M (M S) & S (N A)(A Minor) v Refugee Appeals Tribunal (Brennan) and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 27 March 2015
• Neutral Citation: [2015] IEHC 237
• Court: High Court
• Date: 27 March 2015

[2015] IEHC 237

THE HIGH COURT

[No. 152 J.R./2011]

M (M S) & S (N A)(A Minor) v Refugee Appeals Tribunal (Brennan) & Ors

No Redaction Needed

JUDICIAL REVIEW

BETWEEN

M. S. M.

AND

N. A. S. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND M. S. M.)

APPLICANTS

AND

OLIVE BRENNAN ACTING AS THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND LAW REFORM, ATTORNEY GENERAL, IRELAND

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

Asylum & Immigration & Nationality – S. 3 (6) of Immigration Act 199 – Subsidiary protection – European Communities (Eligibility for Protection) Regulations 2006 – Credibility of claim – Establishment of nationality – Deportation

Facts: The applicants sought an order of certiorari challenging the determinations of the second named respondent refusing the subsidiary protection to the applicants and determination regarding their applications under s. 3 (6) of the Immigration Act 1999, and the deportation orders made therein. The first named applicant alleged that the second named respondent's refusal to accept that the first named applicant was a Somali national on the basis of a report from the U.K. Border Agency and possession of a Tanzanian passport was flawed as it failed to consider the circumstances under which those passports were obtained.

Ms. Justice Faherty refused to grant an order for quashing the decisions of the second named respondent. The Court held that since the core claim of the first named applicant being a Somali national was rejected owing to linguistic analysis, a valid Tanzanian passport and a report from U.K. Border Agency in the absence of any convincing explanations from the first named applicant, the second named respondent was not bound to establish the nationality of the first named applicant before embarking to initiate the deportation process. The Court found that the second named respondent had discretion to attach weight to any piece of evidence such as the language analysis report in the subject case which was not supportive of the first named applicant's contention that she was a Somalian national. The Court held that it was imperative to establish the nationality of the asylum seeker but not in cases where an asserted claim as to nationality was rejected.

1 JUDGMENT of Ms. Justice Faherty delivered on the 27th day of March 2015

2 1. The present proceedings issued on the 11 ^th February 2011 wherein the applicants sought, inter alia;

3 (i) An order of certiorari by way of application for judicial review quashing the decisions of the first named respondent to affirm the recommendations of the Refugee Appeals Commissioner that the applicants not be declared to be refugees;

4 (ii) An order of certiorari in respect of the determinations of the second named respondent refusing the applicants' applications for subsidiary protection.

5 (iii) An order of certiorari in respect of the second named respondent's determinations of the applicants' applications under s. 3(6) of the Immigration Act 1999 (as amended); and

6 (iv) An order of certiorari of the subsequent decisions to make deportation orders against the applicants.

7 2. By letter dated the 17 ^th October 2014, the applicants' solicitor wrote to the Chief State Solicitors Office to state that the applicants would not be proceeding with their challenge to the decision of the Refugee Appeals Tribunal, and that they would restrict their challenge to the decisions made by the Minister.

8 3. This judgment addresses only the applicants' challenge to the Minister's decision not to grant them subsidiary protection. The applicants' challenges to the determinations regarding their applications under s.3(6) of the Immigration Act 1999, as amended and to the deportation orders made against them stand adjourned.

Background

9 4. The first named applicant arrived in Ireland on the 17 ^th March 2008 and made an application for asylum on the 18 ^th March 2008. The second named applicant is the daughter of the first named applicant and was born in this State on the 14 ^th June 2008. An application for asylum on her behalf was commenced on the 10 ^th July 2008.

