Kikumbi and Another v Refugee Applications Commission and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 07 February 2007
• Neutral Citation: [2007] IEHC 11
• Court: High Court
• Docket Number: [No. 462 JR/2005]
• Date: 07 February 2007

KIKUMBI v REFUGEE APPLICATIONS COMMISISIONER & MINISTER FOR JUSTICE

Judicial Review

Between

Olga Kikumbi and Ilunga Kikumbi

Applicants

and

the Office of the Refugee Applications Commissioner the Minister for Justice, Equality and Law Reform

Respondents

and

the Refugee Appeals Tribunal

Notice Party

[2007] IEHC 11

[No. 462 JR/2005]

The high court

IMMIGRATION

Asylum

Application for asylum - Refugee Applications Commissioner - Assessment of credibility - Country of origin information - Mistake of fact - Whether mistake material - Whether adequate reasons for decision given - Whether sufficient evidence to base conclusions - ABM v Minister for Justice (Unrep, O'Donovan J, 23/7/2001), Da Silveira v Refugee Appeals Tribunal (Unrep, Peart J, 9/7/2004), Carciu v Refugee Appeals Tribunal (Unrep, Finlay Geoghegan J, 4/7/2003), FP and AL v Minister for Justice [2002] 1 IR 164 followed; Traore v Minister for Justice (Unrep, Finlay Geoghegan J, 4/5/2004) distinguished - Relief refused (2005/462JR - Herbert J - 7/2/2007) [2007] IEHC 11

K(O) v Refugee Applications Commissioner

The applicants sought an order of certiorari by way of an application for judicial review quashing the decision of the first named respondent refusing to grant them refugee status. The applicants alleged that the respondent erred in law and/or in fact in her evaluation of the country of origin information and the assessment of the applicants’ credibility. It was also alleged that the first named respondent failed to provide any/any adequate reasons for her decision and further that the decision was unreasonable and/or irrational.

Held by Herbert J. in dismissing the application: That the mistake of fact made by the respondent was not material to or of significant importance to her conclusion so as to invalidate her conclusion regarding the applicants’ credibility. The decision of the respondent clearly demonstrated that she had carefully considered and examined the accounts provided by the applicants and it was reasonable and rational for the respondent to reach the conclusions she did regarding the accounts furnished by the applicants. The respondent indicated sufficiently the reasons for her negative findings against the applicants.

Reporter: L.O’S.

Mr. Justice Herbert

1 By order of this court (Butler, J.), made of 2nd February 2006, the Applicants were given leave to seek an Order of Certiorari by way of Judicial Review, upon the following grounds:-

2 i "(ii) In assessing the Applicants” claim for asylum the First Named

3 Respondent her servants or agents have erred in law and/or fact and/or in a combination of law and fact, and dealt with the application in a manner which was in breach of the principles of natural and constitutional justice, and was, in all the circumstances unreasonable and/or irrational.

4 (iii) The First Named Respondent identifies three main grounds for her not being satisfied that the Applicants are not refugees within the meaning of s. 2 of the Refugee Act1996. Two of these grounds relate to a purported lack of credibility and/or plausibility of the Applicants particularly in the light of country of origin information. The First Named Respondent has erred in fact and/or law and/or acted in breach of the principles of natural and constitutional justice in the evaluation of country of origin information and the assessment of the Applicants” credibility in the context of said country of origin information. These errors are such as to render the decision fundamentally flawed.

5 (iv) In particular the First Named Respondent, her servants or agents states that there may be doubts as to whether the Applicants and their family moved from Bunia to Fataki in April 2003. The First Named Applicant stated was done because of the troubles and the Second Named Respondent stated this was done when the trouble became more serious in Bunia. The First Named Respondent states that country of origin information indicates that a major battle for Bunia broke out in May 2003. The First Named Respondent states that it is questionable that the Second Named Applicant would relocate to Fataki, the main town in the Ituri District where she asserted the conflict was. The First Named Respondent has erred in fact in finding that the main town in the Ituri District was Fataki; the country of origin information clearly states the Bunia is the main town. This error of fact is clearly material to the assessment of credibility of the Applicants and thus renders the decision fundamentally flawed.

