S (H A) v Refugee Appeals Tribunal & Min for Justice
| Jurisdiction | Ireland |
| Judge | Ms. Justice Dunne |
| Judgment Date | 09 December 2009 |
| Neutral Citation | [2009] IEHC 604 |
| Court | High Court |
| Date | 09 December 2009 |
[2009] IEHC 604
THE HIGH COURT
BETWEEN
AND
EDIONEWE v REFUGEE APPEALS TRIBUNAL (O'GORMAN) & MIN FOR JUSTICE UNREP PEART 21.10.2004 2004/17/3915 2004 IEHC 338
DA SILVEIRA v REFUGEE APPEALS TRIBUNAL (HURLEY) & MIN FOR JUSTICE UNREP PEART 9.7.2004 2005/15/3102 2004 IEHC 436
REFUGEE ACT 1996 S13
KIKUMBI v REFUGEE APPLICATIONS CMSR & MIN FOR JUSTICE UNREP HERBERT 7.2.2007 2007 IEHC 11
S (SS) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 14/7/2009 2009 IEHC 329
NGUEDJO v REFUGEE APPEALS TRIBUNAL UNREP WHITE 23.7.2003 (EX TEMPORE)
IMMIGRATION LAW
Asylum
Credibility - Unaccompanied minor - Age of majority reached by time appeal heard -Factors to which regard should be had in assessing applicant - Whether tribunal member in assessing credibility of applicant should have regard to age and psychological state of applicant - Whether weight to be given to evidence exclusively matter for decider of fact - Role of decider of fact - E v Refugee Appeals Tribunal (O'Gorman) [2004] IEHC 338, (Unrep, Peart J, 21/10/2004); Da Silveira v Refugee Appeals Tribunal [2004] IEHC 436, (Unrep, Peart J, 9/7/2004); Kikumbi v Refugee Applications Commissioner [2007] IEHC 11, (Unrep, Herbert J, 7/2/2007), FP v Minister for Justice [2002] 1 IR 164 and Imafu v Minister for Justice [2005] IEHC 416, (Unrep, Peart J, 9/12/2005) considered - SSS v Minister for Justice [2009] IEHC 329, (Unrep, Cooke J, 14/7/2009) applied - Nguedjo v Refugee Appeals Tribunal (Unrep, White J, 22/7/2003) distinguished - Application for leave refused - (2008/887JR - Dunne J - 9/12/2009) [2009] IEHC 604
S (H A) v Refugee Appeals Tribunal & Min for Justice
Facts: The applicant sought judicial review and an order of certiorari in respect of a decision of the respondent where adverse findings as to credibility were made. The applicant arrived in the State as an unaccompanied minor and had stated that she was a member of a minority ethnic clan which had suffered at the hands of another ethnic group. Five specific findings had been made by the respondent with regard to the credibility of the applicant and the age of the applicant, including that the applicant had a vague knowledge of events in Somalia and issues as to the existence of an uncle. The issue arose as to the consideration of the age of the applicant by the respondent. The applicant alleged that any material discrepancies arising related to confusion and that conclusions drawn by the respondent were irrational and in breach of fair procedures.
Held by Dunne J. That there were no material or cogent errors of fact in the findings of the Tribunal member. The findings made were open to the Tribunal member to reach. The Tribunal member had careful regard to the age of the applicant at the time of her application. The applicant had not established careful grounds for arguing the decision of the Tribunal member warranted being quashed. The application for leave would be refused.
Reporter: E.F.
Judgment of Ms. Justice Dunne delivered the 9th day of December, 2009.
The applicant in this case seeks leave to apply for judicial review by way of an order of certiorari quashing the decision of the first named respondent of 28 th April, 2008 as notified by letter dated 13 th May, 2008. The basis of the challenge to the decision is, in essence, an attack on the findings as to credibility of the applicant made by the Tribunal member.
The applicant arrived in this country in August, 2006. She was at the time an unaccompanied minor. She has stated that she is a member of a minority ethnic clan, the Ashraf clan and she stated that she and her family had suffered greatly as a result of that ethnicity at the hands of another ethnic group, the Marehan. She has outlined a series of events in this respect namely:
(1) Her father was killed by the Marehan in November, 2003. She was kidnapped in June, 2002 by members of the militia, taken to a house and detained for two weeks. She was beaten and raped on an almost daily basis. As a result she suffered severe bleeding and became ill. She was then released by her detainees close to home. Her mother looked after her and she did not seek medical attention.
