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

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

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

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 Direction HC56, dated 19th December, 2011, states at para. 24 that:-

"Where materials (such as volumes of Country of Origin information) are extensive they should be bound separately from the statement of grounds, affidavits and contested documents."

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In large volumes of Country of Origin documentation particular passages relied on should be highlighted. It would have been very helpful to have had this material in accordance with the Practice Direction.

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7. The Mungiki are said to operate in secrecy and the sect is described as amorphous with its members largely unrecognisable to outsiders. The group reportedly had a system of informants; members often changed their appearance in order to avoid detection by the police. According to Amnesty International, between April 2007 and mid June, 2007 the Mungiki killed "tens of people" including police officers in Nairobi and central Kenya. Some of the victims were beheaded.

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8. The applicant stated that she was living with her son and that she traded in the market. In October, 2008 she was approached by Mungiki members and she was told to join the movement for her own sake. She stated that a Mr. Nagiri came and asked her to join. The applicant said she had no choice but to join or something bad would happen to her and her whole family could be punished. The applicant said that if she went to the police the Mungiki would have killed her, and the police could betray her to the Mungiki. She said that members of the Mungiki do not go to church, that they went and prayed in the mountains and rejected western clothes. The applicant said she was born a Catholic. She got a message to go to an official ceremony where she took an oath to join the organisation. She said that a goat was slaughtered and roasted and traditional beer was drunk. She was forced to drink a concoction of blood and urine, and said that she was told that she was part of the Mungiki until death. The applicant said that she...

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