W (F G) & S (S)(A Minor) v Refugee Appeals Tribunal (Brennan) & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 05 May 2011
• Neutral Citation: [2011] IEHC 205
• Court: High Court
• Date: 05 May 2011

[2011] IEHC 205

THE HIGH COURT

[No. 1023 J.R./2008]

W (F G) & S (S)(A Minor) v Refugee Appeals Tribunal (Brennan) & Min for Justice

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

F. G. W. AND S. S. (A MINOR SUING BY HER MOTHER NEXT FRIEND F.G. W.)

APPLICANTS

AND

THE REFUGEE APPEALS TRIBUNAL (OLIVE BRENNAN) AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S13

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

REFUGEE ACT 1996 S17(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(2)

T (MS) & T (J)(A MINOR) v MIN FOR JUSTICE UNREP COOKE 4.12.2009 2009/54/13750 2009 IEHC 529

IMMIGRATION LAW

Asylum

Fear of persecution - Mother and daughter - Separate countries of origin - Failure to give separate consideration to daughter's claim - International protection - Liberia - Voluntary repatriation of refugees - Ivory Coast - Whether fear of persecution - Whether separate consideration given to second applicant's claim - Whether first applicant eligible for international protection - Whether material failure to deal with every aspect of claim - T(MS) v Minister for Justice, Equality and Law Reform [2009] IEHC 529 considered - Refugee Act 1996 (No 17), s 17(1) - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 5(2) - Decision in relation to second applicant quashed (2008/1023JR - Cooke J - 5/5/2011) [2011] IEHC 205

W(FG) v Refugee Appeals Tribunal

1 1. This application for judicial review came before the Court on foot of an order granting leave made by Edwards J. on the 8 ^th October, 2010, in which relief by way of certiorari is sought to quash a decision of the respondent Tribunal dated the 31 ^st July, 2008, (the "contested decision",) which recommended that the applicants be not declared to be refugees and affirmed the s. 13 Report of the Refugee Applications Commissioner to the same effect made on the 5 ^th December, 2006.

2 2. The applicants are mother and daughter respectively and it is one of the material facets of this case that they have different countries of origin. The first named applicant, the mother, was born in Liberia and the second named applicant, her daughter, was born in Ivory Coast on the 16 ^th August, 1993. The mother was first married in Liberia when she was eighteen years old and had a son by her first husband. The husband was killed by rebels in December 1989 during the period of civil war in that country. After a period in a camp with her sister and the son born prior to her husband's death, she decided to make her way to Ivory Coast. While doing so on foot she was attacked and raped by three men. She met a man who helped her, went with him to the Ivory Coast, married him and lived with him for thirteen years. He was, however, a Muslim with two wives and although she lived with him for that length of time and had three children by him, she claims that she had serious difficulties both with him and the other two wives.

3 3. In March 2006, the mother claims that her husband wanted to have another daughter circumcised (not the second named applicant) which led to a serious altercation in which she claims that she struck one of the other wives with a bottle and may have killed her. She then ran away with the second named applicant to Ajemi and worked there for six months as a prostitute. Then with the help of a customer called Harry Brown, she was able to leave and the two made their way to Ireland.

4 4. The mother's claim to a fear of persecution is based upon the proposition that if returned to the Ivory Coast her husband might kill her and her daughter and that if she were to be returned to Liberia her fear of persecution is based upon the event of past persecution, namely the rape mentioned above.

5 5. Leave for the present application was granted by reference to three grounds as follows:

1 The Tribunal failed to consider and/or adequately consider the first named applicant's claim to a well found fear of persecution by reason of risk of being raped in her country of origin, Liberia.

2 In breach of Regulation 5 of the European Communities (Eligibility for Protection) Regulations 2006 ( SI No. 518/2006), the Tribunal failed to consider and/or adequately consider the first named applicant's personal circumstances, in the particular context of the previous harm suffered by her by virtue of having been raped and sexually violated, and her present physical and mental condition to the extent that it is being affected or influenced or may in the future be affected or influenced on account of that previous harm.

3 The Tribunal failed to give separate consideration to the claim of the second named applicant by reference to her country of origin, Ivory Coast.

6 6. Having considered in advance the papers in the case and particularly the s. 13 Report of the ORAC and the contested decision of the Tribunal together with the written legal submissions of the parties, the Court invited the parties to address first, the third of these grounds. Having heard the submissions, the Court indicated that it was driven to the conclusion that it would be necessary to quash the contested decision insofar as it related to the determination of the asylum claim of the daughter. As the Court explained in a brief ex tempore ruling, it felt compelled to so conclude, because, in effect, both the s. 13 Report of the Commissioner and the contested decision of the Tribunal are devoid of any explicit conclusion or explanation in relation to the asylum claim of the daughter. In the s. 13 Report the daughter is referred to directly only in the heading "dependent applicant's (sic) covered by this application (if any): Susan S.....". In the body of the report she is only referred to by inference where it is said that "the applicant had two other children with this man". The report also says: "the applicant claims her husband wanted their daughter to be circumcised, but she refused and this resulted in a fight". This was in fact reference to another daughter called Becky and not to the second named applicant, but the report refers to the mother escaping and "managed to take her daughter with her" thereby giving the impression that it was the second named applicant who was threatened with circumcision. The operative recommendation to the s. 13 report then says: "I am satisfied that the...