A.L.M. v Minister for Justice and Equality

 
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[2017] IEHC 730

THE HIGH COURT

JUDICIAL REVIEW

McDermott J.

[2012 No. 322 J.R.]

BETWEEN
A.L.M. (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND S.P.)
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

Asylum, Immigration & Nationality – Rejection of asylum claims – Adverse credibility findings – Nationality of child – Serious harm

JUDGMENT of Mr. Justice McDermott delivered on the 1st day of December, 2017
1

The applicant was granted leave to apply for judicial review for an order of certiorari of a decision of the Minister for Justice, Equality and Law Reform (hereinafter ‘the Minister’) dated 10th January, 2012 which refused to grant the applicant subsidiary protection. The application was grounded on the affidavit of the applicant's mother sworn on 10th April, 2012. The applicant was born on 27th March, 2010 at University College Hospital Galway to S.P. and T.M. It was claimed that she was a national of Sierra Leone or Rwanda.

A.L.M's Application for Refugee Status
2

An application for refugee status was made on her behalf on the 12th May 2010. It was based entirely upon the same grounds as those advanced by her parents in respect of their applications for refugee status. Her father T.M. claimed to be a national of Rwanda, her mother S.P was a national of Sierra Leone. The applicant's claim for asylum was based on her parents' respective claims for asylum. T.M claimed that it was unsafe for him to return to Rwanda due to racial tensions between the Tutsi and Hutu. T.M. claimed to be Tutsi and that his family had been victims of persecution in Rwanda. He claimed that it was not safe for his wife S.P. to return to her country of origin Sierra Leone due to racial tensions.

3

S.P. arrived in the State in August 2006. Shortly after her arrival she gave birth on 10th September 2006 to a son. She applied for asylum which was refused following a negative recommendation affirmed by the Refugee Appeals Tribunal on the 15th June 2009 after an oral hearing. She then applied for subsidiary protection and leave to remain in the State under s.3 of the Immigration Act 1999 on the 14th August 2009. Both applications were refused. The ‘determination of application’ for subsidiary protection in her case included a negative finding on her credibility and quoted the negative findings of credibility in the Tribunal decision. She was informed of the refusal of her application for subsidiary protection on 25th February 2011. A deportation order was made against her on the 2nd March 2011.

4

T.M. arrived in the State on the 29th April 2007 from Nigeria via Paris. He applied for asylum. The application was rejected following an oral hearing by RAT on 15th September 2008. He then made an application for subsidiary protection and leave to remain in the State under s.3 of the 1991 Act on 21st November 2008. The subsidiary protection application was refused on 17th July 2012 based on a “determination of application” which included a reference to the finding of the RAT that his claim had not been found to be credible. He was informed by letter dated 8th March 2012 that the Minister intended to process his applications on the basis that he was a Nigerian national. A deportation order was made against him on the 15th August 2012. During his time in Ireland he and S.P. formed a relationship and their daughter, A.L.M. was born on the 27th March 2010. The child's application for refugee status was initiated on the 12th May.

5

Both parents attended the s. 11 interview in respect of the child applicant's claim on 8th June, 2010. At this time both parents had been refused refugee status by the Refugee Appeals Tribunal at the conclusion of separate applications and had initiated their applications for subsidiary protection and under s. 3 for leave to remain in the State.

6

T.M. informed the interviewer that he feared that his daughter would be targeted in Rwanda because of his Tutsi ethnicity. His parents had been killed during the genocide conducted in Rwanda by the Hutu against the Tutsi. He feared that she would be killed as were his parents. It was pointed out to him that UNCHR were helping Rwandan nationals living as refugees in other countries neighbouring Rwanda to return to their homes. Nevertheless, T.M. feared for his daughter if she were returned.

