E. (E.) v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 24 March 2010
• Neutral Citation: [2010] IEHC 135
• Date: 24 March 2010
• Court: High Court
• Docket Number: [No. 323 J.R./2008]

[2010] IEHC 135

THE HIGH COURT

[No. 323 J.R./2008]

E (E) v Refugee Appeals Tribunal & Min for Justice

BETWEEN

E. E.

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S13

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

S (DVT) v MIN FOR JUSTICE & ORS 2008 3 IR 476 2007/54/11621 2007 IEHC 305

A (MI) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP HEDIGAN 29.10.2008 2008/1/91 2008 IEHC 336

IMMIGRATION

Asylum

Leave - Country of origin information - Duty of Tribunal in assessing claim - Assessment of country of origin information - Failure to consider UNHCR Handbook guideline - Role of Court - Whether selective reliance on country of origin information by Tribunal substantial ground - Whether failing to consider UNHCR guideline substantial ground - S(DVT) v Minister for Justice, Equality and Law Reform [2007] IEHC 305 (Unrep, Edwards J, 4/7/2007); O(H) v Refugee Appeals Tribunal [2007] IEHC 299 (Unrep, Hedigan J, 19/7/2007) and A(MI) v Refugee Appeals Tribunal [2008] IEHC 336 (Unrep, Hedigan J, 29/10/2008) approved - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Leave refused (2008/323JR - Cooke J - 24/3/2010) [2010] IEHC 135

E(E) v Refugee Appeals Tribunal

Facts the applicant sought leave to seek judicial review of the decision of the respondent refusing her appeal against the recommendation of the Refugee Applications Commissioner that she not be recognised as a refugee on the ground that the respondent had erred in making adverse findings as to the applicant's credibility and that it had erred in assessing the claim by selective or partial reliance on country of origin information. It was contended that the applicant would be in a worse position as a HIV sufferer than other Nigerians in her situation by virtue of the fact that she would be returning from abroad and that contention was supported by the country of origin information before the respondent, which it disregarded or distorted.

Held by Mr. Justice Cooke in refusing leave to seek judicial review:

1. that it was for the Tribunal to weigh and assess relevant information drawn from country of origin documentation and to decide what value or weight should be accorded to various parts of it, having regard, inter alia, to its relevance, the authoritative quality of its source, its apparent reliability. As with issues of credibility, the Court could not substitute its own assessment of that information but should intervene to disturb a decision based upon an assessment of country of origin information only where it was shown that some fundamental mistake had occurred in the use or interpretation of the available information or where the conclusion reached was manifestly at variance with the content and obvious effect of the documentation.

There was no distortion or disregard of the country of origin information such as rendered unsustainable the respondent's view that the applicant would be in no worse position as a HIV sufferer than other Nigerians in her situation by virtue of the fact that she would be returning from abroad.

2. That country of origin information should not be approached as a court might approach testimony advanced to prove or disprove particular facts such that where a conflict arose between the testimony of two witnesses, the Court was required to resolve that conflict.

Reporter: P.C.

JUDGMENT of

Mr. Justice Cooke

1 In this case, the circumstances out of which the applicant's claim for asylum arises are not in dispute. She was trafficked to Ireland as a 16-year old girl by a woman she calls "Christy" or "Christina", who, she says, was known to her parents in Benin in Nigeria. Shortly after her arrival here in late 2006, she was found by the gardaí in a house in Sligo which the gardaí suspected was being used as a brothel. She was placed in a hostel in Dublin by the HSE. While there, an incident occurred in which a number of women called to see her and told her that the woman, Christina, wished to speak with her. According to a social worker, the applicant has since, on a number of occasions, gone missing and is thought to have been forced into work as a prostitute. She has, since her arrival here, been diagnosed as suffering from HIV/AIDS.

2 The Refugee Appeals Tribunal decision of the 22^nd January which is sought to be quashed, if leave is granted, affirms the negative recommendation of the Refugee Applications Commissioner, broadly for three reasons. The main reason is that in the Tribunal member's judgment the applicant is not at risk of persecution or harm if returned to Nigeria on the basis she claims to fear namely, that she would be traced and retaliated against by Christina, the woman who trafficked her to Ireland and who will want, as it were, to recoup her wasted investment in the applicant. Relying on country of origin information, the Tribunal member considered that women returning to Nigeria, after having been trafficked for prostitution abroad, are not at risk of reprisals by the trafficker or, of facing problems of ostracisation in the community for having worked abroad as a prostitute. Secondly, and again based on country of origin information, the Tribunal member considers that, even if such a risk from the woman existed, protection from any threats of reprisal would be available to the applicant from appropriate authorities. Thirdly, and once more based on country of origin information, the Tribunal member deals with a claim which did not feature in the section 13 report or arise from the notice of appeal but which appears to have been raised, for the first time, at the appeal hearing, namely the risk to the applicant on return of persecution or harm in the form of severe stigmatisation and discrimination, including denial of medical treatment, for her condition of HIV/AIDS.

3 The central thrust of the grounds advanced as to the illegality of the appeal decision is directed at a common element, namely that the findings in question are vitiated in each instance by a selective or partial reliance on country of origin information, in that, in particular, the decision cites only material supportive of the negative recommendation and not merely ignores but, as counsel put it, "excises from the consulted documentation" passages which conflict with that material. Furthermore, it is alleged that the decision is defective in giving no rational explanation for this selective choice in the information relied upon.

4 This is an application for leave and the Court is concerned only to assess whether the grounds to be advanced to this effect are "substantial" in the sense of section 5 of the Illegal Immigrants (Trafficking) Act 2000. In that regard, the approach of the Court to the reliance placed by the Tribunal on such information is clear. It is for the Tribunal member to weigh and assess relevant information drawn from country of origin documentation and to decide what value or weight should be accorded to various parts of it, having regard to its relevance, the authoritative quality of its source, its apparent reliability and so forth. As with issues of credibility, the Court cannot substitute its own assessment of that information. It is concerned only with the legality and rational character of the process by which the conclusions or findings have been reached in the analysis which the Tribunal member has employed. As illustrated by the cases which have been cited to the Court in argument, (the Simo case, the H.O. case, the M.I.A. case,) the Court should intervene to disturb a decision based upon an assessment of country of origin information only where it is shown that some fundamental mistake has occurred in the use or interpretation of the available information or where the conclusion reached is manifestly at variance with the content and obvious effect of the documentation. In the present case, it is convenient to deal...