S (A) and Others v Refugee Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | MS JUSTICE M. CLARK, |
| Judgment Date | 05 June 2013 |
| Neutral Citation | [2013] IEHC 249 |
| Court | High Court |
| Date | 05 June 2013 |
[2013] IEHC 249
THE HIGH COURT
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5
IMMIGRATION ACT 1999 S11
A (MAM) v REFUGEE APPEALS TRIBUNAL & ORS UNREP 2011 2 IR 729
KARANAKARAN v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2000 3 AER 449
MIN FOR IMMIGRATION & MULTICULTURAL AFFAIRS v RAJALINGAM 1999 FCA 719
DA SILVEIRA v REFUGEE APPEALS TRIBUNAL (HURLEY) & MIN FOR JUSTICE UNREP PEART 9.7.2004 2005/15/3102 2004 IEHC 436
IMMIGRATION LAW
Asylum
Application for judicial review - Decision refusing appeal against negative recommendation - Credibility rejected as new evidence adduced on appeal - Whether reasonable to expect applicant to relocate internally - Fear of persecution based on religious conversion and extra-marital relationship - Whether information elicited on appeal new evidence or mere expansion of claim - Absence of assessment of future risk of persecution - Absence of consideration of fears for future - Absence of clarity regarding acceptance of religious status - Whether rejection of narrative of past persecution obviates need for forward looking test of prospective risk - Da Silveira v RAT [2004] IEHC 436, (Unrep, Peart J, 9/7/2004); Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449; MAMA v Refugee Appeals Tribunal [2011] IEHC 147, [2011] 2 IR 729 and Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 followed - Imafu v The Refugee Appeals Tribunal [2005] IEHC 416, (Unrep, Peart J, 9/12/2005) not followed - Certiorari granted; claim remitted to decision maker (2009/468JR - Clark J - 5/6/2013) [2013] IEHC 249
S(A) v Refugee Appeals Tribunal
Facts: The applicants were a mother and her two children who arrived in Ireland from Nigeria in November 2007 and applied for refugee status upon entering the country on the ground of her being in fear of serious harm and persecution if they were returned to her native country. It was the first named applicant"s contention that she was targeted by her local Muslim community as she was a Muslim who had had an extra-marital affair with a Christian man that led to the pregnancy and birth of the third named applicant. She alleged that she had been married to a fellow Muslim in October 2001, which gave rise to the birth of the second named applicant in 2004. However, she stated he had left the family without warning in 2005, and after a significant amount of time she began a relationship with the Christian man, though she was still technically married. She claimed that this resulted in a campaign of persecution on her by her fellow Muslims and fears that her children would be taken from her. She further claimed that she was targeted because she had shown a willingness to convert to Christianity, something she eventually completed whilst in Ireland.
The application for refugee status was rejected by the Refugee Applications Commissioner on the basis that a well founded fear of persecution if returned to Nigeria had not been established. It was held that by the first applicant"s own account, there was only one instance of her being physically harassed (a minor stone throwing incident) and the threat expressed in relation to her children seemed to lack credibility. An appeal was launched which was similarly rejected before the Refugee Appeals Tribunal on the basis of negative credibility findings, most of which was related to the fact that the evidence the first applicant offered in relation to the events of her pregnancy seemed to be inconsistent with her initial application. An application for judicial review was made with the applicants argued that there were no inconsistencies, and the new evidence that had been presented on appeal should have been regarded as an expansion of the details of the initial claim. It was further argued that the Tribunal had failed to assess whether there was a fear of serious harm if the applicants were returned to Nigeria because of the first applicant"s conversion from Islam to Christianity.
Held by Clarke J that it was clear that the first applicant"s evidence went beyond an expansion of her initial claim, even if the court agreed with her that the initial interview was defective. It had initially been claimed that instances of physical violence against her was limited to one instance of stone throwing. However, she then claimed for the first time on appeal that she had been targeted by the Muslim Women"s Association and then actually stripped and flogged by them. If this had occurred, the court would have expected such a significant event to have been part of the initial application for asylum. It was therefore held that the Refugee Appeals Tribunal had been entitled to draw negative credibility findings on that basis.
