S -v- Refugee Appeals Tribunal & AnorNeutral citation (2009) IEHC 604.
High Court
Judgment was delivered on December 9th, 2009, by Ms Justice Elizabeth Dunne.
Judgment
Leave for judicial review seeking to quash the findings of the Refugee Appeals Tribunal with regard to the Somali applicant’s credibility was refused.
Background
The applicant was an unaccompanied minor when she arrived in Ireland in August 2006. She said she was a member of the minority Ashraf ethnic clan in Somalia and she and her family had suffered at the hands of another ethnic group, the Marehan.
This included her being kidnapped in June 2002 and detained for two weeks, during which she was beaten and raped. She bled and became ill and was released close to her home.
In November 2003, there was another attempt to kidnap her along with her sister, during which her father was shot dead. In 2006 she was kidnapped again, held, beaten and raped. She escaped, but her family were no longer in their home.
A neighbour helped her travel to Ethiopia to a woman who was a member of the same ethnic group. She told this woman she had an uncle in the US and the woman gave her money to travel there.
She left Addis Ababa in the company of an agent who brought her to Dublin and left her there. She asked the Red Cross to contact her uncle, but they were unable to do so.
She then applied to the Refugee Applications Commissioner for asylum as an unaccompanied minor, which was refused, and she appealed to the appeals tribunal. She had reached the age of majority by the time her appeal was heard.
However, she presented in a very distressed psychological condition, and her application to the Office of the Refugee Applications Commissioner was adjourned for 10 months for that reason. She had received no formal education. Her lawyers submitted that these were factors that should have been taken into account in assessing her application.
The respondents pointed to the fact that the tribunal member had made reference to her age and the Separated Children in Europe Programme but had concluded that even considering her entitlement to a liberal application of the benefit of the doubt she could not be given the benefit of the doubt.
The tribunal member had doubts about the applicant’s credibility in relation to five matters: the location of her second place of detention; the lack of assistance from local people when she and other detainees were sent by their captors to gather firewood; the circumstances of their escape from the militia; the manner in which she contacted her uncle from Ethiopia and her knowledge of Somalia.
The applicant seemed confused as to whether her place of detention was in a town or outside a town. Referring to the behaviour of local people, her lawyers argued there was nothing in the evidence to suggest that people would have helped members of a minority ethnic group held by the militia.
Ms Justice Dunne said that it was open to the tribunal member to reach this conclusion having regard to the evidence before her.
The tribunal also found it difficult to believe that the militia would have simply forgotten about the girls on the day the applicant escaped with two others during a fire battle with another group of men. Ms Justice Dunne said that the finding was one open to the tribunal member on the evidence.
The tribunal found that it was difficult to believe that the woman in Ethiopia could have contacted the applicant’s uncle with his name and sub-plan, which she had conveyed to her son who lived in the US and that the applicant did not know where in America he lived. “It seems to me that the finding in relation to this aspect of the matter is one which was open to the tribunal members having regard to the circumstances and the evidence provided,” Ms Justice Dunne said.
In relation to the applicant’s knowledge of Somalia, she had knowledge of the town she stated she came from, but had little information on the region as a whole. The tribunal member concluded she had not lived in Somalia in the years immediately before her travelling to Ireland.
Ms Justice Dunne said she saw no basis upon which the tribunal member was not entitled to make the comments described in the decision on this issue.
Decision
Ms Justice Dunne said that a number of recent cases had considered in detail the manner in which the finding on credibility by a tribunal member can be made the subject of judicial review.
She referred to the case of Kikumbi -v- ORAC & MJELR RAT (2007)and S.S.S. -v- Minister for Justice Equality and Law Reform (2009)which had attempted to gather together the various principles which should guide the court when dealing with a challenge to the credibility findings of a tribunal member.
This included the statement that the decision on credibility must be made by the commissioner at first instance and the tribunal member on appeal and, once it was based on an objective appraisal of all relevant evidence, it was immune from judicial review.
The court must not fall into the trap of substituting its own assessment of credibility for that of the decision-makers during the asylum process, but was only concerned with the legality of the process.
The decision must be read as a whole and an error in respect of one or more specific factors will not invalidate the entire decision.
In this case, the various matters referred to by the tribunal member were all raised with the applicant and she had an opportunity to deal with them.
In essence, this was a case in which the court had been invited to deconstruct the decision on credibility. It was not a case where the findings of the tribunal member were not ones open to her to make having regard to all the circumstances and material before the tribunal.
Ms Justice Dunne said she could not see that the applicant had established substantial grounds for arguing that the decision of the tribunal member in this case should be quashed and she refused the application for leave.
The full judgment is on www.courts.ie
Nuala Egan BL, instructed by the Refugee Legal Service, for the applicant; Fíona O’Sullivan BL, instructed by the Chief State Solicitor’s Office, for the respondent.