BJ v Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform / OAIA v Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform

adminLeave a Comment

Respondent/Defendant:Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2014] IEHC 429
Nature of Proceedings:Judicial Review
Judgment Date/s:05 Sep 2014
Judge:McDermott J.
Category:Refugee Law
Keywords:Asylum, Persecution, Refugee, Refugee Law
Country of Origin:Sierra Leone
URL:https://www.courts.ie/acc/alfresco/6de7a624-3690-4b46-bbd2-1b63d4ecc4be/2014_IEHC_429_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicants were a mother and her son. The mother claimed to have been born in Sierra Leone and her son was born in Ireland. She arrived in Ireland in 2005 and claimed asylum. She alleged that she had been married to a pastor who had previously been involved with a rebel group in Sierra Leone. They looked askance at his leaving the group and attacked them, raping her and abducting him. She fled to Freetown but her whereabouts were discovered by the rebels who threatened those who had given her refuge. She then fled to Ireland. Her application, and that of her son’s, were unsuccessful before the Refugee Applications Commissioner and the Refugee Appeals Tribunal.

The Tribunal did not consider their claims to be credible. Insofar as her claim was concerned, it considered her knowledge of her husband’s involvement with the rebels to be vague.

It also did not consider credible her claim that he had no difficulties with the rebels for a period of three years, during which he preached publicly against them. The existence of a considerable gap between the threats made by the rebels against her also undermined the credibility of her claim to be targeted by them, given that her husband continued to preach during that time.

Finally, it noted that she had not made any effort to seek state protection for herself or her husband.

It also considered that her child’s claim was lacking in credibility. It held that there was no risk that he would be recruited as a child soldier into the rebel army or subjected to other serious human rights violations as a child; that he was not at risk of being targeted on account of the targeting of his parents by the rebels; or that, as the son of a single mother, he would be at risk as a result of alleged widespread societal and legal discrimination against women and, in particular, single mothers.

The applicants claimed that the Tribunal had erred in failing to assess the risk to them of gender-based violence if they were to return to Sierra Leone, citing country of origin information which discussed it.

Reasoning:
The court upheld the Tribunal’s decision.

Insofar as the latter claim of the applicants was concerned, it held that that element of the claim had arisen at a very late stage of the asylum process. There was no evidence that the mother had any gender-related problems in Sierra Leone before or after her marriage. It also noted that the Tribunal had considered the country of origin information submitted in the context of assessing future risk of persecution on the basis of gender-based discrimination and the possibilities of conscription of her son into a rebel army, and had concluded that those assertions were speculative. It upheld that finding, holding that it was not necessary to refer to each element of the evidence submitted by the applicants, and that there was no evidence to suggest that the evidence had not been considered.

It was entitled to consider the assertions to be speculative. Whilst the Tribunal had referred to an alleged requirement to show “firm evidence” that persecution “will” occur, the court noted that those aspects had to be read in the context of the entire decision, which proceeded on the appropriate burden and standard of proof, referring at times to the “serious possibility”, “reasonable chance” or “real chance” of persecution, and citing relevant statutory provisions concerning those matters.

The applicants claimed that the Tribunal had made a number of material errors of fact. On closer analysis, the court found that no, or no material, errors of fact existed at all, and rejected this ground of challenge too.

Finally, the applicants challenged a finding by the Tribunal that it was open to them to relocate elsewhere in Sierra Leone. The court rejected it, holding that that aspect of the decision was based on a finding of lack of credibility of the account given by the first named applicant. The references to internal relocation in Sierra Leone did not fundamentally undermine the decisions or fall to be considered in accordance with the principles set out by Clark J. in K.D. (Nigeria) v Refugee Appeals Tribunal [2013] IEHC 481. The court observed that Clark J. had noted in that case that there were a large number of Tribunal decisions which referred to the relocation option, notwithstanding a finding that there was no well-founded fear of persecution on credibility grounds. It was therefore not inclined to interfere with the decisions on this basis.

Finally, the court rejected a claim that the Tribunal had overly delayed in delivering its decision for some ten months after the oral hearing in the case. It was not satisfied that it gave rise to any demonstrable prejudice or error on its part as might vitiate the decisions. Notes were available of the hearings and, moreover, the alleged errors said to be contained in the decisions did not actually arise or were immaterial to the findings reached.

Decision:
The court accordingly refused leave and upheld the decision.

Principles:

A protection decision-maker is not required to refer to all of the evidence adduced by a protection applicant in its decision.

A protection decision which is based primarily on credibility will likely be upheld even though it includes an alternative finding on internal relocation which does not strictly comply with the requirements of the EC (Eligibility for Protection) Regulations 2006 or the EU (Subsidiary Protection) Regulations 2013, particularly where the “finding” on internal relocation can more appropriately be classed as a sub-finding of the appraisal of credibility.

Go Back

Leave a Reply

Your email address will not be published. Required fields are marked *