M.A.A. (A Minor) v Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Mr. Justice Eagar |
| Judgment Date | 17 December 2015 |
| Neutral Citation | [2015] IEHC 853 |
| Docket Number | [2012 No. 226 J.R.] |
| Court | High Court |
| Date | 17 December 2015 |
[2015] IEHC 853
[2012 No. 226 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Asylum, Immigration & Nationality – Appeal against the decision of the Refugee Appeals Tribunal – Certiorari – Assessment of evidence – Irreversible medical condition of child – Fear of persecution – Best interests of child – Reg. 5 of the European Communities (Eligibility for Protection) Regulations 2006
Facts: The minor applicant through her mother sought an order of certiorari for quashing the decision of the respondent affirming the determination of the Refugee Applications Commissioner that the applicant not be declared a refugee. The mother of the applicant contended that the applicant would be at risk of severe persecution in the country of origin being a member of a particular social group comprising children having serious medical condition who were treated as witches and forced to undergo female genital mutilation. The mother of the applicant contended that the respondent had failed to assess the medical evidence of the applicant in the light of available country of origin information in relation to the treatment of the children suffering from grave/serious medical ailments.
Mr. Justice Eagar granted an order of certiorari to the applicant and thereby quashed the decision of the respondent and remitted the matter to the respondent for reconsideration by its separate member. The Court held that the respondent had not adequately weighed the medical evidence in the light of the available country of origin information highlighting persecution of children with severe disability. The Court observed that the respondent had erred in making an opinion in relation to the well being of the applicant by merely physically observing her and not asking for the detailed report from the consultant paediatrician.
This is a telescoped application for an order of certiorari in respect of the Refugee Appeals Tribunal (hereinafter referred to as ‘the Tribunal’) to affirm the decision of the Refugee Applications Commissioner (hereinafter referred to as ‘the Commissioner’) that the applicant not be declared a refugee.
The relief sought is as follows:
a. An order of certiorari quashing the decision of the respondent dated the 24th February, 2012, as notified by letter of 1st March, 2012, affirming the recommendation of the Commission that the applicant should not be declared to be a refugee.
The grounds upon which relief is sought are:
a. The Tribunal erred in law and in fact and applied an incorrect standard of proof in holding that on the evidence before it, including the medical evidence, family circumstances of the applicant and the country information, the Tribunal is not convinced that the applicant is at risk of being branded a witch in Nigeria on account of her having Hirschsprungs Disease.
The finding of the Tribunal in the impugned decision, is not supported by the medical and photographic evidence submitted concerning the applicant's disease when considered in light of the objective country information before the Tribunal which expressly noted that children with swollen bellies are at risk of being accused of witchcraft and also that children from broken families are at greater risk of being branded witches. The Tribunal member adopted a standard a standard of proof that required her to be “convinced” that the applicant would be vulnerable to being branded a witch as opposed to considering whether there is a reasonable degree of likelihood that the applicant is at risk of being branded a witch. The Tribunal imputed a requirement that the applicant suffer “constant” abdominal distention in order to be vulnerable to being branded a witch without having regard to the reasonable likelihood that changes in her physical appearance may increase the risk she faces of being branded a witch as opposed to negating it.
b. The Tribunal member acted in breach of fair procedures and contrary to the applicant's best interests as a minor in failing to take appropriate steps to address any doubts she had concerning the past, current or future manifestation of the applicant's medical condition or with respect to he medical reports before her and in failing to satisfy herself by way of further inquiries, including the obtaining of an alternative expert report, that there is no reasonable likelihood that the applicant may be branded a witch in Nigeria by reason of her medical condition, including in circumstances that her condition were to deteriorate or not be controlled in Nigeria.
The Tribunal member had photographic evidence and a medical report confirming the severe and intermittent nature of the abdominal distention the applicant suffers on account of her disease. Nevertheless, the Tribunal member placed undue emphasis on the presentation of the applicant on the one occasion the Tribunal observed her without any or any due regard for the explanation given by the applicant's mother as to why the applicant's abdomen was not distended on that occasion. Given the gravity of the matters in question and the best interests of the minor applicant, the Tribunal was obliged to obtain her own independent medical report to clarify her understanding of the nature and manifestation of the applicant's medical condition. The Tribunal member expressly stated that the applicant may benefit from remaining in Ireland to have access to health care as supported by her medical reports and also accepted that there may have been problems with the provision of medical services to patients in Nigeria. However, the Tribunal relied on a US health report stating that the disease is controllable in the long term without having any regard for whether the same prognosis can apply for a person living in Nigeria where the medical treatment is unlikely to be as accessible and of the same quality.
c. The Tribunal member erred in law and in fact in her assessment of whether the applicant, in relation to her fear of being branded a witch in Nigeria, is at risk of treatment amounting to persecution in that the Tribunal member has applied an incorrect test for persecution and/or has reached conclusions which are unreasonable and are vitiated by material error of fact in the failure of the Tribunal member to fairly and thoroughly consider all manifestations of the treatment suffered by children accused of witchcraft in Nigeria and in the failure of the Tribunal member to have due regard for the impact of the accumulation of measures faced by the applicant from the perspective of the applicant who is a minor. The Tribunal member erred in finding that such treatment does not amount to persecution.
The country information before the Tribunal evidenced that children accused of witchcraft in Nigeria are at risk of being tortured, abused, abandoned and even killed as a result of the stigma and persecution they face and as a result of exorcism and similar activities they can be subjected to. The country information also noted that it was extremely difficult for children with disabilities to complete primary education.
d. Having regard to the evidence before the Tribunal, including the applicant's family's own personal experiences and country information submitted, the Tribunal erred in law and in fact, and applied an incorrect test for state protection, in assessing the applicant's fear of persecution, comprising sexual violence, on account of her membership of the particular social group comprising female children.
The Tribunal's findings in the impugned decision are not supported by country information before it which described the incidence of rape and gender based violence in Nigeria as endemic, widespread and shrouded by an entrenched culture of impunity and the Tribunal member was incorrect to say there is no evidence of “arbitrary” rape by the authorities of women and girls in Nigeria. The Tribunal member imputed a requirement that there be a complete breakdown of State apparatus in Nigeria as opposed to considering and assessing the appropriate question which is whether the State authorities in Nigeria are unwilling or unable to provide adequate protection from the specific form of persecution feared by the applicant, in this case rape and sexual violence.
The statement of grounds was grounded in the affidavit of mother of the applicant, A.A., sworn on the 23rd February, 2012. She swears that she is the mother and guardian of the minor applicant herein and affirms the belief that the decision of the respondent affirming the recommendation of the Commission that her daughter should not be declared a refugee is unlawful.
She avers that her daughter was born in the State on the 1st October, 2009, although she is not an Irish citizen. Soon after her birth she was diagnosed with a life-long irreversible condition called Hirschsprungs Disease. As a result she had surgery when still an infant and requires on-going specialist paediatric care to manage the disease. As a result she had surgery when still an infant and requires on-going specialist paediatric care to manage the disease. At present in Ireland, where the disease is controlled as best as possible and where her daughter has the benefit of proper specialist health care and access to the specialist diet and medication required, her daughter still needs her assistance, using a special instrument, to have a bowel motion. Whenever she has not had a significant bowel movement, her abdomen becomes physically distended with causes her great discomfort...
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