A (A)[Somalia] v Min for Justice & Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Mr. Justice Ryan |
| Judgment Date | 05 November 2010 |
| Neutral Citation | [2010] IEHC 504 |
| Court | High Court |
| Date | 05 November 2010 |
[2010] IEHC 504
THE HIGH COURT
BETWEEN
AND
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5
REFUGEE ACT 1999 S5
REFUGEE ACT 1996 S16(8)
N (M) v REFUGEE APPEALS TRIBUNAL (MCHUGH) & ORS UNREP COOKE 1.7.2009 2009/41/10348 2009 IEHC 301
J (A M S) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP BIRMINGHAM 18.5.2010 2010 IEHC 188 2010/24/5898
ADAN v SECT OF STATE FOR THE HOME DEPT 1998 2 WLR 702
REFUGEE ACT 1996 S11A(3)
REFUGEE ACT 1996 S17(7)
REFUGEE ACT 1996 S2
IDIAKHEUA v MIN FOR JUSTICE & ORS UNREP CLARKE 10.5.2005 2005/31/6357 2005 IEHC 150
REFUGEE ACT 1996 S11
REFUGEE ACT 1996 S2
IMMIGRATION
Asylum
Country of origin information - Changing conditions - Insufficient information - Reluctance of tribunal member to make decision in light of changing conditions - Persecution - Breach of fair procedures - Failure to put country of origin report to applicant - Failure to properly assess situation in Somalia - Treatment of issue of gender - Whether substantial grounds for review - Onus on applicant to show women in Somalia recognised as particular social group - Failure to discharge onus - Addition of grounds of review by court - Making of decision when belief that insufficient information available - Whether good and sufficient reason for extending time for review - N v Refugee Appeals Tribunal [2009] IEHC 301, (Unrep, Cooke J, 1/7/2009); J(AMS) v Minister for Justice, Equality and Law Reform [2010] IEHC 188,. (Unrep, Birmingham J, 18/5/2010); Adan v Secretary of State for the Home Department [1998] 2 WLR 702 and VI v Minister for Justice, Equality and Law Reform [2005] IEHC 150, (Unrep, Clarke J, 10/5/2005) considered - Refugee Act 1996 (No 17), s 16 - Leave granted (2008/626JR - Ryan J - 5/11/2010) [2010] IEHC 504
A (A) v Minister for Justice, Equality and Law Reform
Persecution - Changing conditions - Reluctance of tribunal member to make decision in light of changing conditions - Breach of fair procedures - Failure to put country of origin report to applicant - Failure to properly assess situation in Somalia - Treatment of issue of gender - Whether substantial grounds for review - Onus on applicant to show women in Somalia recognised as particular social group - Failure to discharge onus - Addition of grounds of review by court - Making of decision when belief that insufficient information available - Whether good and sufficient reason for extending time for review - N v Refugee Appeals Tribunal [2009] IEHC 301, (Unrep, Cooke J, 1/7/2009); J(AMS) v Minister for Justice, Equality and Law Reform [2010] IEHC 188,. (Unrep, Birmingham J, 18/5/2010); Adan v Secretary of State for the Home Department [1998] 2 WLR 702 and VI v Minister for Justice, Equality and Law Reform [2005] IEHC 150, (Unrep, Clarke J, 150) considered - Refugee Act 1996 (No 17), s 16 - Leave granted (2008/626JR - Ryan J - 5/11/2010) [2010] IEHC 504
A (A) v Minister for Justice, Equality and Law Reform
JUDGMENT of Mr. Justice Ryan delivered the 5th November 2010
1. This is an application for leave to bring judicial review proceedings of a decision of the Refugee Appeals Tribunal that the applicant should not be declared a refugee. These proceedings were issued approximately one month outside the statutory time limit. I am satisfied that the applicant formed the intention to appeal within the statutory period and has provided a reasonable explanation for the delay. In the circumstances I consider that there is good and sufficient reason for extending time in accordance with s. 5 of the Illegal Immigrants (Trafficking) Act 2000.
