A (v F A) v Min for Justice & Refugee Appeals Tribunal

JurisdictionIreland
JudgeMr. Justice John Edwards
Judgment Date06 November 2009
Neutral Citation[2009] IEHC 481
CourtHigh Court
Date06 November 2009

[2009] IEHC 481

THE HIGH COURT

[No. 15 J.R./2008]
A (V F A) v Min for Justice & Refugee Appeals Tribunal
JUDICIAL REVIEW

BETWEEN

V.F.A.A.
APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

AND

REFUGEE APPEALS TRIBUNAL
RESPONDENTS

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S11B

REFUGEE ACT 1996 S16(2)

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009 IEHC 353

K (G) & ORS v MIN FOR JUSTICE & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

A (TMA) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 15.1.2009 2009 IEHC 23

DPP, PEOPLE v TIERNAN 1988 IR 250 1989 ILRM 149 1988 DULJ 155 1988/4/1067

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

IMMIGRATION

Asylum

Leave to apply for judicial review - Credibility assessment - Whether finding on credibility fair - Whether tribunal engaged in unfair speculation and conjecture - Applicable principles to review of credibility assessment - Country of origin information - Whether tribunal decision consistent with thrust of county of origin information available - Medical evidence - Misconceptions of country of origin information - Whether decision irrational - Totality of material - Whether material factors discounted - IR v Minister for Justice [2009] IEHC 353 (Unrep, Cooke J, 24/7/2009) and TMAA v Refugee Appeals Tribunal [2009] IEHC 23 (Unrep, Cooke J, 15/1/2009) applied; GK v Minister for Justice [2002] 2 IR 418, [2002] 1 ILRM 401 and People (DPP) v Tiernan [1988] IR 250, [1989] ILRM 149 considered - Refugee Act 1996 (No 17), ss 2, 11B, 13 and 16 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 5 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Leave to apply for judicial review granted (2008/15JR - Edwards - 6/11/2009) [2009] IEHC 481

A (V F A) v Minister for Justice

Facts The applicant sought leave to seek judicial review with the primary objective of quashing a decision of the second named respondent. The applicant submitted that the respondent (amongst other grounds) failed to have proper regard to available country of origin information relating to prison conditions and bribery in Cameroon and the Tribunal member was unfair to the applicant in dismissing the circumstances surrounding the issuing, and the subsequent procurement of a copy, of the arrest warrant submitted by the applicant as not being credible and he was wrong in his assertion that the SDF, legal opposition party in Cameroon, can operate openly and freely in Cameroon. The applicant, a national from Cameroon, claimed asylum on the basis that she has a well-founded of persecution on the grounds of her political opinions (membership of SDF).

Held by Edwards J. in granting leave to apply for judicial review and extending time: the court found that the Tribunal member fully understood the core complaint however the Tribunal member failed to have regard to the country of origin documentation relating to harsh prison conditions in Cameroon and the context of the applicant's claim; that she suffered harassment at prison, her recourse to bribery of the prison guard for the purposes of escaping and her father-in-laws recourse to bribe prison guards of an official to obtain a copy of the warrant so that it could be produced to the Tribunal. Further, the Tribunal member's conclusions appear to be predicated on two significant misconceptions about the country of origin, namely his belief that the SDF can operate openly and freely, and an apparent lack of appreciation of the endemic nature of corruption in Cameroonian Society and the prevalence of bribery within that culture

Reporter: C. O'C

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Judgment of Mr. Justice John Edwards delivered on the 6th of November, 2009

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1. This is an application for leave to apply for an order of certiorari and various other reliefs by way of judicial review with the primary objective of quashing a decision of the second named respondent dated the 12 th December, 2007 in which the second named respondent affirmed an earlier recommendation of the Refugee Applications Commissioner made in accordance with s. 13 of the Refugee Act 1996, as amended ("the 1996 Act") that the applicant should not be declared a refugee. The Tribunal member concluded that the applicant had not established that she has a well-founded fear of persecution as defined by the 1996 Act.

