AM (a minor) v Refugee Appeals Tribunal, Minister for Justice and Equality, Ireland and the Attorney General

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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:[2014] IEHC 501
Nature of Proceedings:Judicial Review
Judgment Date/s:01 Oct 2014
Judge:Barr J.
Category:Refugee Law
Keywords:Asylum, Country of Origin Information, Persecution, Refugee
Country of Origin:Sierra Leone
URL:https://www.courts.ie/acc/alfresco/e8571671-e62e-438a-afc8-8ce91fd7898c/2014_IEHC_501_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:

The applicant was a minor who was born in Ireland in 2012. Her mother was from Sierra Leone and her father was from Rwanda. Both parents were asylum seekers in Ireland. Her mother applied for asylum on her behalf and said that she would fear FGM in Sierra Leone at the hands of her uncle or wider family. Her mother claimed to be circumcised. Country of origin information showed that around 90% of the female population of Sierra Leone had undergone FGM. She also contended that she would be persecuted if she refused to undergo it. She also claimed that she would be subject to persecution as the product of a mixed-race relationship. Additionally, she said she might become an underage bride or be subject to domestic violence.

The Refugee Applications Commissioner made a negative recommendation on her application for asylum. The applicant appealed to the Refugee Appeals Tribunal, which affirmed the recommendation. It held that, as the applicant’s mother was not in favour of FGM, there was no reason to believe that the applicant would be subject to it. It also drew an adverse credibility inference from her failure to mention any fear of FGM in an earlier application for asylum she had made in respect of the applicant’s older sister. It also discounted the other bases for her claim as having no evidential foundation.

The applicant challenged the decision of the Tribunal by way of judicial review. She contended that the Tribunal had failed to consider either the societal pressures on mothers to subject their daughters to FGM or to address the applicant’s distinct claim of risk of persecution on the ground that she would be a child in Sierra Leone who refused to submit to FGM. She also took issue with the Tribunal’s rejection of the other bases for her claim.

Reasoning: 

The court upheld the Tribunal’s decision. It held that, whilst country of origin information showed that FGM was extremely prevalent in Sierra Leone, this was because mothers wanted the procedure to be carried out on their daughters. It was not established that this would be carried out against the wishes of the parents. Where, as in the instant case, the mother was against the practice, it held that the child would not be at risk of FGM.

Additionally, the court held that the Tribunal was entitled to draw an adverse credibility inference from the fact that the applicant’s mother had not raised a fear of FGM in the asylum application previously brought on behalf of the applicant’s older sister. If FGM was really a cause for concern, one would have expected her to have done so.

The court also held that the Tribunal had proper regard to the available country of origin information when making its decision. Whilst FGM was extremely prevalent in Sierra Leone, it was performed at the behest of girls’ mothers. Where, as in the instant case, the applicant’s mother was opposed to the procedure, the Tribunal was entitled to rely on the country information to conclude that there was no risk to the applicant. A minority of girls in Sierra Leone were not subjected to FGM. The Tribunal was entitled to come to the view that the applicant would be part of that minority given the views expressed by the applicant’s mother.

The court also held that it was also open to the Tribunal to have regard to the fact that the applicant’s mother indicated that it was her uncle whom she feared might wish to inflict FGM on the applicant. He was a poor man living some distance from her city and was not aware of her existence. It was therefore open to the Tribunal to find that the applicant’s mother did not have an objective basis for the fear of her uncle.

The court held that there was no evidence to support the claim that the applicant would run the risk of becoming an underage bride and/or would experience domestic or sexual violence. Whilst the country information indicated that 56% of brides were underage brides, there was no reason to suspect that the applicant would not find herself in the 44% who would not get married until they had reached adulthood. Nor was there any evidence that the applicant would suffer discrimination due to the fact that she was the daughter of a mixed-race couple.

Decision:

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

The court therefore upheld the Tribunal’s decision.

Principles:

A protection decision-maker will be entitled to conclude that a female applicant will not be at risk of FGM if country of origin information indicates that it is open to her parent(s) to refuse to subject her to the procedure.

Where an applicant makes assertions as to why he or she has a fear of persecution, a protection decision-maker is entitled to require him or her to provide an evidential basis for the claim and, if it not be forthcoming, to reject it as an unsubstantiated assertion.

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