Ngangtchang v The Regufee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Leary
• Judgment Date: 21 December 2005
• Neutral Citation: [2005] IEHC 441
• Docket Number: [No. 1203 JR/2004]
• Court: High Court
• Date: 21 December 2005

[2005] IEHC 441

THE HIGH COURT

[No. 1203 JR/2004]

NGANGTCHANG v REFUGEE APPEALS TRIBUNAL & ORS

JUDICIAL REVIEW

BETWEEN

CHIMENE WANDJI NGANGTCHANG

APPLICANT

AND

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

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION ATTORNEY GENERAL

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(a)

REFUGEE ACT 1996 S16(8)

REFUGEE ACT 1996 S2

UK HOME OFFICE COUNTRY OF ORIGIN REPORT OF FACT-FINDING MISSION TO CAMEROON JANUARY 2004

REFUGEE ACT 1996 S13(1)

UNHCR REFUGEE CHILDREN GUIDELINES ON PROTECTION AND CARE 1994

REFUGEE ACT 1996 11(A)(3)

BISONG v MIN FOR JUSTICE UNREP HIGH COURT O'LEARY 25.4.2005

IMMIGRATION AND ASYLUM

Asylum

Minor - Credibility - Fair procedures - Unaccompanied minor - Standard of proof for minor - Country of origin information - Bisong v Minister for Justice [2005] IEHC 157 (Unrep, O'Leary J, 25/4/ 2005) distinguished - Refugee Act 1996 (No 17) s 11(A)(3)- Leave refused (2004/1203JR - O'Leary - 21/12/2005) [2005] IEHC 441

NGANGTCHANG v REFUGEE APPEALS TRIBUNAL & ORS

Facts: the applicant was a minor when she applied for asylum. However, by the time she was interviewed by the Refugee Applications Commissioner and at all decision making stages in her asylum application, she was over eighteen. She submitted that as she had applied as an unaccompanied minor, she should not be expected to prove her status as if she was an adult. The respondent had contended that she could not find any information to corroborate the applicant’s testimony. In this respect, the applicant also asserted that she had been denied access to country of origin information on which the respondent had relied.

Held by O’Leary J in refusing leave that a person of the applicant’s age and capacity to describe her experiences should be expected to bear the normal burden envisaged by section 11(A)(3) of the Refugee Act 1996.

That failure to disclose country of origin information could be a ground for judicial review but that did not arise in the present case as what was in issue was not a failure to disclose information relied on but an assertion that no information could be found.

Reporter: P.C.

Mr. Justice O'Leary

1 The applicant seeks leave to apply by way of judicial review for the following orders:

2 (a) An Order of Certiorari quashing the decision of the first named respondent dated the 30th day of November, 2004, in respect of the applicant's application for refugee status.

3 (b) A declaration that the first named respondent erred in law and/or in fact in its conduct of the applicant's appeal hearing and its determination thereof dated the 30th day of November, 2004.

4 (c) An injunction by way of application for Judicial Review restraining the second named respondent from acting on foot of the decision of the first named respondent dated the 30th day of November, 2004, pending the outcome of these proceedings.

5 (d) A declaration, pursuant to section 5(1) of the European Convention on Human Rights Act,2003, that the rule of law that currently governs the scope of judicial review in respect of cases involving fundamental human rights, is incompatible with the European Convention on Human Rights.

6 (e) An order allowing for an extension of time within which to bring an application for judicial review, pursuant to section 5 (2) (a) of the Illegal Immigrants (Trafficking Act),2000.

7 (f) Such further or other order as this Honourable Court shall seem meet.

8 (g) An order providing for costs.

9 The relief is sought on the following grounds:

10 (i) The tribunal member erred in law and acted in breach of section 16 (8) of the Refugee Act,1996, and in breach of the applicant's right to fair procedures, in failing to provide the applicant and her legal representatives with an indication in writing of the source of all information that came to her notice during the appeal. The tribunal member refers to "the sources consulted, including country reports, Amnesty International Reports, Canadian IRB, ambaxonia.indymedia.org and a general Internet search" but fails to state the source of all information that came to her notice.

11 (ii) The tribunal member erred in law in confining her analysis of the applicant's claim to one where the applicant was regarded solely as an employee of an SCNC member, in that such analysis fails to consider the concept of imputed political opinion. The applicant's evidence was that the police accused her of trying to protect her employer, and told her that as a member of the Bamileke tribe she wanted to divide Cameroon. The tribunal member appears to have accepted the veracity of this part of the applicant's claim and erred in law in not finding that this brings the applicant within section 2 of the Refugee Act,1996, either by way of imputed political opinion race, ethnicity or membership of a particular social group.

12 (iii) Further to (ii), the tribunal member erred in law in finding that the absence of reference to the targeting of people who work for SCNC members in the UK Home Office Report of January, 2004, was such as to undermine the applicant's claim. The applicant was not regarded by the authorities as solely as an employee of an SCNC member. She was regarded by the authorities in Cameroon as a person who tried to protect her employer and who wanted to divide Cameroon.

13 (iv) Further to (ii), the tribunal member erred in law in drawing an adverse inference from the absence of reference to the targeting of people who work for SCNC members in the UK Home Office Report of January, 2004. The Report refers to persecution against SCNC members. It makes no statement, either corroborative or uncorroborative, in respect of the treatment meted out to employees of SCNC members.

14 (v) The tribunal member erred in law in drawing an adverse finding against the applicant on the basis that "no information on the detention of the applicant's employer could be located in the sources consulted". Again, the tribunal member acted unlawfully for the reasons set out in ground (i) above. Further, the Amnesty International report that refers to the detention of SCNC activists in 2002, which was before the Tribunal at the hearing, pre-dates the arrest of the applicant's employer, such that no reference could have been made to him.

15 (vi) The tribunal member erred in law and in breach of the applicant's right to fair procedures and unreasonably in holding that the authorities did not seek out the applicant through her school. There was no evidence before the tribunal member that the authorities did not seek out the applicant through her school. The applicant's evidence was that she did not attend the school at that particular time.

16 (vii) The tribunal member erred in law in making adverse credibility findings that had no, or no proper, evidential basis. In particular, but without prejudice to the foregoing, the findings were based on pure conjecture, and/or on a presumption as to how "a reasonable man" would act and, as such, were particularly unreliable in the refugee context. The tribunal member's findings in respect of the applicant's mother being identified at a checkpoint and the manner in which the applicant was apprehended by police in a taxi were based on no independent evidence, were pure conjecture, and were devoid of any adequate reasoning.

17 (viii) The tribunal member failed to give any, or any adequate, weight to the report of Ms. Jennifer Rylands, Senior Clinical Psychologist with the Northern Area Health Board, and in particular to the statement that the applicant "found it difficult to report experiences in her country of origin because of her distress level" and to the "Summary" of the report.

18 (ix) The tribunal member erred in law in failing to properly take account of the trauma of rape suffered by the applicant.

19 (x) The tribunal member failed to apply the principles that pertain to an application for refugee status brought by an unaccompanied minor. In particular, but without prejudice to the foregoing, the tribunal member failed to apply a liberal application of the benefit of the doubt.

20 (xi) The tribunal member erred in law in her assessment of the applicant's credibility and in failing to apply the correct principles in the determination of credibility in...