Muia v O Gorman (sitting as the Refugee Appeals Tribunal) and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 11 November 2005
• Neutral Citation: [2005] IEHC 363
• Docket Number: [No. 251 J.R./2005]
• Court: High Court
• Date: 11 November 2005

MUIA v REFUGEE APPEALS TRIBUNAL (O'GORMAN)

JUDICIAL REVIEW

BETWEEN

VICTOR MUIA

APPLICANT

AND

MICHELLE O'GORMAN SITTING AS THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2005] IEHC 363

[No. 251 J.R./2005]

THE HIGH COURT

IMMIGRATION

Judicial review

Application for leave - Asylum - Credibility- Failure to make clear findings as to credibility - Whether in circumstances of ambiguity as to extent of credibility findings applicant entitled to have any aspect of account not subject of clear finding treated as credible for purposes of review - Availability of state protection - Country of origin information - No evidence of consideration of country of origin information - Whether relevant considerations taken into account -Manzi v Refugee Appeals Tribunal (Unrep, Clarke J, 8/11/2005) considered - Leave granted (2005/251JR - Clarke J -11/11/2005) [2005] IEHC 363

M(V) v Refugee Appeals Tribunal

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S13(6)(A)

REFUGEE ACT 1996 S13

MANZI v REFUGEE APPEALS TRIBUNAL & MIN JUSTICE UNREP CLARKE 8.11.2005 2005 37 7774 2005 IEHC 374

KHUP v ASHCROFT 2004 US APP LEXIS 14656

ZGNATEV v MIN FOR JUSTICE UNREP FINNEGAN 29.3.2001 2002/29/7601

Mr. Justice Clarke

2 1.1 In these proceedings the applicant seeks leave to challenge, by way of juridical review, a decision of the first named respondent in her capacity as the

Refugee Appeals Tribunal ("RAT") member concerned, recommending a refusal of refugee status. The third and fourth named respondents are named because of the possible constitutional issues which were addressed in the course of the hearing before me. The applicant must show substantial grounds for his challenge in order to obtain leave. The test is now so well established that it is unnecessary to repeat it here.

2 2.1 The applicant is a Kenyan national who was born on 27th March, 1986. It would appear that he arrived in the State on 25th April, 2003 and applied for asylum. The procedures by which his application for asylum were considered were in accordance with normal practice in that the applicant completed the standard questionnaire and was subsequently interviewed by an officer of the Refugee Applications Commissioner ("RAC") on 21st July, 2004.

3 2.2 As appears from the questionnaire and the notes of that interview the substance of the claim to refugee status put forward by the applicant was his fear of the Mungiki group in Kenya. In the course of both the questionnaire and the interview the applicant gave details of events which had occurred in Kenya which, he contended, established a well founded fear of persecution for a convention reason by virtue of his concerns about the Mungiki group.

4 2.3 The RAC prepared the report required by s. 13(1) of the Refugee Act1996 (as amended) which recommended that the applicant not be declared to be a refugee. That report was forwarded to the applicant under cover of a letter of 2nd November, 2004 informing him of that decision.

5 2.4 It should also be noted that the report contained a finding or conclusion to the effect that s. 13(6)(a) of the Refugee Act1996 as amended applied. Such a finding involves a determination by the RAC that the relevant application had "no basis or a minimal basis". As a consequence of such a finding the applicant was not entitled to an oral hearing before the RAT.

6 2.5 A notice of appeal was, however, filed on behalf of the applicant to the RAT on 17th November, 2004. Because of the finding of the RAC under s. 13 to the effect that s. 13(6)(a) applied the submissions and representations made on behalf of the applicant to the RAT were in writing. On foot of a consideration of the case the RAT informed the applicant by letter dated 21st February, 2005 that "the Tribunal has affirmed the recommendation of the Refugee Applications Commissioner given under s. 13 of the above Act". There was enclosed a copy of the written decision of the first named respondent dated 10th February.

2 3.1 That decision, which is the subject of the challenge in these proceedings, commences by specifying the manner in which the appeal came before the RAT and setting out certain statutory and other legal principles applicable. Nothing turns on this aspect of the decision. There follows under the heading "background information" a brief account of the position of the applicant which I should set out. It reads:-

"The applicant is a Kenyan national and was born on 27th March, 1986. The applicant is a Catholic and is a member of the Kikuyu ethnic group. The applicant lived with his father at Dandora, Nairobi before fleeing to a pastor's house at Kibera Nairobi. The applicant lived with his father and brother. His mother and two sisters had earlier fled the family home as they feared female genital mutilation (FGM). The applicant's case is based on a stated fear of persecution in Kenya by members of the Mungiki sect. The applicant's father and brother were ardent members of the sect. Before the applicant could take the Mungiki oath the applicant fled his home and lived with a protestant pastor for six months. The pastor organised the applicant's travel to Ireland.

The applicant applied for a declaration of refugee status in Ireland on 29th May, 2003. The applicant's claim is set out in the questionnaire, interview, s. 13 report and the form 2 notice of appeal and need not be repeated here".

3 3.2 There follows under the heading "assessment of the applicant's claim" an analysis of certain aspects of the applicant's evidence which, in the view of the decision maker, gave rise to credibility issues.

4 3.3 It is unfortunate that, while raising credibility issues and indicating those aspects of the applicant's account which gave rise to those credibility issues, the decision maker does not appear to have specified in any clear terms those aspects of the applicant's account which, at the end of the day, she was not prepared to accept.

5 3.4 InManzi -v- The Refugee Appeals Tribunal and Another (Unreported High Court, Clarke J., 8th November, 2005) (at para. 3.4) I indicated that the view expressed by the US Appeals Court in Khup -v- Ashcroft [2004] U.S.A. pp. LEXIS represented the law in this jurisdiction. It, therefore, seems to me that in the absence of a clear finding of lack of credibility on the part of the applicant concerned, a Court exercising a review role must do so on the basis that the applicant's evidence is correct.

6 3.5 While it may be inferred from the decision of the RAT in this case that at least certain aspects of the account given by the applicant were not, in the view of the decision maker, credible, it nonetheless must also be inferred by virtue of the conclusions (to which I will refer) that the decision maker appears to have been satisfied that the applicant had a well founded fear of the Mungiki but that such fear was not for a convention reason. On that basis it would seem that it might be inferred that at least some of the more significant aspects of the applicant's account were regarded as credible. In those...