J. v D. v v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 27 January 2015
• Neutral Citation: [2015] IEHC 56
• Court: High Court
• Docket Number: [1096 JR/2010]
• Date: 27 January 2015

[2015] IEHC 56

THE HIGH COURT

[1096 JR/2010]

[No. 1096 J.R./2010] and

[No. 1097/2010]

V (J) & v (D)(A Minor) v Refugee Appeals Tribunal & Ors

No Redaction Needed

JUDICIAL REVIEW

BETWEEN

J. V. D. V. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND J. V.),

D. V. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND J. V.)

APPLICANTS

AND

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

RESPONDENTS

Immigration and Asylum - Refugee Act 1996 – Refugee Status – Appeal – Judicial Review

Facts: The applicants in this judicial review hearing sought an order of certiorari of a decision of the Refugee Appeals Tribunal refusing their claim for refugee status. The first and second named applicants claimed asylum upon their arrival in Ireland but the third named applicant was born in Ireland. All three applicants claimed refugee status based on religious persecution. The first and second named applicants appealed the Commissioner”s recommendation to the Refugee Appeals Tribunal. The two appeals were heard together and the Tribunal made a joint decision affirming the recommendation of the commissioner that all three applicants not be declared refugees. The applicants challenged the decision on a number of grounds. Firstly, the tribunal member failed to assess the facts in accordance with the Refugee Act 1996 or the UNHR Handbook. Secondly, the tribunal erred in law and breached fair procedures in the way they reached their adverse credibility findings. Thirdly, that the country of origin information was not dealt with properly. Lastly, that the tribunal member”s decision was biased.

Held by Faherty J: The court was satisfied that the applicants did not establish that the tribunal”s decision was biased. There was no evidence of any external factors that could have given rise to actual or objective bias. In relation to the applicants second and third grounds, the court was not satisfied that the first named applicant”s evidence regarding her core claim had been properly considered. The tribunal member”s failure to consider all relevant aspects of the claim affected the tribunal”s conclusion that the first named applicant”s fears were unreasonable. In relation to the adverse credibility finding regarding the failure to look for the applicant”s other children, the court accepted this potentially tempered the view adopted by the tribunal member. However, this was not the sole issue to be considered in these proceedings, and even if it was it was this not sufficient to impugn the decision.

The court held that the Tribunal member should have set out credibility issues clearly before addressing the unreasonableness of the applicant”s fear. The court adopted the principle from relevant case law that a tribunal must assess the applicant”s credibility and make a clear finding on the matter. The tribunal had failed to do this in relation to the first named applicant. The court found that the tribunal member erred to such an extent that it affected the tribunal”s decision.

In the courts view, just because the tribunal”s decision did not cite every piece of country of origin information did not mean that it had not been considered. The court held that the tribunal member had taken account of the information and weighted it accordingly. For this reason, the court was also satisfied that the tribunal member had given due consideration as to whether the applicants might suffer persecution in the future.

The court made an order to quash the tribunal”s decision and remit the matter for consideration by a different member of the Refugee Appeals Tribunal. The court granted the order because the decision maker failed to make a clear finding on credibility and failed to consider relevant evidence.

1 Judgment of Ms. Justice Faherty delivered on the 27th day of January 2015

2 1. This is a telescoped hearing for judicial review where the applicants seek, inter alia, an order of certiorari of a decision of the Refugee Appeals Tribunal refusing their claim for refugee status.

3 2. The first and second named applicants arrived in Ireland on the 9 ^th November 2007 and claimed asylum on that date. The third named applicant was born in Ireland on the 23 ^rd June 2008 and an application for asylum was made on his behalf on the 23 ^rd March 2009. All three applicants claim refugee status based on claimed religious persecution.

