V.M v Refugee Appeal Tribunal and Others

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M. CLARK
• Judgment Date: 29 January 2013
• Neutral Citation: [2013] IEHC 24
• Court: High Court
• Date: 29 January 2013

[2013] IEHC 24

THE HIGH COURT

Record No. 156 J.R./2009

M (V)[Kenya] v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

Between:/

V. M.[KENYA]

APPLICANT

-AND-

THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

RSC O.84 r24(2)

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(6)(A)

EEC 2004/83

REFUGEE ACT 1996 S13(6)

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

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

REFUGEE ACT 1996 S16(6)

M (M) v MIN FOR JUSTICE & ORS UNREP ECJ 26.4.2012 (CASE NO C-277/11)

M (M) v MIN FOR JUSTICE (NO.3) UNREP HOGAN 23.1.2013 2013 IEHC 9

IMMIGRATION LAW

Asylum

Judicial review - Applicant exposed to activities of sect in Kenya - Applicant asserting fear of persecution - Respondent finding that applicant not at risk from sect - Whether decision irrational - Whether breach of fair procedures - Whether breach of duty - Certiorari granted, matter remitted to respondent (2009/156JR - Clark J - 29/1/2013) [2013] IEHC 24

M(V) (Kenya) v Refugee Appeals Tribunal

Facts The applicant had applied for asylum and had been refused. The applicant"s claim for asylum had been based on fear of persecution by the Mungiki who were an illegal organisation in Kenya. It had been contended that he had been pressurised to join the cult and that people who had attempted to leave the cult had been killed. On behalf of the applicant it was contended that the respondent in rejecting his application had ignored up to date country of origin information in favour of more out-of-date information. The findings were unreasonable and had been arrived at in breach of the Refugee Act, 1996. In addition it was submitted that the conclusions on the adequacy of state protection were not rationally drawn from the bulk of the country of origin information which was available. The applicant had not been afforded an opportunity to address certain propositions and irrational findings had been made.

Held by Clark J in quashing the decision of the respondent: The Tribunal Member appeared to have completely ignored the evidence regarding the family background of the applicant in relation to the cult. In addition certain findings made by the Tribunal member could not be upheld. In drawing conclusions as to the protection available to the public from the Mungiki the Tribunal Member had not focused on people who had defected from them. While there could not be an objection to a Tribunal relying on decision of other member states of the EU there was a requirement to have regard to all relevant facts as they relate to the country of origin at the time of taking a decision and relevant statements and documentation presented by the protection applicant.

1 1. This is a case which has been affected by quite extraordinary periods of delay. The applicant first applied for asylum as a seventeen year old child in May 2003. Almost ten years later, he still has no decision on his status as the Court quashed the Tribunal's appeal decision on the 13 ^th December 2012. This judgment sets out the reasons for thatdecision.

2 2. The Court welcomes the cooperation of both parties who on the day of the hearing consented to the application for leave being treated as if it were the hearing of the application for judicial review in accordance with Order 84, rule 24(2) RSC. Thus in some small way the delays which have befallen the applicant were minimised in the hope that due expedition will follow henceforth. Mr Michael Lynn B.L. appeared for the applicant and Ms Fiona O'Sullivan B.L. for the respondents.

Background

3 3. The applicant's asserted fear of persecution if returned to Kenya is that as a person who was exposed to Mungiki activities and who fled while in the process of unwilling induction into that cult, he would be considered a defector or traitor and therefore liable to punishment and death. He also fears that he will be forced to join the Mungiki who are an illegal organisation in Kenya and that he will be unable to escape a life of slavery to their ideology.

