O (S) and Others v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards,Mr. Justice Cooke
• Judgment Date: 01 October 2010
• Neutral Citation: [2010] IEHC 343
• Court: High Court
• Date: 01 October 2010

O (S) v Min for Justice & Refugee Appeals Tribunal (O'Gorman)

JUDICIAL REVIEW

BETWEEN

S. O. (A MINOR SUING BY HIS NEXT FRIEND M. O.)

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND MICHELLE O'GORMAN, REFUGEE APPEALS TRIBUNAL

RESPONDENTS

[2010] IEHC 151

[No. 1535 J.R./2007]

THE HIGH COURT

IMMIGRATION

Asylum

Credibility - Fear of persecution - Country of origin information - Age and maturity - Absence of country of origin information - Benefit of doubt - Whether sufficient regard paid to age of applicant - Whether duty to apply liberal benefit of doubt given age and maturity of applicant - Decision based on conjecture and speculation in absence of country of origin information - Consideration of subjective credibility required given absence of country of origin information - European Council Resolution 26/06/1997 (97/C 221/03) - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 5(1)(c) - United Nations Convention on Rights of Child 1989, art 3 - Zhuchkova v Minister for Justice, Equality and Law Reform [2004] IEHC 404, (Unrep, Clarke J, 26/11/2004) followed - Certiorari granted (2007/1535JR - Edwards J - 05/02/2010) [2010] IEHC 151

O(S) (a minor) v Minister for Justice, Equality and Law Reform

Facts The applicant was an Afghani applicant who arrived in Ireland as an unaccompanied minor and sought refugee status on the basis of a fear of persecution by both the government of Afghanistan and by the Taliban. The respondent refused the applicant's application for refugee status ruling that both aspects of his claim were neither credible nor well-founded. The applicant sought to challenge the respondent's decision by way of judicial review on the grounds that the respondent paid insufficient regard to his young age in assessing his claim and also failed sufficiently to apply a liberal benefit of the doubt having regard to the applicant's age. The respondent relied on country of origin information in arriving at her conclusion and found that the applicant's fear was neither credible nor well-founded. In relation to the applicant's fear of the Taliban the respondent stated that it was difficult to understand what use he would have been to the Taliban and was difficult to understand why the Taliban would warn him that he would be taken by force and why the applicant did not inform the Government of his difficulties.

Held by Edwards J. in granting the relief sought: That the challenge to the respondent's decision regarding the applicant's claimed fear of persecution by the Government was not made out. However, the respondent's decision with respect to the applicant's claimed fear of persecution by the Taliban was largely based on speculation and conjecture. No country of origin information was called in aid to support the decision and the respondent failed to engage wit the applicant's express worries. The respondent should not have speculated or engaged in conjecture but rather should have proceeded to consider the applicant's subjective credibility and in so doing was required to liberally apply to the applicant the benefit of the doubt having regard to his age and immaturity. The applicant was not afforded a fair hearing in all the circumstances of this case.

Reporter: L.O'S.

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S16(2)

REFUGEE ACT 1996 S11

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)(C)

UN CONVENTION ON THE RIGHTS OF THE CHILD ART 3

UNHCR GUIDELINES ON POLICIES & PROCEDURES IN DEALING WITH UNACCOMPANIED CHILDREN SEEKING ASYLUM PARA 8.6

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PARA 219

ZHUCHKOVA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 26.11.2004 2004/51/11705 2004 IEHC 414

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL (HURLEY) & MIN FOR JUSTICE UNREP HIGH PEART 9.7.2004 2005/15/3102 2004 IEHC 436