6 (v) Further the First Named Respondent errs in casting doubt on the Applicants” statement that they moved to Bunia in April 2003 by stating that country of origin information indicates that a major battle for Bunia broke out in May 2003. However the Second Named Applicant expressly stated that they moved when the trouble in Bunia became more serious and the country of origin information clearly indicates that tensions had existed in the region for a number of years. Therefore it is entirely plausible and consistent with country of origin information that the Applicants moved when they stated they did. The First Named Respondent has erred in over-interpreting the country of origin information this way to support a finding of lack of credibility and has failed properly to assess the Applicants” claim in this regard.

7 (vi) The First Named Respondent also found that the Applicants” overall credibility was undermined due to their claim to have removed to Fataki when they were members of the Lendu Ethnic Group. The First Named Respondent states that country of origin information indicates that Fataki was under the control of militia composed mainly of members of the opposing Herna tribe, and thus serious doubts must exist about the Applicants” claim that they moved to Fataki. This finding is flawed in a number of respects. First, the various country of origin information referred to by the first named respondent is at best unclear as to the issue of who controlled the Fataki region at this time. The First Named Respondent has erred in law and/or in fact in failing to take account of this material which supports the Applicants” claim and/or in failing to give reasons as to why she preferred one source of country of origin information over another. Secondly, one of the sources relied on by the First Named Respondent as setting out this factual material does not in fact refer to the issue at all. The First Named Respondent has erred in fact and/or in law in failing to consider the country of origin information properly and these errors have resulted in a failure to assess properly the Applicants” credibility. As credibility is central to the negative decisions made against the Applicants these errors render the decisions fundamentally flawed.

8 (vii) The First Named Respondent also rejects the Applicants” claim on the grounds that there are doubts as to the Applicant's description of what happened in July 2003. The first reason given by the First Named Respondent is that the Applicant's account as to how they escaped from their home is not credible. No reason is given as to why the First Named Respondent makes such a finding. This finding is a matter of pure conjecture on the part of the First Named Respondent and the First Named Respondent gives no reason for not giving the Applicants the benefit of the doubt in relation to their evidence in this regard.

9 (viii) The First Named Respondent also states that it is questionable that the Applicant's family, a Lendu family, were attacked while the family of a friend, also a Lendu was not. The First Named Respondent gives no reason for such a finding. The first named respondent also gives no or no substantial reason for the finding that the account of what happened when they arrived at their friend's house was not credible. The First Named Respondent has erred in law in failing to give reasons for her findings and in failing to the give the Applicants the benefit of the doubt in relation to their evidence in this regard.

10 (ix) The First Named Respondent also states the Applicant's account of what happened on 18th July 2003, is not plausible and undermines the overall credibility of their claim and relies on country of origin information that indicates that in July and August 2003 ethnic Lendu attacked Fataki. However, this country of origin information supports rather than undermines the Applicant's claim as the evidence given by the Applicants is that they were targeted by Hema who blamed them, as Lendu for the attacks on the area. The First Named Respondent has therefore failed to asses the country of origin information correctly and thus has failed properly to assess the credibility of the Applicants in the light of this country of origin information. The assessment of the Applicant's credibility was integral to the First Named Respondent in her decision as to entitlement to refugee status and thus the errors made in this regard render her decision invalid.

11 Grounds (ii) and (iii) are merely general statements that the first named respondent erred in fact and additionally or alternatively in law and, additionally or alternatively acted in breach of the principles of natural and constitutional justice in assessing the country of origin information and in assessing the credibility of the Applicants in the context of that information. Ground (iv) constitutes the first specific ground of complaint. I propose in the course of this judgment to follow the sequence of the arguments as they were presented to the Court at the hearing of the application.

12 At para. 5.5 of her Report, the Authorised Officer of the first named respondent, concluded that it was questionable that the second named Applicant and her family would re-locate to Fataki, the main town of the Ituri District...