Edionewe v Refugee Appeals Tribunal (O'Gorman) & Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 21 October 2004
• Neutral Citation: [2004] IEHC 338
• Docket Number: Record Number:No. 41 JR/2004
• Court: High Court
• Date: 21 October 2004

[2004] IEHC 338

THE HIGH COURT

Record Number:No. 41 JR/2004

EDIONEWE v. REFUGEE APPEALS TRIBUNAL (O'GORMAN) & MINISTER FOR JUSTICE

Judicial Review

Between:

Becky Elisenme Edionewe

Applicant

And

Refugee Appeals Tribunal (Michelle O'Gorman — Tribunal Member), and Minister for Justice Equality and Law Reform

Respondents

Citations:

BUJARI V MIN JUSTICE UNREP FINLAY-GEOGHEGAN 7.5.2003 2003/7/1414

REFUGEE ACT 1996 S17(1)(B)

UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951

Abstract:

Judicial review - Certiorari - Refugee law - Immigration and asylum - Deportation - Lack of credibility - Practice and procedure - Fair procedures - Whether decision of Refugee Appeals Tribunal flawed - Whether failure to give adequate weight to applicant’s youth and illiteracy - Refugee Act, 1996.

Facts: The applicant had arrived in the State and had applied for refugee status. The applicant was from Nigeria and was refused refugee status by the Refugee Appeals Commissioner and on appeal by the Refugee Appeals Tribunal. The applicant then initiated the present application seeking leave to bring judicial review proceedings. The applicant’s claim for asylum had mainly been rejected on the grounds of the lack of credibility. Counsel on behalf of the applicant submitted that there were a number of infirmities in the decision of the Tribunal Member and in particular that the Tribunal Member had failed to have any regard as to whether the applicant possessed a well-founded fear of prosecution. Prior to the applicant’s case the applicant’s mother had also lodged an asylum claim in the State which had been refused on the grounds of lack of credibility. It was contended on behalf of the applicant that the Tribunal Member had relied on this case and had failed to separately assess the applicant’s credibility. There was evidence that the applicant had suffered a sexual assault in her native country. It was also submitted by counsel for the applicant that the applicant was quite young at the time of the hearing, lacked any significant education and was classified as illiterate.

Held by Mr. Justice Peart in granting leave to bring judicial review proceedings. Although the applicant was over the age of majority at the time of the hearing the applicant was a child in every way apart from her age. An arguable and weighty ground had been put forward that the Tribunal Member had failed to give proper weight to the sexual assault that the applicant had suffered and the possible effect on the applicant to tell her story and recall events. In addition there had been factual errors made by the Tribunal Member and a failure to take account of the applicant’s youth, her lack of education and illiteracy. Leave would be granted to bring judicial review proceedings and an injunction would issue against any steps by the second-named respondent to deny the applicant refugee status or to make a deportation order.

Reporter: R.F.

Judgment of

Mr Justice Michael Peart

1 Since this is an application for leave, and not the substantive hearing, and since I am deciding that leave should be granted, I propose to state my reasons fairly briefly, rather than deliver a substantial judgment in which all the background facts as well as the helpful arguments of Counsel on each side would be set out and considered in full. Apart from being in my view an unnecessary exercise, and one which does not advance the cause of an expeditious administration of justice, there is also a danger that what I might say in relation to some arguments could inappropriately enter upon the function of the substantive hearing.

Background facts:

2 The applicant was a minor at the time she entered this country as an unaccompanied minor on the 2nd July 2001. While her affidavit states that she was born on the "4th October 1984", the application form completed on arrival refers to the date of birth as "4/10/83". If the latter is correct, she was aged 17 years and 9 months upon arrival. It is accepted that she had very low literacy skills on arrival, although some progress has been made in this regard by the present time. The Social Worker assigned to her following her arrival and who assisted in the completion of the Questionnaire on 6th July 2001 describes her as "illiterate". She was interviewed just one year later on the 10th July 2002. If her date of birth is 1983, it follows that by the time this interview took place she had passed her 18th birthday and was 18 years and 9 months and was no longer an unaccompanied minor, but an adult in the legal sense of that term. If her birth date is 1984, then at the date of her interview she was still a minor being aged 17 years and 9 months, and that remained the position at the time of the RAC decision of 5th September 2002. This matter is of some significance.

3 But one way or another, and regardless of which date of birth is correct, by the time the matter came before the Tribunal by way of appeal from the decision of the Refugee Appeals Commissioner on the 7th May 2003, the applicant had ceased to be a minor in the legal sense of that term, and the services of the officer from the health board were terminated. This appeal was unsuccessful, and the applicant appears to have been notified of this fact by letter dated 30th December 2003.

4 The present application for leave to seek relief by way of judicial review was lodged on the 22nd January 2004. Taking into account the date on which the letter of notification is deemed to have been received, this application is out of time by a few days. The Respondent, through Counsel, has informed this Court that it is consenting to the necessary extension of time for commencement of this application, and given particularly the time of year during which the clock was ticking against the applicant and her legal team, this is a very reasonable attitude adopted by the respondents. There is therefore no need for me to rule on that issue, and I extend the time accordingly up to the 22nd January 2004.

5 One significant factor in this case is that the applicant's mother arrived in this country after the arrival of the applicant, and made a separate application on her own behalf for refugee status which has been refused. It appears from the papers that the mother's application was refused on the grounds of a complete lack of credibility. Her application was heard separately and by different personnel from those who dealt with the applicant's case. However, the applicant's application has been refused largely on lack of credibility grounds, but it is contended by Mr Saul Woolfson BL on her behalf that the process by which the decision that the applicant lacks credibility was reached is faulty and that accordingly the applicant is entitled to the relief sought.

6 Another significant factor in this case is the fact, which is not disputed, that prior to her flight to this country the applicant had been raped on a single occasion by a person in whose charge she was placed after her parents disappeared. The circumstances of that disappearance do not matter at this stage. A Social Worker gave evidence on her behalf as to the likely effects of this rape on her psychological and mental state, and how that might affect the applicant in relation especially as to how she could recall and recount events leading up to her arrival in this country. It is complained by the applicant that the Tribunal Member totally failed to have any regard to this evidence in arriving at her negative credibility finding since there is no mention at all in the Decision of that Member of that particular evidence.

7 It is also contended that the Tribunal member arrived at the conclusion that the applicant was not credible, solely by reference to the fact that in the separate application by the applicant's mother, there was a negative credibility...