1 JUDGMENT of Mr. Justice Edwards delivered the 5th day of February, 2010

Introduction

2 The applicant in this matter was born on the 1 ^st January, 1993 and accordingly is now seventeen years of age. He is an Afghani national. He arrived in Ireland in December, 2006 as an "unaccompanied minor" and sought refugee status. He is currently in the care of his brother, M. O., who has been recognised as a refugee by the respondent. The applicant sought asylum status on the basis of a fear of persecution both by the Government of Afghanistan and by the Taliban. His application for asylum was considered in the first instance by the Refugee Applications Commissioner who ruled that the applicant had failed to establish a well-founded fear of persecution in accordance with s. 2 of the Refugee Act, 1996 (as amended) and recommended that the applicant should not be declared a refugee. The applicant appealed against the Commissioner's s. 13 report and recommendation to the Refugee Appeals Tribunal. In a decision dated the 20 ^th September, 2007, the tribunal member ruled that both aspects of the applicant's claim were neither credible nor well-founded and, accordingly, pursuant to s. 16(2) of the Refugee Act 1996 she affirmed the recommendation of the Refugee Applications Commissioner made in accordance with s. 13 of that Act.

3 On 11 ^th February, 2009 the applicant applied for, and was successful in obtaining, an order of the High Court granting him leave to apply by way of application for judicial review for various reliefs as set forth in his draft statement of grounds including an order of certiorari quashing the decision of the second named respondents to reject the applicant's refugee appeal, which said decision was issued to the applicant on 23 ^rd October, 2007. The grounds upon which the applicant successfully obtained leave were-

4 (i) that the tribunal member paid insufficient regard to the young age of the applicant in assessing his claim; and

5 (ii) the tribunal failed sufficiently to apply a liberal benefit of the doubt having regard to the applicant's age.

Background Facts

6 The applicant is a Pastun and practices the Muslin faith. He was born in Baghlan Afghanistan. He had two bothers and a sister. He stated at interview that he had no specific education and that he studied with his mother and brother. His mother, sister in law and nephew are in Afghanistan and he has no contact with them. The applicant claims that his father had been a member of Hizb-e-Islami and he was killed by the Hazara people in 1997. He further claims that one brother, R., who was not a member of a political party, was killed by the Hazara in 2000. His other brother M. left Afghanistan in 2001 as his life was in danger. His uncle also left at this time. His uncle returned in 2002 and with his help the family moved to Kondoz. His uncle was a commander in the Taliban at the time. The applicant also claims that his uncle was arrested at the end of 2003 by the new Government of Afghanistan because of his activities with the Taliban. The applicant claims that his uncle was held in prison and was killed there by officers of the Government in 2006, with his body being released to his family. The applicant claims that in 2004 the Taliban contacted him and said that they wanted him to fight against the Government of Afghanistan. The applicant claims that the Taliban came a number of times to him to get him to join them, but he refused their requests. However, the applicant claims that in 2006 after his uncle was killed, they came back to the applicant and they told him that he could not refuse anymore and that they next time they returned they would take him by force. The applicant believes that the Taliban wish to deploy him as a child soldier or possibly as a suicide bomber. He said in the course of his section 11 interview, "They wanted to give me training to prepare for a suicide bombing and I didn't like to kill someone". The applicant also claims that the Government were aware of the Taliban's attempts to get him to join their organisation. He says that representatives of the Government came to his house and threatened him. He was told that if he had contact with the Taliban, he would be killed and put in jail. His mother then decided that he should leave the country and she asked his maternal uncle for help. He was taken by truck to Pakistan and remained there for two weeks. He later travelled to Ireland via Dubai and an unknown country in which he spent about four months. The applicant claims that if he was to return to Afghanistan, the Government would regard him as a member of the Taliban and the Taliban would think that he works for the Government.

The Decision

7 The Tribunal member analysed the applicant's claim in the following way:

"Country of origin information on file states that low profile or ordinary members of the Taliban generally do not face problems when integrating into society and that at the present time there is very little persecution of Taliban supporters (UK Home Office Report, April 2006). The Operational Guidance Note (April 2007) states that former members of the Taliban do not have difficulties with the current administration so long as it is clear that they are no longer associated with the Taliban. Former Hizb-e-Islami supporters do not have any difficulty with the current regime and a number of former Hizb-e-Islami supporters hold prominent positions in Hamid Karzai's Government. The applicant is not a member of the Taliban and refuses to join this organisation. The applicant stated that he did not inform the Government that he was refusing to join the Taliban as the Government was his enemy. Considering that the applicant claims that the Government was apparently watching the applicant, accusing him of being involved with the Taliban and the Government's attitude towards the Taliban, it...