M (N.F) (Minor) v Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | MR JUSTICE HEDIGAN |
| Judgment Date | 21 November 2008 |
| Neutral Citation | [2008] IEHC 363 |
| Judgment citation (vLex) | [2008] 11 JIC 1106 |
| Court | High Court |
| Date | 21 November 2008 |
[2008] IEHC 363
THE HIGH COURT
BETWEEN
AND
REFUGEE ACT 1996 S13
REFUGEE ACT 1996 S16(8)
OLATUNJI v REFUGEE APPEALS TRIBUNAL (TAIT) & MIN FOR JUSTICE UNREP HIGH FINLAY-GEOGHEGAN 7.4.2006 2006/46/9904
IMOH & OKORO v REFUGEE APPEALS TRIBUNAL (BRENNAN) & MIN FOR JUSTICE UNREP HIGH CLARKE 24.6.2005 2005/31/6393
OKEKE v MIN FOR JUSTICE & ORS UNREP HIGH PEART 17.2.2006 2006/46/9892
S (O) v REFUGEE APPEALS TRIBUNAL UNREP HIGH HEDIGAN 4.11.2008 2008 IEHC 342
A (OA) v REFUGEE APPEALS TRIBUNAL UNREP HIGH FEENEY 9.2.2007 2007/4/605
B (GO) v MIN FOR JUSTICE UNREP HIGH BIRMINGHAM 3.6.2008 2008 IEHC 229
KVARATSKHELIA v REFUGEE APPEALS TRIBUNAL & ANOR UNREP HIGH HERBERT 5.5.2006 2006/33/6983
CANADA (AG) v WARD 1993 2 SCR 689
IMMIGRATION
Asylum
Well founded fear of persecution - Negative credibility findings - Whether genuine subjective fear - Whether flawed assessment of credibility - State protection - Whether Tribunal member relied on country of origin information outside of that submitted with notice of appeal - Whether obliged to disclose to applicants - Mandatory obligation - Whether sufficient evidential basis for decision - Whether immaterial that court agrees with assessment of credibility provided assessment was rational and reasonable and reached in accordance with fair procedures - Presumption of state protection - GOB v Minister for Justice [2008] IEHC 229 (Unrep, Birmingham J, 3/6/2008) applied; Olatunji v Refugee Appeals Tribunal [2006] IEHC 113 (Unrep, Finlay Geoghegan J, 7/4/2006), Imoh v Refugee Appeals Tribunal [2005] IEHC 220 (Unrep, Clarke J, 24/6/2005), Okeke v Minister for Justice [2006] IEHC 46 (Unrep, Peart J, 17/2/2006), OS v Refugee Appeals Tribunal [2008] IEHC 342 (Unrep, Hedigan J, 4/11/2006), OAA v Refugee Appeals Tribunal [2007] IEHC 169 (Unrep, Feeney J, 2/2/2007), Kvaratskhelia v Refugee Appeals Tribunal [2006] IEHC 132 (Unrep, Herbert J, 5/6/2006) and Canada (AG) v Ward [1993] 2 SCR 689 considered - Refugee Act 1996 (No 45), s 16(8) - Relief refused (2006/1096 JR - Hedigan J - 21/11/2008) [2008] IEHC 363
M(NF) v Refugee Appeals Tribunal
Facts: the applicant’s appeal against the recommendation of the Refugee Applications Commissioner that she be refused asylum was refused by the respondent. She applied to quash that decision by way of application for judicial review on the grounds, inter alia, that its conclusions were not based on any objective country of origin information before it and that it was irrational and unreasonable and in breach of fair procedures thereby.
Held by Mr Justice Hedigan in refusing the reliefs sought, 1, that, bearing in mind the established principle that the Court had to be careful not to substitute its own view for that of the respondent and that it was immaterial whether the Court agreed with the assessment of credibility carried out by the respondent provided that the assessment was rational and reasonable, grounded in objective country of origin information and reached in accordance with fair procedures, there was in the country of origin information before the respondent a sufficient evidential basis for the conclusions reached by it in relation to the role of parents with respect to circumcision and tribal marking. The absence of an express reference to the country of origin information did not amount to a breach of fair procedures in circumstances where there was a clear evidential basis for the respondent’s conclusion in the country of origin information before it.
That, in the absence of clear and convincing proof that a State was unable to protect its citizens and absent a complete breakdown of State apparatus, it was to be presumed that State protection was available.
