CFA (a minor) v Refugee Appeals Tribunal and Others

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Respondent/Defendant:Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2015] IEHC 702
Nature of Proceedings:Judicial Review
Judgment Date/s:19 Jun 2015
Judge:Faherty J.
Category:Refugee Law
Keywords:Country of Origin Information, Minor, Refugee
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/9e2e8666-c56c-45e0-b87a-574d5fecffe8/2015_IEHC_702_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicant was born in Ireland to Nigerian parents. Her mother claimed that she would be subject to female genital mutilation (FGM) and discriminated against on the basis of her single parent status in Nigeria. Her mother had previously unsuccessfully claimed asylum in the State.

Having investigated her claim, the Refugee Applications Commissioner made a negative recommendation on it, which included a finding which precluded an oral appeal. The recommendation was affirmed by the Refugee Appeals Tribunal, whose decision the applicant challenged in these proceedings.
The Tribunal had found that the mother’s delay of sixteen months since the applicant’s birth in making an application for asylum on her behalf undermined the credibility of the claim, relying on s. 11B(d) of the Refugee Act 1996. It also rejected the substantive bases upon which the claim had been made, on account of the delay in claiming asylum with regard to the alleged fear of FGM and the fact that there was no objective information to support the fear based on her mother’s marital status.

At the judicial review hearing, the Tribunal sought to adduce evidence adduced  in the course of the mother’s claim for asylum to undermine a claim made by her in the context of the applicant’s application that she could not relocate in Nigeria as she had no relatives there. The evidence in question showed that her mother and aunt were still living there. The Tribunal also wished to rely before the court on country of origin information post-dating its decision, which showed that FGM was unlawful in Lagos. The court held that, as none of that information had been before the Tribunal, it was not properly admissible in the context of a judicial review.

The court quashed the Tribunal’s decision.

Reasoning:
First, the court rejected an argument that the Tribunal was precluded from making adverse credibility findings on a paper appeal.

The court rejected a challenge to the finding that the applicant would not be persecuted on the ground of her mother’s marital status.

Turning to the fear of FGM, it held that s. 11B(d) of the Act of 2006 was not relevant to the claim of an Irish-born non-national, because it concerned applicants who delayed in making asylum applications after arriving at the frontiers of the State. Delay on the part of persons like the applicant could be taken into account in assessing credibility, but not by reference to s. 11B(d).

It held that the Tribunal had not properly taken into account the mother’s claim to have been subject to FGM or the fact that FGM was extremely common in Nigeria when assessing credibility and, in particular, the delay in claiming asylum. There was no evidence on the face of the decision that such matters had been weighed. It was incumbent on the Tribunal to have done that where the applicant’s notice of appeal made clear that she was challenging the finding made by the Commissioner about her delay in claiming asylum, and where it was said that there had been a failure by him to consider the applicant’s mother’s evidence and country of origin reports regarding FGM.

The Tribunal had also based its assessment of credibility on the FGM aspect of the claim by reference to the applicant’s mother’s failure to mention it at the interview conducted under s. 8 of the Act of 1996 and recorded in the ASY1 form. The court held that, where the questionnaire subsequently completed by her formed the statutory basis for the investigation of an asylum claim, the Tribunal had acted unfairly in placing emphasis on the lack of reference to FGM in the s. 8 interview.

The court also held that, even if the credibility findings in this case had been lawfully made, the particular circumstances of the case required the Tribunal to give consideration to the possibility of future persecution, given that it had not rejected the applicant’s mother’s claim to have been subjected to FGM, the applicant’s gender and age, and the country of origin information on file concerning the nature and extent of the practice of FGM in Nigeria.

The court also set aside the Tribunal’s finding that internal relocation would be available to the applicant in Nigeria.  Whilst it was open to it to determine that Lagos, given its size and multi-ethnic culture, was a place to which the applicant could relocate, it had failed to examine if the laws there were capable of protecting the applicant from any threat of FGM that might emanate from outside sources. Furthermore, as to whether it would be reasonable to move there, it held that the applicant’s mother’s claimed circumstances, namely that she had no relations in such cities as Abuja, Lagos or Ogun, and her limited financial concerns, had not been weighed by the Tribunal in assessing the difficulties which relocation might present for her and the applicant, in the light of the country of origin information before it.

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

Principles:

Delay on the part of Irish-born children in applying for asylum cannot be the subject of a negative credibility finding under s. 11B(d) of the Refugee Act 1996.

When assessing credibility on an application for refugee status, a decision-maker should not necessarily draw negative inferences based on discrepancies between the ASY1 form and the questionnaire.

Where an applicant fears a particular form of ill-treatment, such as FGM, a decision-maker who is minded to find that internal relocation is available to such a person should establish if the ill-treatment is against the law in the place of relocation.

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