On the applicants claim that the Tribunal had not assessed whether there was a risk of serious harm if they were deported as a result of the first applicant"s conversion to Christianity from Islam, it was held that the applicants" future fears were not given proper consideration. It was clear from the country of origin information that under Sharia law, which was in force in the area in which the first and second applicants had fled, extra-maritial relationships were strictly forbidden and could lead to a sentence of death. It was further noted that converting from the Islam relationship potentially carried a similar punishment. However, none of these points were addressed by the Tribunal in relation to the applicants account. As it was an obligation of the Tribunal to apply a forward looking test of prospective risk, the appeal was allowed on this point and remitted for further consideration.
Decision of Refugee Appeals Tribunal quashed. Matter remitted.
The applicants, a mother and her two children, are nationals of Nigeria. The mother, Ms A.S., will be referred to as "the applicant". They challenge the decision of the respondent Tribunal dated the 13 th March, 2009, refusing their appeal against the negative recommendation of the Refugee Applications Commissioner. By agreement, the application for leave was treated as the application for judicial review by way of a telescoped hearing which took place on the 19 th March, 2013. Mr Robert Haughton S.C. and Mr Garry O'Halloran B.L. appeared for the applicants and Ms Catherine Duggan B.L. appeared for the respondents.
The Tribunal decision was notified to the applicant by letter dated the 22 nd March, 2009, and she claims that it was received on the 30 th March, 2009. The applicant requires a two-week extension of time as the proceedings were commenced outside of the time limit established by s. 5 of the Illegal Immigrants (Trafficking) Act 2000. Having heard submissions from the applicant, the Court was prepared to accept that the short delay was adequately explained and extended the time to commence proceedings.
3.The primary negative finding made in the Tribunal decision under challenge was thatmuch of the applicant's evidence at the oral appeal hearing was new evidence and thus hercredibility was rejected. The Tribunal went on to find that even though she did not acceptthat the applicant's allegations were legitimate, it was reasonable to expect her to relocateinternally within Nigeria.
Mr Haughton SC invited the Court to examine whether the information elicited at the appeal hearing was actually new evidence as opposed to a mere expansion of the details of the applicant's claim. He directed the Court's attention to the very short record of the applicant's s. 11 interview which he described as having been conducted in a slipshod manner where the Commissioner's authorised officer directed the applicant to answer the questions directly as posed but no follow-up questions were asked even when required. While it was accepted that every page of the short interview had been signed by the applicant there was a distinction between signing each page and having each page of the interview read back which he asserts did not happen. In the circumstances of the conduct of the s. 11 interview, the finding that most of the information was new could not be said to be grounded on a sufficiently solid basis.
Mr Haughton further argued that apart from accepting the applicant's nationality there was no positive finding on her claim. For instance, no finding was made as to whether she was Hausa or as to whether she had been Muslim and was now Christian. The Tribunal did not address the fundamental question of whether on return to Nigeria she would be at risk of persecution for a Convention reason, in light of what is known about her. Reliance is placed on the judgment of Cooke J. in M.A.M.A. v. The Refugee Appeals Tribunal [2011] IEHC 147, in which this Court granted leave and in which the Tribunal's decision was quashed as there was no assessment of future risk to the applicant. In the applicant's submission, the same principle applies in this case as no basic findings were made and no forward-looking test was applied.
It was further submitted that the internal relocation finding was unlawful on the basis that the Tribunal Member failed to consider the applicant's personal circumstances in relation to her problems with Sharia law, whether the federal courts apply Sharia law on appeal from decisions of Sharia courts, whether the applicant's conversion from Islam to Christianity (which is proscribed under Sharia...
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