10 5. The first named applicant claimed that she was a Somali national of the Bajuni ethnic group and that she lived all of her life on the island of Chula, off the coast of Somalia. She claimed that she and her family endured continuous threats over the years from members of majority clans. The applicant claimed that she and her family were attacked in 2006 and that she suffered a miscarriage as a result of a beating she received and that her brother-in-law was abducted. She claimed that in May 2007 she had an agent to whom she had paid USD 3000 and with whom she travelled to Tanzania to apply for a UK visa. This was done in an attempt to save her and her family's lives. The first named applicant was brought to Dar es Salaam visa processing centre where she was fingerprinted but she maintained that the agent had supplied all the information and no one in the office had asked her questions or to confirm her name while being fingerprinted. After two days, she returned to Chula after the agent went missing without further contacting her. She claimed that in September 2007 both she and her husband were beaten in another major attack after which they left Chula for Yemen. She claimed that her mother and her three children had gone to Yemen approximately one month beforehand. According to the applicant, she remained in Yemen for approximately six months, living with her husband but apart from the rest of her family, before flying from there to Ireland in March 2008 via an unknown country, assisted by an agent and with an EU passport. The first named applicant claimed asylum based on the Convention grounds of "Race" and "Membership of a particular Social Group" and duly made a claim on similar grounds in respect of the second named applicant. The first named applicant's claim was rejected (on grounds of credibility) by the Refugee Applications Commissioner. In summary, the findings were that:

11 · The applicant's name and date of birth on the United Kingdom visa application for which she gave her fingerprints differs from the name and date of birth provided to the Commissioner.

12 · According to the UK visa application, for which the applicant provided her fingerprints, the applicant was a Tanzanian national who had a UK visa issued on her Tanzanian passport.

13 · The applicant had previously stated at interview that she had not left Chula before travelling to Yemen in September 2007 following the second attack.

14 · The applicant decided to return to Chula despite coming to no harm in Tanzania.

15 · The applicant never sought asylum in Yemen despite being there twice.

16 · The applicant never sought asylum in T anzania.

17 · The applicant found it difficult to understand questions that were directly related to Chula island.

18 · The language analysis test which the applicant underwent concluded that she spoke a variety of Swahili found with certainty not in Somalia and with certainty found in Kenya and that she spoke the language to the level of a mother tongue speaker.

19 With regard to the minor applicant, the Commissioner concluded that:

20 · The mother had not provided any evidence of the applicant's nationality in order to substantiate her claim.

21 · The minor applicant's mother failed to establish that she had a well-founded fear of persecution, on this basis, it follows that there was no objective basis to the fear attributed to the applicant by her mother.

22 6. The Refugee Appeals Tribunal rejected (following a papers only appeal) the first named applicant's appeal on the grounds of credibility, finding that:

23 · The applicant had denied that she was ever issued with a passport or that she had ever had a visa to enter another country.

24 · The applicant was known to the United Kingdom authorities under another name, and with a different date of birth, as a Tanzanian national.

25 · The applicant had returned to Chula, the place she claimed to have been attacked and persecuted.

26 · The applicant never sought asylum in Yemen or Tanzania.

27 · The applicant could have obtained medical treatment in Yemen.

28 · The language analysis test, which was considered in light of the applicant's overall testimony, did not support her claim to be a Somali national.

29 · The applicant claimed she had never left the island of Chula prior to the second attack.

30 The Tribunal rejected the second named applicant's oral appeal on the basis that the first named applicant was known to the UK authorities under a different name and as being a Tanzanian national to whom a multi-visits visa had been issued in 2007. Furthermore, it found that her mother, the first named applicant, had lived in Yemen for six months with her children and nothing of consequence had happened to her in that time and that the Yemeni authorities provided automatic refugee status to Somalis who arrived there.

31 7. Following the rejection of their appeals by the Refugee Appeals Tribunal, the applicants were written to by the second named respondent and advised that the second named respondent had accepted the Tribunal's recommendations that the applicants not be afforded refugee status and both were advised that the second named respondent proposed to make deportation orders, pursuant to s. 3 of the Immigration Act, 1999 (as amended). Pursuant to the options given to them, on 26 ^th August 2010 both applicants made application for subsidiary protection pursuant to the European Communities (Eligibility for Protection) Regulations 2006, together with an application for leave to remain under s.3(6) of the Immigration Act, 1999. The grounds of claim for subsidiary protection were largely in line with the claims for refugee...