FGW v Refugee Appeals Tribunal & Ors

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Respondent/Defendant:Refugee Appeals Tribunal & Ors
Court/s:High Court
Citation/s:[2011] IEHC 205, 5th May 2011, Unreported
Nature of Proceedings:Judicial Review
Judgment Date/s:05 May 2011
Judge:Cooke J.
Category:Refugee Law
Keywords:Asylum, Asylum (Application for), Asylum application (Examination of an), Asylum Seeker, Child, Country of Origin, Minor, Protection (Application for International), Refugee
Country of Origin:Liberia; Ivory Coast.
URL:https://www.courts.ie/acc/alfresco/526d84ca-db74-4d85-98c2-dc0038d65e74/2011_IEHC_205_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

The Applicant was granted leave to seek to quash the decision of the Refugee Appeals Tribunal affirming a decision of the Refugee Applications Commissioner recommending against the applicants being declared refugees. The applicants were a mother and daughter with different countries of origin. The mother was born in Liberia, and the daughter was born in Ivory Coast. The mother’s claim for asylum was based, in respect of the Ivory Coast, that if returned there, her husband might kill her and her daughter, and, in respect of Liberia, that she endured past persecution, particularly rape, in that country.

The applicants sought to quash the Tribunal’s decision on three grounds, essentially, that the Tribunal: (1)  failed to consider the mother’s fear of persecution by reason of being raped in Liberia; (2) breached Regulation 5 of the European Communities (Eligibility for Protection) Regulations 2006 in failing to consider properly the mother’s personal circumstances, and in particular the previous harm she suffered, and her present physical and mental condition; and (3) failed to give separate consideration to the child’s claim in respect of Ivory Coast.

Re (1) & (2), the Court acknowledged that Regulation 5(2) of the 2006 Regulations provides that evidence of previous serious harm is to be regarded as a “serious indication” – not as conclusive proof – of an applicant’s well founded fear unless there are good reasons to consider that such harm will not be repeated, and found that the Tribunal’s decision could only be read as concluding that the lapse of time and changes that had taken place in Liberia meant that the applicant no longer faced any real risk of the repetition of the past events.

The Court acknowledged contained a “counter exception” (M.S.T. v Minister for Justice, Equality and Law Reform [2009] IEHC 529 followed), but found that notwithstanding the difficulties encountered by the mother, she had remarried and lived for thirteen years in the Ivory Coast, and this strongly suggested she succeeded in putting her experiences behind her, and that the evidence as a whole, including a medico legal report from SPIRASI, did not identify any continuing consequence of the rape and assault that might be described as a compelling reason to warrant a determination in her favour.

Re (3), the Court found that the substantive analysis of the Tribunal was exclusively by reference to the mother, and that given the absence of any consideration of the daughter in the Commissioner’s decision, the Tribunal’s decision could not provide an inferential basis for its rejection of the claim. The Court was cognisant that no specific claim on the child’s behalf had been articulated by the applicants, but held that the manner in which the daughter had been dealt with was unsatisfactory. The Court said it must be borne in mind that the facts raised the possibility that the daughter might be repatriated as a very young adult to a country other than the one to which he mother might be repatriated. The Court held that where there are two applicants for asylum who are dealt with together, it is incumbent on the Tribunal to state clearly, however briefly, why the claim of each applicant is rejected. The Court added that it is not sufficient that it should be left to the Minister to infer why a claim was refused.

Principles:
  1. Regulation 5(2) of the 2006 Regulations provides that evidence of previous serious harm is to be regarded as a “serious indication” – not as conclusive proof – of an applicant’s well founded fear unless there are good reasons to consider that such harm will not be repeated.
  2. Where there are two applicants for asylum who are dealt with together, it is incumbent on the decision maker to state clearly, however briefly, why the claim of each applicant is rejected.
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