2. The applicant, a national of Somalia, was born in Mogadishu in 1968. She claims that if returned to Somalia she would be at risk of death, rape and other persecution by armed groups, on account of her being a member of a minority clan and because of her past activities in campaigning against the practice of female genital mutilation (FGM). According to her narrative, she is a member of the minority Reer Hamar clan. She and her family were subjected to various verbal and physical attacks by local fundamentalist groups, mainly of the Habir Gadir clan (which in turn forms part of the larger Hawiye clan). In July 2002 one of the members of the applicant's anti-FGM group, a fellow Reer Hamar, was killed. The applicant herself was threatened with rape and murder. She fled Somalia in January 2003 and travelled to Ireland via Kenya.
3. The applicant arrived in the State on the 28 th February, 2003 and applied for asylum. The Refugee Applications Commissioner issued a negative recommendation in respect of the applicant. She appealed to the Refugee Appeals Tribunal and an oral hearing took place before the Tribunal on the 22 nd June, 2006. The Tribunal did not make a decision for some 21 months after the date of hearing and only after mandamus proceedings had been brought by the applicant. The applicant has not pleaded delay as a ground of relief but time is nevertheless of importance in the case. The Tribunal Member explained in her decision that she deliberately held off making the decision because of the changing, volatile conditions in Somalia. She would have waited longer if she could but the applicant brought mandamus proceedings and her "hand was forced". She therefore reluctantly came to a conclusion on the basis of the available information, even though that was insufficient and unsatisfactory.
The Tribunal Member referred at several places to the delay in making her decision:-
"The sole issue in my view is whether this applicant is at risk in Somalia by virtue of her ethnic grouping, being a member of the Reer Hamar ethnic group. The country of origin information available prior to the take over by the Islamic Courts was to the effect that the Reer Hamar did not benefit from any majority clan protection. Since then the situation has changed dramatically, for this reason the Tribunal Member held off making a decision in circumstances where the information available showed that circumstances in the applicant's country were changing day by day. However given that the applicant instituted judicial review proceedings, the Tribunal Member was forced to come to a decision regardless of the concern that arises in relation to the tenuous peace." [italics added]
4. The Tribunal Member said that the country of origin information disclosed that the situation in Somalia was "one of chaos" and she concluded her review of the conditions in reference to the applicant's claim as follows: "The situation may indeed change within the near future and given the volatility of the situation I had felt it unfair to make a decision in this applicant's case in circumstances where the COI did not support a claim of persecution based upon membership of her clan given the intervening occurrences, however as my hand has effectively been forced, and given that I must make the decision based upon the COI available at the time of making the decision I have no alternative but to conclude that there is no objective basis to support a conclusion that the applicant would face persecution for a Convention reason if returned to her country of origin." The Tribunal Member was sympathetic to the applicant, describing her as a "well educated, intelligent young woman" who struck her as a "credible witness". She also said
"Of course there are good reasons why no one should be returned to Somalia given the current precarious situation that appears by all accounts to affect everyone, however that is not my decision, I conclude that the grounds for showing that the applicant is a refugee are not shown here."
This is a reference to subsidiary protection available under S.I. 518/2006 for persons who are at real risk of serious harm and the prohibition on non-refoulement in s.5 of the Refugee Act, 1999.
5. The Tribunal Member did not want to make a decision. She felt coerced into doing so at a time when it was unfair to the applicant. The situation was changing day by day. What does that say about the decision? This it is a significant feature in the case and it cannot be ignored. I do not think that either the applicant or the Tribunal Member is to be blamed. The applicant did not know the reason for the delay and she and her advisers were impatient for a decision. The fact that they sought an order of mandamus was understandable in the circumstances. In fact, the delay was explained in the Tribunal's decision. It does not matter for the present consideration whether the Tribunal Member behaved reasonably or the applicant was justified in the course she pursued. The point is that the decision maker felt compelled to make a decision at a time when she thought it was unfair to the applicant and when she herself did not want to do so. The decision-maker frankly expressed herself as she did saying that he was not in a position where she felt able to reach a proper decision on the important questions before her. This is the context in which the application for leave has to be assessed.
6. A decision has to be made on the evidence and in a country situation which is fluid and dangerous, that is the context of the consideration of the application. If it is impossible to establish what conditions are in the country of origin, that is the situation to be considered. The reasons why it is impossible will influence the decision. Decisions have to be made on the evidence that is available, even if one might hope that something better or more solid would turn up in future.
7. The Tribunal Member summarised country of origin information about events in Somalia that had transpired over the...
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