R S. v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 13 February 2014
• Neutral Citation: [2014] IEHC 55
• Court: High Court
• Date: 13 February 2014

[2014] IEHC 55

THE HIGH COURT

[No. 1317 J.R./2010]

S (R) (a minor) v Refugee Appeals Tribunal & Min for Justice

No Redaction Needed

JUDICIAL REVIEW

BETWEEN

R. S. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND H. S.)

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S8

S (E) v REFUGEE APPEALS TRIBUNAL UNREP COOKE 15.7.2009 2009/51/12901 2009 IEHC 335

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

Judicial Review – Asylum - Nationality - Application for subsidiary protection refused - Related application of mother - Decision made in error - Credibility - Immigration Act 1999

Facts: The applicant was a minor who was born in Ireland on the 5 ^th April 2010. An application for refugee status was presented on the applicant”s behalf by his mother, who claimed to be a Somali national of Bajuni ethnicity, and was based on her own application for asylum. The mother”s application was ultimately rejected by the Refugee Applications Commissioner and the Refugee Appeals Tribunal on the basis of negative credibility findings. Specifically, an analysis of the language that the mother spoke was commissioned, which found that she spoke Swahili of the sort spoken in Kenya to mother tongue level and that her use of the Bajuni language was deficient. It was also noted that it was clear that the mother had obtained a visa on a Tanzanian Passport to enter and study in the United Kingdom, a fact which she had strenuously denied. An application for subsidiary protection was similarly rejected as she was considered to be a Tanzanian national.

The applicant”s claim for refugee status was then refused by the Refugee Applications Commissioner and the Refugee Appeals Tribunal. It was said by the later that the applicant”s mother had failed to demonstrate how her child would be at risk of serious harm in Somalia. It was also noted that it was the respondent”s belief that the mother (and therefore the applicant) was not a national of Somalia. The applicant brought an application for leave to apply for judicial review to quash the decision of the respondent. It was argued that the respondent had unlawfully failed to make a clear finding as to the applicant”s or the mother”s nationality. The respondent argued that they were under no obligation to establish the nationality of the applicant or his mother once they had rejected the asserted claim of Somali nationality.

Held by Mac Eochaidh J. that although it is impossible to declare a person a refugee unless a decision maker has determined the nationality of the asylum seeker, this did not mean that in a case where an asserted claim as to nationality is rejected, the decision maker must then identify the nationality of the claimant. In this case, it was clear that the refusal to grant asylum was based on the earlier rejection of the mother”s claim to be Somali because her claim had been the sole basis of the applicant”s assertion of nationality. Since the respondent had determined that the mother (and therefore the applicant) were not Somalian, they were not obliged to determine their true nationality.

Leave refused.

1 JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 13th day of February 2014

2 1. The minor applicant was born in Ireland on 5 ^th April 2010. His claim for asylum was presented by his mother. An interview pursuant to s. 8 of the Refugee Act 1996 was conducted on 1 ^st June 2010, which records that "the applicant's reason for seeking asylum is based on [the mother's] own application". The mother's claim for asylum was rejected on the basis of significant negative credibility findings. These negative findings are repeated, in part, in the mother's application for subsidiary protection which resulted in refusal.

3 2. The short decision in respect of the minor applicant is, in relevant part, in the following terms:

"The applicant's mother was afforded every opportunity to express and to outline fears she might have for her child in Somalia, however, it was noted by the Tribunal that the infant applicant's mother failed to avail of this opportunity so to do. The applicant's mother's claim was heard and determined (69/427/08) and she failed to satisfy the Tribunal that she had a well-founded fear of persecution on any Convention ground. Further issues in relation to her nationality were raised and it was determined that she was not a Somali national. A language analysis carried out stated that the applicant's mother did not speak the Bajuni dialect. The applicant's mother claims to not know the father of the applicant as she was seeing two men at the time of his conception, a Nigerian national and a Congolese national. Not having advanced any further reasons or fears for her son's safety in Somalia and in the light of the decision given in respect of the infant applicant's own mother's claim, this infant has not satisfied the Tribunal that he has a well-founded fear of persecution on any Convention ground. That being so, the applicant is not a refugee and accordingly the decision of the Commissioner is upheld."

4 3. The principal complaint made on behalf of the applicant in respect of this finding is that the Tribunal Member allegedly failed to determine the nationality of the applicant. The applicant referred to the decision of Cooke J. in E.S. v. The Refugee Appeals Tribunal [2009] IEHC 335, where the learned judge said:

5 2 "23. It is axiomatic that the establishment of the country of origin of a claimant to refugee status is fundamental to the assessment of the claim because it is otherwise impossible to determine whether the claimant is outside that country owing to a Convention based fear of persecution. That is not infrequently an extremely difficult exercise and while the onus of establishing refugee status is on the claimant, the UNCHR handbook points out ait paragraph 196:

6 'While the burden of proof in principle rests with the applicant, the duty to ascertain and evaluate all relevant facts is shared between the applicant and the examiner. Indeed, in some cases it may be for the examiner to use all means at his disposal to produce the necessary evidence in support of the application'.

7 …

8 24. The ambiguity and uncertainty in the Contested Decision in this case lies in the fact that on the one hand it gives the clear impression that the Tribunal Member comes to the same view as the...