N (S) v Refugee Appeals Tribunal & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 06 June 2013
• Neutral Citation: [2013] IEHC 282
• Court: High Court
• Date: 06 June 2013

[2013] IEHC 282

THE HIGH COURT

[No. 215 J.R./2009]

N (S) v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

BETWEEN

S. N.

APPLICANT

AND

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

REFUGEE ACT 1996 S13

E v SECRETARY OF STATE FOR HOME DEPARTMENT 2004 QB 1044

R v CRIMINAL INJURIES COMPENSATION BOARD EX P A 1999 2 AC 330

R (ALCONBURY DEVELOPMENTS LTD ) v SECRETARY OF STATE FOR ENVIRONMENT 2003 2 AC 295

L (VCB) v REFUGEE APPEALS TRIBUNAL UNREP COOKE 15.10.2010 2010/30/7504 2010 IEHC 362

RICHARDSON v MAHON & ORS UNREP DUNNE 21.3.2013 2013 IEHC 118

RYANAIR v FLYNN 2000 3 IR 240

TRAORE v REFUGEE APPEALS TRIBUNAL 2004 5 JIC 1405

I R v REFUGEE APPEALS TRIBUNAL UNREP COOKE 26.11.2009 2009/47/11883 2009 IEHC 510

M (V) KENYA v REFUGEE APPEALS TRIBUNAL UNREP CLARK 29.1.2013 2013 IEHC 24

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

Immigration - Judicial Review - Asylum - Refugee Appeals Tribunal - Risk of serious harm - Criminal gang - Country of origin information - Error of fact - Typographical error - Proper consideration of evidence - Refugee Act 1996

Facts: The applicant was a native of Kenya who arrived in Ireland in August 2005 and subsequently claimed asylum. It was his contention that he was at risk of serious harm if returned to his native country from a criminal gang known as the Mungiki tribe due to the fact he had once been a member but theh left in 2004. He claimed that the brutality of the gang was evident in the fact that they murdered his cousin and her boyfriend in 2004, 2 years after the pair had first introduced the applicant to the tribe. The asylum application was rejected by Refugee Applications Commissioner as a result of a negative credibility finding that was made in relation to the applicant”s lack of knowledge of the circumstances of his cousin”s death. An appeal was made before the Refugee Appeals Tribunal (‘the Tribunal’) though no challenge was seemingly made in relation to the negative credibility finding. The appeal was rejected and a letter soon followed from the Ministerial Decisions Unit in the Irish Naturalisation and Immigration Service advising that the Minister for Justice, Equality and Law Reform (‘the Minister’) refused to grant refugee status to the applicant as a result of the Tribunal”s recommendations.

The applicant subsequently brought proceedings challenging the decision of the Minister on the basis that the Tribunal had referred to the Mungiki tribe as the ‘Kumgiki tribe’ throughout the appeal; had failed to adequately consider the applicant”s evidence in relation to the murder of his cousin; and failed to adequately assess the country of origin information in determining whether the applicant would be safely relocated within Kenya if deported. The respondents rejected the applicant”s assertions, claiming the ‘Kumgiki tribe’ references were not errors of fact sufficient to vitiate the Tribunal”s decision, and that the applicant”s evidence on the murder of his cousin had been properly considered. On the ground that the country of origin information was not considered properly, it was argued that that the information clearly indicated that Kenyan state authorities were successfully overcoming the Mugiki tribe. On that basis, it was said that reasonable state protection or relocation would have been available to the applicant if he had applied for it.

Held by Mac Eochaidh J that the references to the ‘Kumgiki tribe’ were possibly better described as typographical errors than errors of fact. Even if it was assumed that they were errors of fact, they certainly had no material impact on the outcome of the case, and so the applicant”s complaint in this regard was rejected. In relation to the applicant”s complaint that his evidence on the murder of his cousin was not properly considered, it was noted that the negative credibility finding of the Refugee Applications Commissioner on this matter had not been a ground of appeal before the Tribunal. On that basis, and on consideration of the Tribunal”s written decision, it was held that the evidence of the applicant was properly considered in relation to the murder of his cousin, and the Tribunal was entitled to reach the conclusion it had in that regard.

