J (M T) v Min for Justice & Refugee Appeals Tribunal
|Mr. Justice Birmingham
|17 April 2008
| IEHC 102
|17 April 2008
|RECORD NO. No. 784 JR\2006
 IEHC 102
THE HIGH COURT
Fair procedures - Assessment of credibility - Age assessment procedures - Whether invalid age assessment having material and practical effect upon assessment of credibility by Tribunal - Whether substantial grounds for contending that decision invalid - Moke v Refugee Applications Commissioner  IEHC 317 (Unrep, Finlay Geoghegan J, 6/10/2005) applied; GK v Minister for Justice considered - Leave to seek judicial review refused (2006/784JR - Birmingham J -17/4/2008)  IEHC 102
J (M T) v Minister for Justice
Facts: The applicant from Liberia and mother of a young infant sought to review a decision of the respondent refusing her refugee status. The applicant disputed the adverse findings made by the respondent with respect to her credibility and that account should have been take of her vulnerability. An issue arose as to her age and her date of birth. The applicant had been treated as an adult by the respondent. The country of origin information was disputed in respect of the situation existing in Liberia.
Held by Birmingham J. in refusing the reliefs sought, that no basis existed for judicial review proceedings. The situation as to Liberia was complex. A considerable amount of information was put before the Tribunal. The applicant would have an opportunity to make representations in the event of a deportation.
REFUGEE ACT 1996 S11
MOKE v REFUGEE APPLICATIONS COMMISSIONER UNREP FINLAY GEOGHEGAN 6.10.2005 2005/39/8126 2005 IEHC 317
ODUNBAKU & O'MAHONY v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP CLARKE 1.2.2006 2006/45/9707 2006 IEHC 28
K (G) & ORS v MIN JUSTICE 2001/13/3557
BANZUZI v REFUGEE APPEALS TRIBUNAL & ORS UNREP FEENEY 18.1.2007 2007 IEHC 2
1.1 The applicant states that she is Liberian born and gives her date of birth as the 16th June, 1987. She is the mother of a young daughter, who was born in the State on the 4th January, 2005. Ms Johnson is seeking asylum in the State. Her application has been processed through the system in the usual way. On the 16th May, 2006 the member of the Refugee Appeals Tribunal (RAT) to whom the appeal in this case was assigned issued a decision which affirmed the recommendation of ORAC that the applicant not be declared a refugee.
1.2 By way of general background, it should be explained that the case put forward by the applicant is that members of her family were killed by forces supporting Charles Taylor during the Liberian civil war at a time when she was aged three years approximately. She was brought by an uncle to Nigeria and her childhood was spent as a displaced person in a refugee camp.
3.1 She states that when she was approximately 13 years old she was given or sold to a local chieftain as a domestic servant. Thereafter she was the victim of very serious sexual and physical abuse by him over a four year period. In May, 2004, she escaped with the assistance of the chief's son who had become her boyfriend and had promised to marry her and came to Ireland. The case is that she could not return and cannot be returned to Liberia because of the risks posed to her from Ex Combatants, those who had killed her family members and particularly given her status as a young single woman and the mother of an infant.
4.1 The claim was rejected by the Tribunal Member who did not regard her account as credible. The basis of the challenge relates to how the issue of credibility was approached and the conclusion reached in relation to credibility.
4.2 In particular it is said the decision is flawed because the Tribunal Member did not take into account in assessing credibility and in considering how the evidence had been given, the very particularly vulnerable status of the applicant.
4.3 It is in this context that the applicant's stated date of birth becomes particularly relevant. The applicant arrived unaccompanied in the State in November, 2004. Accordingly, on the basis of her claimed date of birth she was an unaccompanied minor aged approximately 17 and half years when she arrived in the State.
4.4 The claimed date of birth became the subject of controversy and an age assessment interview was conducted on the 22nd November, 2004 by the officials of ORAC who concluded that the applicant was an adult and not a minor, commenting that they reached that conclusion on the basis of her physical appearance and level of maturity.
4.5 This conclusion has significant implications for how her application was treated. Because of the conclusion reached in relation to her age, she was now treated as an adult. In practical terms this meant that she was housed in an adult hostel, was not provided with assistance by the HSE and did not have the services of a social worker and was not provided with the services of a solicitor for the section 11 interview.
4.6 The conclusion that she was not a minor is criticised. It is pointed out that the procedures followed during the age assessment process did not accord with the procedure recommended by Finlay Geoghegan J. in Moke v. RAC, 6th October, 2005. Certainly, it seems the procedure followed did not comply with what was identified as minimum procedural requirements in that case. In particular it does not appear that the applicant was told in simple terms why the interviewers felt that her claimed date of birth might be a false one. Equally, it does not appear that she was told the reason for the adverse decision, nor was she told of the possibility of a reassessment. In fairness to the officials, their interview was conducted well before the decision in Moke became available.
4.7 However, that decision has never been challenged by way of judicial review. It must be said that initially the applicant found herself in something of a catch twenty-two situation in that the Refugee Legal Services (RLS) felt precluded from initiating judicial review proceedings because the applicant was claiming to be a minor. On the other hand, it may be noted on the basis of her claimed date of birth she would have attained her majority on the 16th June, 2005 and thereafter there was nothing to preclude a challenge.
4.8 It will be noted that the RAT hearing took place on the 19th September, 2005 by which stage there was no controversy that the applicant was an adult.
4.9 While the conclusion that she was older than her stated date of birth was not challenged formally in judicial review proceedings, the fact that she was processed as being of full age was raised as a significant issue in the notice of appeal to the RAT. The decision of the RAT does not deal specifically with the age issue and there is no specific comment whether her age was considered a factor in assessing her evidence. This is criticised by Mr O'Dwyer, counsel on behalf of the applicant who points out that the RAT decision refers to information provided by the applicant when on her own account she was still a minor, hi that regard the only specific finding arising from information clearly provided before June, 2005 relates to the fact that during the RAT hearing she is recorded as saying that she had stated in the ASY1 Form that she belonged to the "Bassa Ethnic Group" and that she knew her ethnic origin on arrival in Ireland when in fact on the AS Yl Form she had stated that she did not her ethnic origin.
4.10 Assuming, though not deciding that the conclusion in relation to age was incorrect, which I regard as the prudent course given the deficiencies in the procedures followed during the assessment, it would appear from Moke as was pointed out by Clarke J. in Odunbaku, 1st February, 2006 that the mere fact that there had been an invalid age assessment does not, of itself, necessarily lead to the conclusion that subsequent decisions made in the refugee process are invalid. In that case Clarke J. commented at paragraph...
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