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2. The applicant's background is set out in s. 3 of the Tribunal member's decision as follows:-

"The applicant was born in Cameroon in 1975, is married and the mother of two dependants who are living in Cameroon. After her formal education, she went to Nigeria for two years and on her return, worked for two years. She claims she does not know where her husband is and her two children are catered for by relatives. She claims that when she was nineteen, she joined a party called the Social Democratic Front (SDF) and she was also a member of a separatist group called the Southern Cameroon National Council (SCNC). This latter group is seeking separation from French Cameroon. She did not have a specific post in either of these parties and one of her medical reports indicates that her involvement was at a relatively low level.

She is basing her claim for status on three events in Cameroon. In 1997, she alleges that the SDF, which she joined in 1994, and is a legal opposition party, were celebrating an anniversary. She claims the police intercepted their group and intimidated them and states she suffered a blow to the back of her head and afterwards the rally dispersed. For six years nothing further happened and in 2003 she claims she was in a gathering of 20 - 30 people, who were walking and singing on the day of the funeral of the chairman of the SCNC. They were met by a local police who antagonised them and the crowd reacted. The police arrested the applicant and others and forced them to walk to the local police station which was seven miles away. They were released and warned to discontinue their membership of the SCNC as it was an illegal organisation.

The next event occurred in September, 2004 when the applicant and others were returning from a memorial service for an SDF member. On their way home towards Limbe, they were stopped at a checkpoint because they had emblems of the SDF on their car. The applicant and three other members were taken from the car, arrested and driven to the police station. Four of them were separated and she was stripped to her underwear and isolated in a cell. She was there for three days and on the second day, the security guard said that he could help her to escape when she offered to give him money. However, during the night of second day in detention, another man came into the cell with a gun and raped her. On the third day, the prison guard whom she had an arrangement with opened the window in the cell and she escaped through it. On the outside it was arranged that she would meet a woman who took her to Douala and the applicant stayed with that woman's daughter. The next day, the applicant's father in law rang the house and said that the police had come with a warrant for the applicant's arrest. The applicant and her father in-law decided she should leave the country because of the arrest warrant. The applicant spent two weeks in the woman's house. She left Douala and travelled here via Holland and the U.K. She claims that since she came here, photographs of her injured husband were sent and she submitted them. She claims her husband was beaten up by the State Authorities. When she was pressed further on the whereabouts of her husband, she said that she was told he was hiding in North Cameroon. The applicant submitted a letter from the SDF, a letter from the SCNC and an arrest warrant to support her claims.

The presenting officer referred to the arrest warrant. It states that a complaint was made on 15 th September, 2004 that the applicant had participated in an SDF demonstration. The applicant was asked where she obtained this warrant and she said that her father-in-law bribed the police officer to obtain it."

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3. The applicant is now in Ireland and has sought asylum here on the basis that she has a well-founded of persecution on the grounds of her political opinions. Her case was considered by the Refugee Applications Commissioner who concluded that the applicant's claim of having suffered persecution in Cameroon lacked credibility in a number of aspects. In particular, the commissioner was of the view "that the applicant had failed to credibly show overall that she would be targeted for persecution". The commissioner stated that from an investigation of the applicant's account, it did not appear that the applicant qualified for refugee status. The possibility that she would suffer persecution on return to Cameroon appeared to be negligible. In all the circumstances the commissioner recommended that the applicant should not be declared a refugee on the basis that she had failed to establish a well-founded fear of persecution in accordance with s. 2 of the 1996.

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The applicant duly appealed against the s. 13 report and recommendation of the refugee applications commissioner to the Refugee Appeals Tribunal.

6

4. The substantive portion of the decision rendered by the Tribunal member are set out in Parts 6 and 7, respectively, under the headings "Analysis of the Applicant's Claim" and "Conclusion". It is appropriate to recite it in full:-

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2 "6. Analysis of the Applicant's Claim

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The applicant presents as articulate, competent, educated and well able to communicate without the assistance of an interpreter. She claims that because of her association with the SCNC and the SDF she was subject to persecution in Cameroon. She stated in 1997 that a riot broke when the police intercepted a rally and she received a...

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