Finally, in relation to the complaint regarding the Tribunal”s consideration of the country of origin information in regards to possible state protection and/or relocation for the applicant, it was held that the Tribunal had sourced the country of origin information itself and then fairly put the matters to the applicant at the hearing. The court held that the applicant had failed to demonstrate how the country of origin information had been inadequately considered and this ground was also rejected.

Leave to apply for judicial review refused.

Background

1 1. The applicant is a Kenyan man, born in 1971, who sought asylum in Dublin Airport on 22 ^nd August, 2005. The determination of his claim by the Office of the Refugee Applications Commissioner is dated in late 2005. That decision (and the accompanying 'section 13 report') records that the applicant joined the Mungiki tribe in July 2002 and left in October 2004 as it had been outlawed by the Kenyan Government. The basis of his claim for refugee status, according to the report, is that he fears retribution from the tribe. Country of origin information describes the tribe as a criminal gang with a record of brutality. The applicant was introduced to the tribe by his cousin and her boyfriend and he says that they were murdered in April 2004. The s. 13 report raised questions as to the credibility of the applicant because of his lack of knowledge of the circumstances of the murder of his cousin, inter alia. A negative assessment was made of the applicant's claim and a notice of appeal was received by the RAT on 26 ^th January, 2006. Some twelve typed pages of grounds were submitted by the applicant's lawyers. No specific complaint was made in the Appeal in respect of the credibility finding relating to the circumstances of his cousin's murder.

2 2. The RAT conducted an oral hearing on 29 ^th April, 2008, and delivered its decision on 24 ^th October, 2008.

3 3. By letter of 10 ^th February, 2009, the Ministerial Decisions Unit in the Irish Naturalisation and Immigration Service wrote to the applicant's solicitors to give them a copy of a decision letter also dated the 10 ^th February, 2009, informing the applicant that the Minister had decided to refuse to grant refugee status. The letter says:-

"We regret to inform you that the Minister for Justice, Equality and Law Reform has decided to refuse to give you refugee status. The reasons for this decision are set out in the recommendation made by the Refugee Appeals Tribunal, which you have already been given."

4 4. Proceedings challenging only the decision of the Minister and not the decision of the RAT issued on 25 ^th February, 2009.

5 5. At the hearing of this action, counsel for the applicant restricted the grounds of challenge to a complaint concerning the rendition by the Tribunal Member of the Mungiki tribe as the 'Kumgiki' tribe throughout his decision; a complaint that the Minister failed to have regard to the applicant's evidence about the murder of his cousin; and a complaint that the Minister failed to assess country of origin information as to whether the applicant would be safe in Mombasa.

6 6. I expressed concern that the proceedings did not embrace a challenge to the decision of the RAT and eventually counsel for the applicant sought leave to amend the proceedings to include such a claim. The relevance of this point is that the applicant might be out of time if he is required to challenge the decision of the RAT and not just the decision of the Minister accepting the RAT's recommendation. In passing I note that a challenge to the Minister's decision unaccompanied by a challenge to the RAT, if successful, would not necessarily disturb a negative RAT recommendation, even if the basis for success was a flaw in the RAT decision adopted by the Minister. I cannot see why the Minister could not, having been defeated, revisit his decision and accept the negative recommendation of the RAT but for reasons shorn of the flaw identified in the successful proceedings. In other words I see little merit and great peril in pursuing the Minister only and not the RAT in asylum judicial review. Further, in a case such as this where the Minister's decision involves the adoption of the entirety of the RAT recommendation (and the reasoning therein), a challenge to the Minister's decision is almost certainly a collateral attack on the decision of the RAT but is one not instituted within the 14 day period required by law..

The Decision of the Tribunal Member

7 7. The Tribunal Member opened his assessment of the applicant's claim with a summary of his conclusions, in the following terms:-

"The applicant's story was non-specific and in my view having heard it, it did not seem to be the evidence of a person who had been involved in the incidents the applicant had claimed he had been involved in. It lacked the type of detail that one would expect and as a consequence I found it neither plausible nor credible."

This statement indicates the Tribunal Member's findings are based, at least in part, on the demeanour of the applicant.

8 8. The applicant's evidence as to how he arrived in Ireland is rejected and the view of the Garda National Immigration Bureau ("GNIB") that his identity card is a fake seemed to have been persuasive and the applicant's credibility is thereby undermined, according...