevant to its determinations and/or failed to take into account relevant considerations.

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3. The applicant swore an affidavit on 1st June, 2010. She stated that she was born on 26th October, 1974. She stated she was forced to join the Mungiki, which is an ethnic organisation and sect in Kenya. It is largely based in the Kikuyu tradition. The applicant stated that numerous attempts were made to force her to suffer Female Genital Mutilation (FGM). She said she was raped on two occasions by Mungiki members. She said that police protection is hopeless and is unavailable to her. As a result of her fears and her history which has left her with psychiatric difficulties, she fled from Kenya and arrived in Ireland on 15th May, 2009, and applied for asylum. She was interviewed by the Refugee Applications Commissioner on 12th June, 2009, and she was subsequently notified that the Commissioner had refused her asylum status by letter dated 14th July, 2009. She appealed against this determination to the first named respondent. Submissions were forwarded to the Chairperson of the Refugee Appeals Tribunal by letter of the solicitors for the applicant, and the hearing of the appeal by the first named respondent took place on 14th December, 2009.

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4. The applicant stated that she was living with her son in Gathaithi village in the Nyeri, Central Province in Kenya. She stated that in October, 2008 she was approached by members of the Mungiki. It is generally accepted by both sides that in 2007, the Mungiki were a political religious sect in Kenya established in the 1980s. The group's members were mainly from the Kikuyu, Kenya's largest ethnic group (Mungiki were said to reject western values and support the values of traditional tribunal customs and beliefs).

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5. The sect advocates female circumcision (otherwise Female Genital Mutilation). They rejected westernisation in all things that they believed to be trappings of colonialism, including Christianity. In 2007 the Mungiki embarked upon a murderous campaign to instill fear by beheading drivers, conductors and Mungiki defectors. They are known for their extreme violence and are one of the most feared criminal organisations in Kenya. Substantial Country of Origin information documents were referred to in the course of submissions.

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6. I note that Practice...

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