Murkhtar v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Kevin Cross
• Judgment Date: 23 March 2012
• Neutral Citation: [2012] IEHC 123
• Court: High Court
• Date: 23 March 2012

[2012] IEHC 123

THE HIGH COURT

[No. 585 J.R./2011]

Murkhtar v Min for Justice

BETWEEN

ZHARA MURKHTAR

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

R (I) v REFUGEE APPEAL TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

IMMIGRATION LAW

Subsidiary protection

Unaccompanied minor - Credibility - Language analysis report - Question over nationality - Country of origin information - Whether arguable grounds - Whether error in failing to give weight to corroborative evidence - Whether error in rejecting evidence without reasons - R(I) v Minister for Justice, Equality and Law Reform [2009] IEHC 353, (Unrep, Cooke J, 24/7/2009) followed - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Decision quashed (2011/585JR - Cross J - 23/3/2012) [2012] IEHC 123

Murkhtar v Minister for Justice and Equality

Background

1 1. The applicant claims to be a Somali national with a date of birth on 25 ^th December, 1990. She had previously made a Visa application in person to the U.K. authorities in Kenya giving her date of birth as 1 ^st January, 1982 and her name as Sahara Adn Manoor. The applicant apparently arrived in the State on 29 ^th October, 2008.

2 2. The applicant claimed she was 17 years of age was accepted as an unaccompanied minor by the RAC and the HSE and with the assistance of the HSE applied for refugee status on 16 ^th December, 2008.

3 3. The applicant's claim for refugee status failed at the Commissioner's stage as the Commissioner considered her not to be credible in that she had lied and how she came to Ireland saying that she came directly whereas she had travelled to the U.K. on a Kenyan passport with U.K. Multi-trip Business Visa and had remained in the U.K. for some two months prior to coming to Ireland. The language analysis report was relied upon which found that while her language was Somali that it stated "with certainty" that she was not from southern Somalia but was likely to be from Kenya.

4 4. A papers only appeal was made to the Refugee Appeals Tribunal which upheld the recommendations of the Commissioner finding that the applicant has applied as a Somali national with a fabricated story which she persisted with.

5 5. On 31 ^st December, 2010, the applicant made an application for subsidiary protection and for humanitarian leave to remain. Apparently the application for leave to remain has not yet been disposed of but on 24 ^th March, 2011, the applicant was notified that the Minister intended to process her application on the basis that she was a Kenyan national and afforded her fifteen days in which to make submissions as to why the Minister should process her claim on the basis that she was a Somali. The applicant's legal representative made such submissions on 7 ^th April, 2011.

6 6. Earlier, the applicant had made an application through the Red Cross Restoring Family Links organisation in respect of persons claimed to be her mother and her husband.

7 7. Details of these persons claiming to be her mother and husband in Somalia were furnished to the applicant in 2009 but the applicant stated that she did not know that she could reply to her family and she did not submit these documents to either the ORAC or the RAT.

8 8. In May 2011, the applicant's solicitors wrote to the respondent with the updated submissions as to her subsidiary protection and leave to remain applications dealing with the issue of her nationality and included letters from the Irish Red Cross and enclosures indicating that the international Red Cross had located the applicant's family members in Afgoye in Somalia. It was submitted by the applicant's solicitors that this proved she was Somali rather than Kenyan and furthermore that she was from Afgoye as claimed. The Irish Red Cross tracing file indicated that the applicant's mother and husband were still living in Afgoye and further showed they had been located using the applicant's given name, date-of-birth and nationality rather than the different details in the Kenyan passport used to obtain the U.K. Visa. It was indicative therefore of an independent corporation of the applicant's claim of identity and nationality which had not been before the ORAC or the RAT but had been submitted to the respondent for the subsidiary protection and leave to remain applications.

The Claim

9 9. The argument of this claim was conducted with exemplary clarity and succinct brevity by Mr. Anthony Hanrahan of counsel on behalf of the applicant and by Ms. Ann Harnett-O'Connor of counsel, on behalf of the respondent.

10 10. The applicant's claim in essence is that the respondent erred in failing to give any weight to the corroborative evidence from the Red Cross and/or in...