Background

4 3. In summary, the first named applicant's account of the events which led her to seek refugee status is as follows:

5 The first named applicant was born in Niger in 1975 and lived in southern Niger all her life. She attended primary school for six years and secondary/commercial school for two years. As of the beginning of October 2007, the applicant, who is unmarried, resided with her four children, her parents and siblings in southern Niger. The applicant and her family were Christian and lived in a predominantly Muslim country. According to information given by the first named applicant in the course of her s. 11 interview, there was a religious and political crisis in Niger and rebels were "killing people". In her Questionnaire, the first named applicant claimed to have a fear of persecution on religious and political grounds. She claimed that an incident on the 2 ^nd October 2007, namely an attack by rebels on her as a Christian, was the trigger for her leaving Niger. The circumstances of that incident are referred to elsewhere in this judgment. According to the first named applicant, she and the second named applicant made their escape by running into the bush where they remained for a week. During this time, the first named applicant met a pastor from her church who said he would help her and who arranged for her to leave Niger with her son. The first named applicant believed she and her son departed Niger on the 7 ^th October 2007 and after a month on a ship, arrived in Ireland in November 2007.

Procedural history

6 4. In a report dated the 12 ^th March 2008 the Refugee Applications Commissioner refused the first and second named applicants asylum claim, in the first instance not being satisfied that the first named was from Niger and on the basis of a number of adverse credibility findings, followed by further findings with respect to the availability of State protection and internal relocation in Niger. In a report dated the 5 ^th June 2009, the Commissioner rejected the third named applicant's application on the basis, inter alia, that "the applicant's mother's testimony on his behalf wassubjective throughout and lacked objective basis" and "it has been established that there are discrepancies in the applicant's account which would undermine the credibility of the claim". The Commissioner found "the applicant's mother has not satisfied the examiner that her child would be persecuted in the future in Niger due to religious beliefs given the statements produced and the subjective nature of her testimony". Further, the Commissioner found "the applicant's mother has not established either State protection or internal relocation were not viable options for her and her child."

7 5. The first and second named applicants appealed the Commissioner's recommendation to the Refugee Appeals Tribunal on the 30 ^th April 2008 and the third named applicant's appeal was lodged on the 13 ^th July 2009.

8 6. The two appeals were heard on the 28 ^th April 2010 and a joint decision (dated 9 ^th July 2010) issued on the 15 ^th July 2010 affirming the recommendation of the Commissioner in all cases that the applicants not be declared refugees. The overall assessment with regard to the first named applicant was as follows:

9 …, I have concluded that the first applicant was not a credible witness in relation to her alleged subjective fear of persecution or in her recounting of the events that led to her coming to this country."

The challenge to the Tribunal's Decision

10 7. The decision is challenged on the following grounds.

11 1. The Tribunal Member failed to perform her function of assessment of the facts in accordance with the Refugee Act 1996 or the UNHCR Handbook and/or S.I. 518 of 2006.

12 2. The Tribunal erred in law and acted in breach of fair procedures the manner in which adverse credibility findings were arrived at.

13 3. Country of origin information was not dealt with properly.

14 4. The Tribunal Member's decision is vitiated by the presence of bias.

15 8. I propose firstly to deal with the allegation of bias.

16 9. The Tribunal Member's s.6 analysis comprises some 21 paragraphs. Seven of these deal with the Tribunal Member's view of a confrontation which took place between the Tribunal Member and the then counsel for the applicants at the commencement of the oral hearing. This confrontation had its genesis in the question of whether or not the first named applicant required an interpreter. Ultimately, it became clear that no interpreter was required and the hearing commenced. In the course of her decision the Tribunal Member noted, inter alia:-

"In several years acting as a member of the Refugee Appeals Tribunal, I have never encountered behaviour of this kind during an oral hearing. I am recording the fact of this behaviour not because of any wish to criticise or censure counsel for the applicants but rather so that the applicants can be assured that the behaviour of their counsel has not in any way influenced my assessment of the merits of their appeal. I am very aware of my obligations and duties as a member of the Refugee Tribunal. Accordingly, I wish to formally state for the record that I have in no way allowed the behaviour of counsel for the applicants to affect my consideration, assessment or determination of the applicant's case."

17 10. In their written...