7

S.P. was asked about her fear of persecution if returned to Sierra Leone. She had claimed asylum based firstly on her claim that she had, as a child, been kidnapped by a rebel militia and forced to train as a child soldier following an attack upon her village in which her parents were killed. She was detained for three weeks. She claimed that she was beaten and raped during this period. She then escaped and walked to her uncle's house where she remained for four years. The RAT did not accept the credibility of her account and concluded inter alia that since she was able to live for a long period in a nearby village with her uncle her account (even if true) could not be regarded as the basis for an alleged fear of persecution.

8

The facts upon which S.P. mainly relied in her own case arose from her fear that she, a Christian, would be forced by her uncle to convert to Islam and marry a Muslim who had given money to him as a dowry. She claimed that when she refused to convert, be circumcised and marry this man she was beaten.

9

The applicant left her uncle's house and went to live with a female friend in Koidu about forty minutes by bus from her uncle's village for about two months. She met a young man who became her boyfriend in 2003.

10

She had no further contact with her uncle. However, she described an occasion in November 2004 when two men dressed as women accosted her. She alleges that they and two others kidnapped her at gun-point, took her to a forest and raped her. She said she was tied to a tree and told if she did not marry the man chosen by her uncle she would be killed. Her attackers were then chased away by a local farmer who took her to his home and looked after her. She remained there for seven days. She said they left behind a camera upon which they had recorded what they had done for her uncle. She retained the original photographs developed from the camera and gave the police photocopies. She threw the camera away after she had the photographs printed.

11

S.P. then went to live at her boyfriend's house in Kambia (five hours from her uncle's home) where she lived for one year and five months i.e. from November 2004 to April/May 2006. In February 2006 her uncle came upon her in the local market place and assaulted her. He wanted to force her to go back home with him. He allegedly started to beat her but she escaped.

12

She continued to live with her boyfriend who owned two farms. After this assault he sold one of his farms to pay a woman to take her out of the country. She was pregnant at this stage. He did not intend to sell his other farm and follow her. She heard that after she came to Ireland her boyfriend had been stabbed to death and she suspected that her uncle was involved. A document purporting to be his death certificate was produced which did not indicate a cause of death and recorded it as having occurred on the 26th October 2006. She was scared that her uncle would injure her daughter. She feared that she would be coerced into marriage. The Tribunal in her case did not accept that her account was credible. In her child's appeal hearing at the Tribunal she expressed the fear that if A.L.M. returned to Sierra Leone she would face similar pressures to covert, undergo Female Genital Mutilation and be subjected to a forced marriage.

13

ORAC recommended that the child applicant should not be accorded refugee status. The matter was appealed to the Refugee Appeals Tribunal.

14

At the appeal hearing S.P. indicated that she was not married to T.M. They met in a hostel in Sligo. She had not heard from her uncle since she left Sierra Leone and was not aware whether he was dead or alive. Her uncle was a farmer in Kono Village which was a good distance from Freetown, where she resided before arriving in the State. She did not return to the Police between 2004 and 2006 concerning the attack upon her in 2004. The Tribunal in her own case found these aspects of S.P.'s evidence incredible. Even if true, the Tribunal was satisfied that there was no well- founded fear of persecution because the issues relied upon could have been addressed safely within Sierra Leone. As will be seen below the credibility issues were compounded by later information which became available to the respondent from the UK Border Agency and are referred to in the assessment made in the subsidiary protection determination.

15

T.M. outlined that he had lost his parents in the genocide in Rwanda. He claimed that his family were Tutsi. He had been brought to live in Nigeria at the age of four. He was abandoned by his foster family when his foster father died. He was unaware of the current position in Rwanda. He believed that if he were to return the infant child would be imprisoned and there would be no one to protect her. She would have no where to live. He believed that the Tutsi genocide was still continuing in Rwanda and that the police in Rwanda would harm her. He stated that he could not go to Nigeria with the applicant as the Nigerian Police would require him to steal for them. He said he was a Muslim and the applicant was also a Muslim. It was pointed out to T.M. that the...

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