R.T.K and Others v The Refugee Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Colm Mac Eochaidh |
| Judgment Date | 14 March 2013 |
| Neutral Citation | [2013] IEHC 108 |
| Court | High Court |
| Date | 14 March 2013 |
[2013] IEHC 108
THE HIGH COURT
BETWEEN
AND
AND
EUROPEAN COMMUNITIES (ELIGIBILTY FOR PROTECTION) REGS 2006 S5(2)
EUROPEAN COMMUNITIES (ELIGIBILTY FOR PROTECTION) REGS 2006 S2(1)
OLOO-OMEE v REFUGEE APPEALS TRIBUNAL UNREP MACEOCHAIDH HIGH 31.3.2009 2012 IEHC 455
IP & ORS v MIN FOR JUSTICE UNREP CLARK 28.9.2010 2010/23/5699 2010 IEHC 368
S (R) PAKISTAN v REFUGEE APPEALS TRIBUNAL CLARK 29.1.2013 2013 IEHC 26
REFUGEE ACT 1996 S11B(B)
R (I) v REFUGEE APPEALS TRIBUNAL UNREP 24.07.2009 2009/47/11866 2009 IEHC 353
O (R) (AN INFANT) v MIN FOR JUSTICE & ORS UNREP MACEOCHAIDH 20.12.2012 2012 IEHC 573
IMMIGRATION LAW
Asylum
Leave - Certiorari - Decision of tribunal - Applications of mother and child - Claims of past rape and murder of brother - Finding of lack of credibility of story - Negative recommendation - Whether adequate consideration to eligibility for protection regulations - Submission that rape constituted âÇÿserious harm' for purpose of regulations - Whether tribunal properly assessed connection between rape and claim for refugee status - Application by minor - Whether child should be permitted asylum application in own right - Whether error in law regarding adverse credibility findings - Oloo-Omee v Refugee Appeals Tribunal [2012] IEHC 455, (Unrep, McEochaidh J, 9/11/2012); I(P) v Minister for Justice and Law Reform [2010] IEHC 368, (Unrep, Clark J, 28/9/2010); R(S) v Refugee Appeals Tribunal [2013] IEHC 26, (Unrep, Clark J, 29/1/2013); R(I) v Refugee Appeals Tribunal [2009] IEHC 353, (Unrep, Cooke J, 24/7/2009) and O(R) v Minister for Justice and Equality [2012] IEHC 573, (Unrep, MacEochaidh J, 20/12/2012) considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 5(2) - Leave refused (2009/273JR - MacEochaidh J - 14/3/2013) [2013] IEHC 108
K (RT) v Refugee Appeals Tribunal
Facts The first named applicant, who was from the Ivory Coast, had sought refugee status in Ireland. The second named applicant was her daughter. The applicant had contended that she feared persecution by the authorities and that the deaths of her father and brother had occurred due to her family”s failure to support the rebel militia. Both the Refugee Appeals Tribunal and the Refugee Appeals Commissioner rejected the claim on the basis that it lacked credibility. It had also been held that the general situation in the Ivory Coast had changed markedly in the meantime which would undermine any fear of returning. On behalf of the applicants it was contended that there had been a failure to properly consider her claim and that her daughter (a minor) was entitled to submit an individual asylum application in her own right. It was also contended that there had been a failure to properly apply the relevant provisions (Reg. 5(2)) of the European Communities (Eligibility for Protection) Regulations, 2006.
Held by Mac Eochaidh J in rejecting the application: No separate argument or independent fear of persecution had in fact been raised or advanced on behalf of the minor and this ground of challenge could not succeed. The findings in relation to the lack of credibility were clear, specific and cogent and rational. It was clear that the Tribunal Member had adequately assessed the DVD evidence that the applicant had produced. A rational and well-reasoned decision had been given by the Tribunal and the court could find no flaws in the conclusions reached in the case. Substantial grounds had not been advanced to justify the grant of leave to seek judicial review.
This is an application for leave to seek judicial review, dealt with in a 'telescoped' manner, in which the applicants are seeking, inter alia, an order of certiorari quashing the decision of the Refugee Appeals Tribunal (the "Tribunal") of 7th January 2009 affirming the recommendation of the Refugee Appeals Commissioner refusing refugee status.
The applicants also seek an order directing the matter to be remitted to the Tribunal and for a de novo hearing before another Tribunal member. Further, the applicants seek a declaration that the second named applicant has an entitlement to submit (and to have considered and determined) an individual asylum application on her own behalf.
The applicants are a mother and daughter from the Ivory Coast. The first named applicant (hereafter the "applicant" or the "mother") claims to be illiterate and was born on 1 st February 1979, while her daughter was born on 31 st May 2002. The applicant arrived in the State on 23 rd May 2005 following the payment of five hundred dollars to an agent who assisted with her travel. Her young daughter was subsequently smuggled into Ireland on 21 st May 2006 following the arrangement of her travel from the Ivory Coast by a family friend.
The applicant makes various claims in support of her application for refugee status. The applicant claims that she was raped by four rebel soldiers during the course of a robbery while she was working in a garage in Abidjan in March 2004. She claims she suffered an ectopic pregnancy arising from the rape, that she required a termination as a result and that she spent some months in hospital recovering. She claims that her brother was a trainee army officer with the government security forces and that he was approached by the rebels to join with them in their cause. When her brother refused to get involved with the rebels, the applicant claims that her family was directly targeted. First, her brother went missing for three weeks before it emerged that he had in fact been killed. The applicant claims that a journalist then came to their house and gave a DVD recording of the killing to her father. The applicant says that the journalist was murdered and, on hearing this news, her father sought to arrange for the entire family to flee. In the course of attempting to organise this escape, the applicant claims her father was also killed and his body dumped at the side of the road.
The applicant stated that she fled from her home and became separated from her mother and daughter. She claims she fled initially by bus to Ghana where she remained working for two months before engaging with an agent who assisted her travel to Ireland in May 2005. On her arrival she made her application for asylum claiming a fear that she would be killed in the Ivory Coast.
The Office of Refugee Applications Commissioner (ORAC) made a negative recommendation on the applicant's claim for refugee status in their report. Her claim was recommended for rejection primarily as there were concerns about perceived inconsistencies and discrepancies in her story which went towards a finding of a lack of credibility. ORAC stated: " The applicant said the reason she left the Ivory Coast was because her brother was killed. She claims rebels killed him because the family refused to join the rebellion. However, some major discrepancies, contradictions and credibility issues again emerge when the account is studied." Following the negative recommendation in respect of the applicant's claim for refugee status, she appealed to the Tribunal and it is that decision which is impugned in these proceedings.
The Tribunal affirmed the recommendation of ORAC and refused the applicant's claim for refugee status primarily on the basis of the lack of credibility of her story. The Tribunal was also of the view that even if it was to accept the credibility of the applicant's claim, the general situation in the Ivory Coast had changed markedly since her departure and would serve to undermine the well-foundedness of any fear the applicant may have of returning.
Some sixteen grounds are raised in the statement of grounds and while various matters are raised in the applicant's written submissions, at hearing counsel for the applicant focused on three grounds of challenge to the decision of the Tribunal and I propose to address each in turn.
Counsel for the applicants contended that the Tribunal Member did not adequately consider or have regard to the provisions of Reg. 5(2) of the European Communities (Eligibility for Protection) Regulations 2006 (the "2006 Regulations") which provides:
" 5. (2) The fact that a protection applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, shall be regarded as a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated, but compelling reasons arising out of previous persecution or serious harm alone may nevertheless warrant a determination that the applicant is...
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