Reporter: P.C.
The applicants are seeking an order of certiorari quashing the decision of the Refugee Appeals Tribunal (RAT), dated 22 nd August, 2006, to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicants should not be declared refugees. Leave was granted to the applicants to seek judicial review by Hanna J. on 29 th May, 2008.
The first named applicant, who is a national of Nigeria, is a Muslim and a member of the Yoruba tribe. She is a sociologist by profession and she ran her own business in Nigeria. She is the mother of the second, third and fourth named applicants, who are also nationals of Nigeria. The second named applicant is now 14 years of age; she was the first named applicant's first-born daughter. Her brothers, the third and fourth named applicants, are now 12 and 6 years of age, respectively.
It is common case that the second named applicant has been circumcised. The first named applicant claims that she lost her second and third daughters in 1999 and 2001, respectively, when, at the age of seven months, circumcision and tribal markings were perpetrated upon them. She says that she reported the first death to the police in 1999, but was told that they could not intervene as it was a family matter and related to the family's cultural beliefs. She also says that in June, 2001, her brother-in-law's wife was killed by her husband's family when she attempted to prevent tribal marks being placed on her children.
The first named applicant says that in October, 2003, the first named applicant's husband was taken away by his family to prepare for the circumcision and tribal marking of his first-born son (the third named applicant) in order to identify his royal lineage; the child was then approaching his seventh birthday. Fearing that what had happened to her daughters would reoccur, the first named applicant sold her business and fled with her children in November, 2003. She says that in December, 2003, she was raped by her husband's friend and two other men. She did not report the rape or her fears in respect of the circumcision and marking of her son to the police; instead, she and her children made arrangements to leave Nigeria.
The applicants arrived in Ireland in January, 2004, and the first named applicant made an application for asylum on their behalf to the Office of the Refugee Applications Commissioner (ORAC). In her ORAC questionnaire she stated that her children's lives were being threatened owing to tribal marks and circumcision, which are compulsory at the age of 7 years for the first male born into her husband's family and which had resulted in the death of two of her baby daughters in the past.
The first named applicant attended for interview with an authorised ORAC officer on 2 nd February, 2004. It is noteworthy that she said (at p.9) that she was not certain what had caused the death of her second daughter, but she thought it was a result of a loss of blood after the circumcision and she said (at p. 10) that the third eldest daughter had died from an infected wound as a result of tribal marking. She also said (at p. 15) that she and her husband were powerless in respect of the circumcision and marking of her daughters, even though neither of them supported the practice, and (at p.25) that she had not sought to prevent the circumcision and marking of her third daughter because she thought her second daughter might have died accidentally. A report was compiled in compliance with section 13 of the Refugee Act 1996, dated 16 th February, 2004, wherein the ORAC officer drew a number of negative credibility findings, concluded that the applicants had failed to establish a well-founded fear of persecution, and recommended that they should not be declared refugees.
The applicants appealed from the ORAC decision to the Refugee Appeals Tribunal (RAT). With their Notice of Appeal, dated 2 nd March, 2004, they submitted a booklet of documentation, including inter alia birth certificates, medical reports, certificates recording the cause of death of the second and third daughters, a police report detailing the complaint made by the first named applicant in July, 1999, and 14 documents comprising country of origin information (COI). The majority of the COI submitted consists of "Responses to Information Requests" (RIRs) which are compiled by the Immigration and Refugee Board of Canada (IRB) in response to queries submitted to the Research Directorate of the IRB in the course of the refugee protection determination process.
The oral hearing that is relevant to the present challenge was held on 6 th June, 2006. The first and second named applicants gave evidence; the first named applicant, in particular, was questioned about a number of aspects of her claim. It is noteworthy that the applicants were legally represented at the hearing. Having been so requested at the hearing, the first named applicant forwarded to the Tribunal two medical reports confirming the circumcision, one by a GP dated 12 th June, 2006, and the second by a Consultant Paediatrician, dated 14 th July, 2006.
In her decision, dated 22 nd August, 2006, the Tribunal Member pointed out a number of inconsistencies in the first named applicant's account of events. It does not seem that the decision ultimately turned on any of these discrepancies.
After discussing the law, the Tribunal Member stated that "it is not accepted that there is a genuine subjective fear for the following reasons", and then made credibility findings as to the death of the baby girls and the risk to the...
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