(2) In November, 2003 there was another attempt to kidnap the applicant and her sister. While resisting, her father was shot dead. The family left their home and moved to another part of Somalia to live with an uncle. He died in 2005 and the family returned to their home. In 2006 the applicant was again kidnapped, brought to a storehouse and beaten and raped. She was required to do domestic duties and whilst doing so the militia was attacked. She lay on the ground during the shooting and when it finished, she escaped along with a number of other female detainees. She returned to her home but her family were no longer there. She stayed with a neighbour, who advised her to leave Somalia. Her neighbour gave her some money and advised her to travel to Ethiopia which she did in June 2006. Upon arrival there, she was directed to a woman who lived in Addis Ababa, who was a member of the Ashraf ethnic group. She stayed with that woman for almost four weeks. She informed the woman of the fact that an uncle of hers lived in the United States. The woman had contacts in the United States with other member of the Ashraf clan and after little more than a week, the woman located the applicant's uncle.
(3) The applicant spoke with her uncle on the telephone and requested his assistance. The applicant does not know where her uncle resides in the United States. Her uncle instructed the woman with whom the applicant was residing to organise her travel to the United States and he sent money for the journey. She travelled from Addis Ababa and transited in another country for a brief period of approximately two hours. She travelled in the company of an agent who brought her to Dublin. She was left in Dublin city and has not seen the agent again. She states that she has requested the International Red Cross to trace her uncle, but has not as yet been successful. She then applied to the Refugee Applications Commissioner as an unaccompanied minor for the purpose of seeking asylum.
In the usual way, the applicant filled in a questionnaire and was interviewed. She had the assistance of a social worker as she was an unaccompanied minor. She had reached her majority by the time of the appeal before the first named respondent. It is fair to say that in the course of answering questions on the questionnaire, she indicated that she had not received any formal education. It is also relevant to note that during the asylum application process, she presented in an extremely distressed psychological condition and, indeed, her appeal to the Tribunal was adjourned for a ten month period for that reason. A letter of 18 th January, 2007 from Ms. Ava Veito was exhibited in the applicant's affidavit in which it was stated "due to her extremely distressed psychological presentation she will be unable to cope with an interview situation for the foreseeable future". A further letter of Ms. Ava Veito of 22 nd November, 2007 was exhibited in which the writer stated that "she is now in the position to continue with her interview process for her asylum claim." It was submitted on behalf of the applicant that these were factors to which regard should have been had in the course of assessing the applicant's application. To that extent, reliance was placed on the decision in the case of Edionewe v. Refugee Appeals Tribunal (O'Gorman) and Minister for Justice, [2004] IEHC 338, in which Peart J. stated:
"In relation to the age of the applicant it is true that she was over the age of majority by the time the appeal was heard. Nevertheless she was still illiterate and uneducated. In my view even though she does not come within the U.N. guidelines dealing with the procedures for dealing with unaccompanied minors, February 1997, and which highlight the need to look to "the best interests of the child", this applicant was nevertheless a child in every way except her actual age. She was and still is to a large extent uneducated and illiterate, and in a foreign environment, and particular care is required in dealing with her application, especially from the point of view of the benefit of the doubt and assessment of credibility. I am satisfied that while there is no evidence, nor is it contended, that the appeal was conducted in anything other than a fair manner, nevertheless, the Tribunal member has failed to attach any significance to the evidence of Ms. Hogan or indeed to consider same in any way in relation to the ability of the applicant to properly tell her story."
I accept that a Tribunal member in assessing the credibility of an applicant should have regard to the age of the applicant and the psychological state of the applicant together with any other relevant matter such as education in considering the way in which an applicant tells their personal story. Counsel for the respondents pointed out that in the course of the decision the Tribunal member expressly referred to the age of the applicant and to "the separated children in Europe Programme, Statement of Good Practice" to which reference was made. Indeed, the Tribunal member said that at p. 18 of the Decision as follows:
"Having said that, when considering claims by minors, The Separated Children in Europe Programme, Statement of Good Practice, states at 11.6, in examination of their claims it may be necessary to have greater regard to certain objective factors, and should determine based on these...
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