C (Qfcamc) ( A Minor Suing by Her Mother and Next Friend C(Qf)

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 12 January 2012
• Neutral Citation: [2012] IEHC 4
• Court: High Court
• Date: 12 January 2012

[2012] IEHC 4

THE HIGH COURT

[No. 1180 J.R./2008]

[No. 1181 J.R./2008]

C (QF) & Ors v Refugee Appeals Tribunal & Ors

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

Q. F. C., A. M. C. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND Q. F. C.)

APPLICANTS

AND

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

RESPONDENTS

AND

I. C. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND Q. F. C.)

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

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11

A (M A M) v REFUGEE APPEALS TRIBUNAL & ORS UNREP COOKE 8.4.2011 2011 IEHC 147

REFUGEE ACT 1996 S11(B)

MESSAOUDI & EDOBOR v REFUGEE APPEALS TRIBUNAL & ORS UNREP FINLAY-GEOGHEGAN 29.7.2004 2004 IEHC 156 2004/30/7084

S (F K) v REFUGEE APPEALS TRIBUNAL UNREP DUNNE 30.10.2009 2009/51/12917 2009 IEHC 474

IMMIGRATION LAW

Asylum

Judicial review - Leave - Decisions of tribunal - National of Somalia - Applications of mother and child - Extensive findings of lack of credibility - Negative recommendation - Country of origin information - Dysfunctional and failed state - Alleged past persecution - Affirmation of recommendation based exclusively on lack of personal credibility - Absence of prospective assessment - Delay between oral hearing and report - Whether decision unreasonable or irrational - Whether substantial reason for questioning whether negative recommendations adequately based upon full examination of application - Factor of returning to Somalia with child born to another man - A (MAM) v Refugee Appeals Tribunal [2011] IEHC 147, (Unrep, Cooke J, 8/4/2011); Messaoudi v Refugee Appeals Tribunal [2004] IEHC 156, (Unrep, Finlay Geoghegan J, 29/7/2004) and FKS v Refugee Appeals Tribunal [2009] IEHC 474, (Unrep, Dunne J, 30/10/2009) considered - Refugee Act 1996 (No 17), ss 11 and 13 - Leave granted (2008/1180JR - Cooke J - 12/1/2012) [2012] IEHC 4

C (QF) v Refugee Appeals Tribunal

Facts: The first named applicant was the mother of the second application in the case and of the applicant in another case, both heard together. She claimed to be a national of Somalia. The challenged appeal decisions were based upon trenchant findings of a lack of credibility due to inconsistencies and implausibilities in the account. The applicants alleged that there was a delay between the oral hearing and the decision of the Tribunal, that the decisions made were largely in respect of past persecution claims and the separate application of the minor applicant was disposed of because of the finding of lack of credibility in the mother's case.

Held by Cooke J. that leave would be granted for an order of certiorari in each case quashing the Tribunal decision. There was a substantial reason to question the negative recommendations as to whether they were adequately based upon a full examination of the asylum applications. There was a substantial ground raised as to the adequacy of the consideration given to the claim of the minor applicant. The findings as to lack of credibility were open to the Tribunal and were not findings that the Court could interfere with.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Cooke delivered the 12th day of January 2012

2 1. These are two separate but related cases in which the first named applicant in the case bearing Record No. 2008/1180J.R. ("the first case") is the mother of both the second named applicant in that case and of the applicant in case Record No. 2008/1181 J.R. ("the second case"). The cases were heard together and the applicants seek judicial review of decisions of the Refugee Appeals Tribunal given on the same date, 24 ^th September, 2008.

3 2. The mother claims to be a national of Somalia and to have fled from there to Ethiopia. In the report of the Commissioner under s. 13 of the Refugee Act 1996, ("the Act of 1996") it appears to have been accepted that this part of her claim was true. It was also accepted that she was a member of the Tunni clan although not that this particular ethnic group was a minority clan as she maintainecd. (See paragraph 10 below.) Notwithstanding the very extensive findings of lack of credibility subsequently made by the Tribunal however, it does not appear to be doubted or disputed that the mother does indeed come from Somalia.

