AD and Others v Refugee Appeals Tribunal and Others

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Respondent/Defendant:Refugee Appeals Tribunal, Minister for Justice and Equality, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2015] IEHC 779
Nature of Proceedings:Judicial Review
Judgment Date/s:24 Nov 2015
Judge:Faherty J.
Category:Refugee Law
Keywords:Minor, Refugee
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/1f7370a8-29d4-4fe5-a066-6b57aa7065bf/2015_IEHC_779_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The first applicant was a Nigerian national, mother of the second and third applicants who were born in Ireland. She had arrived in the State on a visitor’s visa to visit her sister. During the visit, she suffered a relapse of bi-polar disorder and was treated for this in the State. The Minister for Justice declined to renew her permission and made a deportation order in respect of the applicants. The applicants then claimed asylum. The first applicant alleged that she suffered from a mental disorder which caused her to have seizures, and that she had previously been raped in Nigeria when she had suffered a seizure. She alleged that she would not be able to get proper medication for her illness in Nigeria and that her children would be without her if she were hospitalised.

Having investigated the claim, the Refugee Applications Commissioner made a negative recommendation on it, which was affirmed by the Refugee Appeals Tribunal, whose decision the applicant challenged in these proceedings.

The Tribunal considered it difficult to understand why the first applicant delayed in claiming asylum and that it undermined the credibility of the claim. It also noted that she had previously availed of medical treatment in Nigeria and that information before it indicated that it would be available to her were she to return to Nigeria. It also held that there was no convention nexus in respect of the first applicant’s fear of rape.

The applicants argued that the Tribunal failed to have regard to the provisions of paragraphs 206 to 212 of the UNHCR Handbook and in disposing of the minors’ claims by reference to its decision on the first applicant’s claim, and had erred in its assessment of credibility.

Relying on the aforementioned provisions of the UNHCR Handbook, the applicants argued that they were designed to assist in the investigation of vulnerable applicants, and contended that the first applicant’s circumstances and the consequences for the minor applicants, were they to return to Nigeria, merited a “searching” investigation of the sort, they said, recommended in paragraph 212 in respect of mentally disturbed persons.

The court upheld the Tribunal’s decision.

Reasoning:
The court noted that paragraphs 206 and 212 of the Handbook were designed to alert a decision-maker to the fact that, in particular circumstances, a protection applicant might be at a disadvantage in relaying his claim, requiring the use of particular techniques to investigate it. It was not satisfied that the first applicant fell into the category of protection applicants for whom the paragraphs catered, there being nothing in the evidence before it to suggest that she was unable, by reason of mental illness, to articulate her case, either orally or in writing. Nothing of the sort had been asserted in the notice of appeal. The mere fact that she was legally assisted in completing her questionnaire would not of itself be sufficient to put a decision-maker on inquiry that the procedure provided for paragraph 212 was required.

The court also held that the Tribunal had not erred in its assessment of the applicants’ credibility. It had noted, with regard to the first applicant’s delay in seeking asylum, that she had been able to engage with the authorities on a number of matters between 2008 and 2010, that she was relatively well-educated and spoke English, that she had a sister in this state who had gone through the asylum process and that she had legal representation since at least 2010. Its conclusion on the issue of delay was rational and reasonable in all the circumstances.

Insofar as the minor applicants were concerned, the court held that, beyond stating baldly that they would fear persecution on the ground of membership of a particular social group, their mother had not made out any independent grounds for refugee status on their behalf. There was nothing to put the Tribunal on inquiry that an independent basis for refugee status might exist in respect of them, which required further investigation, or which obliged it to remit their case to the Commissioner for further investigation.

Decision:
The court therefore upheld the Tribunal’s decision.

Principles:

The provisions of the UNHCR Handbook on examining the claims of vulnerable protection applicants will not necessarily be applicable simply because an applicant for protection had suffered from a vulnerability, such as mental illness, in the past. In order to apply, evidence will be required, e.g. that the person was unable to articulate his or her case orally or in writing.

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