4 4. He described his particular exposure to the Mungiki during his upbringing by his father and older brother who are members of the Kikuyu based cult. When he was nine, his father insisted that the applicant's mother and his sister should undergo female circumcision in accordance with the Mungiki quasi-tribal religious beliefs. They refused and fled leaving him in the care of his father who thereafter groomed him for membership. The family had originally been Christian and although the applicant attended a Christian school he was not permitted to attend church services. He provided information relating to his observance of his father's activities in the cult, of his attendance at meetings and awareness of the cult's increasing involvement with crime, extortion and violence towards opponents. He was frequently beaten when his father had been drinking local liquor or taking drugs approved by the Mungiki. Matters came to a head in 2002 when he was sixteen and his father insisted that he finish school and join the sect. He had no desire to be initiated but his father and brother insisted that he should join. The first step towards initiation was circumcision. His father hit him and shamed him into submission and he was circumcised. He reported this action to the police in November 2002 but no action was taken. He then ran away from home and went to live with a school-friend for six months. His friend's father was a pastor. When they believed that the applicant's father would find him, the pastor arranged his travel to Ireland.

5 5. Record numbers of asylum applications were made in Ireland in 2002 and 2003 which probably explains the eleven-month delay before the applicant's s. 11 interview took place in July 2004. In any event, when he was eventually interviewed he expanded on his fear of the Mungiki. He explained that while the members who were his father's friends never actually abused him he was frequently warned of the consequences of leaving the Mungiki, as such persons were considered as traitors and were tortured and killed. He explained that when the time came for him to take the oath to join the Mungiki, he knew that once he was initiated he could never go back or leave as if he did, he would be treated as a traitor. His primary claim was that although the organisation was illegal, the State would be unable to protect him from such punishment.

6 6. Relying on three country reports which outlined the diligence of Kenyan authorities in pursuing the Mungiki, the Refugee Applications Commissioner determined that the applicant's claim that state protection was not available could not be sustained.While accepting that such protection was not perfect he held that "there is a definite willingness to meet the challenge posted by the Mungiki to the State". Having found that state protection was available or alternatively internal relocation to a non-Kikuyu area was a reasonable alternative to flight, the Commissioner applied s. 13(6) (a) of the Refugee Act 1996. This was a finding that the applicant showed either no basis or a minimal basis for the contention that he is a refugee which had the effect that any appeal would be determined without an oral hearing. The decision to refuse an oral appeal was not judicially reviewed and the applicant's solicitors lodged an appeal in November 2004.

The Appeal

7 7. The applicant's written notice of appeal addressed all the findings made in the s. 13 report. Extensive additional information was provided which specifically addressed the contested finding that effective state protection was available, including several Kenyan newspapers reports from 2004 which outlined a series of revenge killings of Mungiki defectors, would-be defectors, former insiders and former members of the organisation. The appellant's doctor also furnished a letter confirming that he had been circumcised.

8 8. The first Tribunal decision was vacated and the appeal was remitted for fresh consideration by another Tribunal Member. That new Tribunal Member wrote to the applicant's solicitor in November 2006 indicating that she considered the country of origin information (COI) on file to be outdated and she wished to put the appellant on notice of more recent and relevant reports on the availability of state protection from Mungiki activities. Those reports were two UK Immigration Appeals Tribunal decisions dated 2002 and 2004 1 and a 2005 Canadian IRB report 2. The applicant's solicitor sought clarification on which parts of the appellant's reports were considered to be outdated and submitted that the UK decisions could not be considered as COI. In further correspondence dated 16 ^th December 2006 and 4 ^th January 2007, the applicant's solicitor furnished extracts from nine COI reports relating to the criminal activities of the Mungiki

and the growing inability of the Kenyan authorities to prevent their activities notwithstanding the government's determination to wipe out the organisation. All of these reports were sourced by the Refugee Documentation Centre (RDC). The applicant's solicitor also quoted extracts from three of seventeen attached Tribunal decisions which were said to specifically address findings on the strength of the Mungiki and the ineffectiveness of police action to protect those who had defected from the organisation. In each case the asylum applicant had been successful on appeal on this very issue.

9 9. Nothing further was heard until a year later on 8 ^th January 2008 when the applicant's solicitor enquired when the decision would be forthcoming. In a reply received from the Tribunal on 5 ^th August 2008, the applicant's solicitor was informed that the Tribunal Member was unable to locate certain documents furnished by...