Manzi v The Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 08 November 2005
• Neutral Citation: [2005] IEHC 374
• Docket Number: [No. 1197 J.R./2004]
• Court: High Court
• Date: 08 November 2005

[2005] IEHC 374

THE HIGH COURT

[No. 1197 J.R./2004]

MANZI v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE

JUDICIAL REVIEW

BETWEEN

CHIMENE MANZI

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S16(6)

REFUGEE ACT 1996 S2

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

KHUP v ASHCROFT 2004 US APP LEXUS 14656

Z v MIN FOR JUSTICE & ORS 2002 2 IR 135 2002 2 ILRM 215

IMMIGRATION AND ASYLUM

asylum

Application for leave - Credibility of applicant - Whether the test for considering refugee status was position that pertained at time decision maker considered application - Whether in absence of clear finding of lack of credibility court exercising review role must do so on basis that applicant's evidence was correct - Whether respondent was confined to considering applicant's own circumstances - Whether respondent was required to look at surrounding circumstances which might have bearing on whether applicant had well founded fear of persecution - Leave granted (2004/1197JR - Clarke - 8/11/2005) [2005] IEHC 374

MANZI v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE

Mr. Justice Clarke

1 2 1.1 The applicant is a Burundian national who would appear to have arrived in Ireland on 19th July, 2003. Thereafter she made an application for refugee status. In the questionnaire which she was, in accordance with normal practice, required to complete in support of her application for such refugee status she stated that her father Faustin Manzi and her mother Jeanette Manzi (nee Matama) were of mixed ethnicity in that her father was Hutu and her mother Tutsi. It is clear that her mixed ethnicity formed the basis of her claim to refugee status. In addition to completing the questionnaire, again in accordance with normal practice, the applicant was interviewed on behalf of the Refugee Applications Commissioner ("RAC"). In her case two such interviews took place.

2 3 1.2 In the information given to the RAC the applicant gave an account of the fact that her father and brother had been murdered and that subsequently her mother had also been murdered.

At question 39 of the questionnaire she stated as follows:-

3 "As the mere offspring of a Hutu father and Tutsi mother I was never accepted. Given what happened to my father, mother and my brother Jerome, I fear for my life if I were to return to that country, as a member of that family.

4 On account of my ethnic origins my father was killed by the rebels. Because he had married a Tutsi they could not trust him. My brother, who had been with him during that time, also lost his life, because he had Tutsi blood from my mother's side. It would have been the same with me if I had been with my father during that period."

5 4 1.3 In the course of the first of two interviews (held on the 22nd January, 2004) on behalf of the RAC the applicant gave an account of the circumstances in which she says her mother had been killed in the immediate run up to her departure from Burundi. This occurred, she indicated, when a Captain Kiboko of the FAB (Forces Armees Burundaise) who had been "going out with my mother for two years since my father and brother were killed" and who had helped both her and mother came to the house where she was staying and, apparently drunk, stated that "a Hutu must not live in a house and they must live in a refugee camp". She stated that Captain Kiboko ripped her dress with his bayonet. At that point his phone rang giving her a chance to escape.

6 5 1.4 When interviewed on the second occasion by an officer of the RAC on the 1st March, 2004, on being asked what might happen to her if she was sent back to Burundi, the applicant stated as follows:-

7 "God knows what would happen. I don't know where I could go if I was sent back to Burundi because of what happened to my mother my father and my brother who were killed by the people who are supposed to protect them. I have been running all my life and refused freedom and justice in my own country. If I was sent back the Captain would want to sleep with me and other people like "Sans Echecs" would kill me and I have nobody in Burundi to protect me. Both the Hutu and Tutsi groups don't trust me because I am of mixed race. I have no side and I have nobody to consider me as a human being even the government".

8 6 1.5 The RAC recommended that the applicant should not be declared a refugee. The recommendation is contained in a "report and recommendation" prepared pursuant to s. 13(1) of the Refugee Act1996. It should be noted that, in part, the reasoning set out in that report questioned the credibility of the applicant.

9 7 1.6 Against that decision the applicant appealed to the Refugee Appeals Tribunal ("RAT") by notice of appeal dated 13th July, 2004. A hearing took place on 8th September, 2004 before the first respondent, as a member of the RAT, following which a decision issued dated 2nd November, 2004.

10 8 1.7 The decision follows the usual pattern of such decisions in it that it sets out a summary of the evidence, follows this by a statement, in general terms, of the relevant law, goes on to indicate that the Tribunal has noted "the country of origin information, the form 1, and the questionnaire and the replies at interview", and, in the operative part of the decision sets out the substance of the recommendation. That portion is, in this case, very brief and I propose quoting it in full. It reads as follows:-

11 "I have carefully considered the submissions made to me with regard to this matter and all that is necessary to be considered pursuant to s. 16(16) of the Refugee Act1996 (as amended).

12 Having considered this case I am satisfied that the applicant's difficulties in Burundi do not amount to persecution within the meaning of s. 2 and my reasons for this decision are as follows:-

13 The applicant fled Burundi immediately following the death of her mother having fled to her mother's friend's house in which her godfather was present. The reason why the applicant fled was in order to escape the sexual desires of a Captain Kiboko. I find from this evidence that the applicant had been pursued not by virtue of her mixed race but by virtue of the sexual desires of this Captain Kiboko. In my view, after reviewing the evidence, there is no s. 2 nexus which brings the applicant within the definition of a refugee as having a well founded fear of persecution by reason of her mixed ethnic background, her mother being a Tutsi and her being a Hutu. The applicant is therefore not a refugee within the meaning of this Act".

14 9 1.8 On that basis the first named respondent affirmed the recommendation made by the RAC.

15 2 2.1 In these proceedings the applicant seeks leave to challenge, by way of judicial review, the decision of the RAT. In order to succeed in obtaining leave, the applicant needs to establish substantial grounds for her contentions (that is to say grounds which are not trivial or tenuous).

16 3 2.2 The applicant puts forward three grounds. In summary they are as follows:-

17 1. That the RAT failed to consider and deal with the full extent of the applicant's case. In substance the contention under this heading is that by concentrating solely on the immediate circumstances surrounding the applicant's departure from Burundi (that is the events involving Captain Kiboko) the applicant failed to consider the wider aspect of the applicant's contention that she had a well founded fear of persecution by reason of her mixed ethnicity.

18 2. It is suggested that in coming to the view referred to above the RAT was guilty of a fundamental error of fact; and

19 3. It is suggested that the decision of the RAT was irrational either in the sense in which that term is used inO'Keeffe v. An Bord Pleanála [1993] I.R. 39 or, on the contention of the...