4 3. The significance of this as a starting point for these applications is that of the many countries from which asylum seekers in this jurisdiction arrive, Somalia is possibly the most notoriously dysfunctional. It is a failed state. As the country of origin information exchanged throughout the asylum process in the present cases indicates, it has for many years been without effective central government other than in a small area of central Mogadishu and even that area has been affected by continuing internal conflict. Somalia has been afflicted by famine and has continuously been the source of piracy and kidnappings.

5 4. It might well be said therefore that these cases epitomise one of the most acute dilemmas that can face decision makers in the asylum process and which, as a result, stretch the limits of the principles covering judicial review when their decisions are sought to be challenged before the High Court.

6 5. The reason for his difficulty is that the challenged appeal decisions are based mainly upon extensive and even trenchant findings of lack of credibility with, particularly in the case of the mother, findings influenced by her demeanour and evasiveness both in the s. 11 interview as recorded in the s. 13 report of the Commissioner and at the appeal hearing. It is well settled law that it is the exclusive function of the decision makers in the asylum process to assess credibility and the High Court cannot substitute its own view of credibility when reviewing such decisions in exercise of its jurisdiction in judicial review. Because of the undoubted fact that Somalia is notoriously a dysfunctional and failed state and a place of internal conflict and a source of international lawlessness, it follows that any decision maker faced with a claim for asylum based upon a risk of persecution of any applicant who is accepted as being from Somalia must proceed with extreme caution and must reject a claim upon grounds of lack of personal credibility only when it is compellingly necessary to do so.

7 6. It must also be borne in mind when considering the validity of decisions in the asylum process based on lack of credibility, that the evaluation of the claim to refugee status involves not only the assessment of the truth and reality of the claim made on the basis of alleged past persecution or serious harm previously suffered but may also require a prospective assessment to be made of the likelihood of future persecution or serious harm in the event of repatriation to the country of origin in question. The particular story told by the asylum seeker may correctly be disbelieved but it may yet be important to examine the possibility that the person in question may nevertheless have a valid Convention based reason for being unable or unwilling to return to the country of origin especially where it is known to be a place of internal conflict or of prevalent violence. In its judgment in A. v. RAT & Ors [2011] IEHC 147 (at para 17) this Court, having reviewed the case-law therein cited, described the correct approach in these terms:

"The sole fact that particular facts or events relied upon as evidence of past persecution have been disbelieved will not necessarily relieve the administrative decision-maker of the obligation to consider whether, nevertheless, there is a risk of future persecution of the type alleged in the event of repatriation. In practical terms, however, the precise impact of the finding of lack of credibility in that regard upon the evaluation of the risk of future persecution must necessarily depend upon the nature and extent of the findings which reject the credibility of the first stage. This is because the obligation to consider the risk of future persecution must have a basis in some elements of the applicant's story which can be accepted as possibly being true. The obligation to consider the need for 'reasonable speculation' is not an invitation or pretext for gratuitous speculation: it must have some basis in, and connection to, the apparent circumstances of the applicant."

8 It is against the background of this approach that it is necessary to consider the grounds raised in these two cases.

9 7. The first named applicant in the first case ("the mother") is stated to have arrived in the State in August 2003, and to have made her asylum application on the 1 ^st September, 2003, so as to include the second named applicant, her Ethiopian-born daughter. The applicant in the second case is a daughter born to the mother in Ireland on the 10 ^th August, 2006. The mother claimed to have five children in Somalia and not to know the whereabouts of her husband or of those children. She said she was a member of the Tunni tribe. She claimed that members of that tribe were persecuted, killed and raped. She and members of her family were shopkeepers and she claimed that her father had been beaten and robbed in his shop by members of another tribe and that in 1999 her husband was similarly beaten and robbed by members of another tribe in his shop.

10 8. As already indicated, the mother's application was rejected on grounds of lack of credibility first in the s. 13 Report of the Commissioner dated the 18 ^th November, 2004. At para. 5.3 of that Report, a number of the statutory considerations under s.11B of the Act of 1996 relating to credibility were identified:-

11 · - The applicant had not provided a reasonable explanation for the absence of any identity documents;

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