HHA (a minor) v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, and the Refugee Appeals Tribunal

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Respondent/Defendant:Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, and the Refugee Appeals Tribunal
Court/s:High Court
Citation/s:[2014] IEHC 499
Nature of Proceedings:Judicial Review
Judgment Date/s:02 Oct 2014
Judge:Barr J.
Category:Refugee Law
Keywords:Asylum, Minor (Unaccompanied), Persecution, Refugee
Country of Origin:Somalia and Tanzania
URL:https://www.courts.ie/acc/alfresco/48f433ba-9271-4516-830c-11c854e89611/2014_IEHC_499_1.pdf/pdf#view=fitH
Geographic Focus:Ireland
The applicant claimed to be a Somali national of Bajuni ethnicity. He sought asylum in the State and said that he was born on the island of Chula in 1992. He claimed to have been persecuted by members of the majority Hawiye clan, who at various times allegedly murdered his father, shot the applicant, and raped his mother and sisters. He said that after the last altercation with them, he left for Kenya. Arrangements were made for him to seek asylum abroad and the agent responsible for this brought him to Dar es Salaam in Tanzania, where he accompanied him to the British embassy and provided him with a Tanzanian passport in the name of another man. The applicant was fingerprinted by the British authorities and issued with a visa to enter the United Kingdom. The applicant then gave an account of flying to an airport in Ethiopia and onwards, after changing planes, to an airport which he believed was in Ireland. He then said that the agent deposited him in a house in the countryside where he stayed for a number of months, before finally being taken to the offices of the Refugee Applications Commissioner. Given that he said he was born in 1992 he was treated as an unaccompanied minor, and his asylum application was made with the help of the Health Service Executive. Before being interviewed, he gave a different account of how he travelled to Ireland, claiming that the agent had told him not to reveal his true travel itinerary. This occurred after he had been informed that his fingerprints had matched those held by the British authorities in the name of one John Peter Thomas, born in 1998.
The Refugee Applications Commissioner made a negative recommendation on his application for asylum. He placed reliance upon the information obtained from the British authorities which indicated that he was a national of Tanzania. His decision including a finding which deprived the applicant of an oral appeal hearing.
The applicant unsuccessfully challenged the Commissioner’s decision by way of judicial review.
Reasoning:
He contended that the Commissioner’s view that his identity must have that obtained from the British authorities was unreasonable and irrational.  He pointed to a number of features in an effort to set aside that finding. He pointed to a language analysis report which found that he did not speak a variety of Swahili spoken in Somalia, but instead spoke a variety of Swahili, with certainty found in Kenya. He contended that the Commissioner ignored this in finding that he was from Tanzania. He claimed that he had Swahili-speaking friends from the Congo, Tanzania and Kenya, and that that could have affected the results of his language analysis. He stated that he was a Muslim and had a Muslim name. At his interview with the Commissioner, he invited the interviewer to ask him any question about Islam and said he would be happy to answer it, but his invitation was not taken up by the interviewer. In the s. 13 report, the author did not take issue with the applicant’s claim that he was a Muslim. He claimed that no attempt was made in the s. 13 report to reconcile that with the fact that the Tanzanian passport was in the name of a Christian man.
The Commissioner submitted that he had regard to the fact that the applicant did have some knowledge of Bajuni culture and customs, but that that was not sufficient to establish that he had come from there. Basic questions which he had been unable to answer seriously questioned his credibility on whether he was from the Bajuni islands. Whilst credit had been given for correct information given by the applicant, the Commissioner was of the view that that was outweighed by the lack of knowledge on his part of matters which a person from the Bajuni islands would be expected to have. The Commissioner also pointed out that the applicant did not speak the Bajuni dialect spoken by the Bajuni people on Chula Island.
The court held that, in analysing these matters, the Commissioner had to weigh up different pieces of evidence in relation to each of the issues identified by the applicant. The weight to be attached to each of these factors was a matter for the Commissioner and it could not find any fault in the manner in which he dealt with the evidence before him.
The applicant also submitted that it was unfair of the Commissioner to find that he was not a minor, without any reference to appearance or maturity, and then go on to assess his credibility on the basis that he was an adult. The Commissioner submitted that, given the credibility issues concerning the accounts given by him concerning his identity and age, about which there was considerable doubt, those matters were put to him for comment.
The court held that it was reasonable to treat the applicant as an adult given that the Tanzanian passport gave his date of birth as being 1988. He was entitled to come to the conclusion that given the inconsistencies in his version of his travel to Ireland that he was not entitled to the benefit of the doubt.
The applicant sought to set aside the adverse credibility finding made on account of the inconsistent accounts given by him of how he travelled to Ireland on the basis that there were no reasons for rejecting his explanations.
The court held that it was reasonable for the Commissioner to conclude as he did that the applicant’s repeated excuse that he gave false and misleading information on the urging of the agent was not credible. It noted that, even when the applicant attempted to supply the supposedly true version of events, further lies became apparent. It held that it was open to the Commissioner to conclude that the applicant only gave the true version about his travel details when he was informed of the information obtained from British authorities.
The applicant complained that the Commissioner made a finding that it was not possible for the applicant to acquire a British visa using a false passport. He pointed to country of origin information detailing instances of such documents being obtained on a false basis from the British embassy in Tanzania. The Commissioner contended that that arose from a particular type of application procedure which differed from that completed by the applicant and that, in circumstances where the applicant presented in person at the British embassy and was fingerprinted, the chance of such fraudulent behaviour occurring and succeeding was unlikely.
The court held that, bearing in mind that false documentation only arose in a minority of visa applications in Dar es Salaam and the circumstances in which the applicant made his visa application, it was open to the Commissioner to reach the view that it was not credible that he could have obtained the visa on a false document.
The applicant also challenged the reliance placed on the language analysis report, and questioned the competence of the analyst and the methodology used in its completion. The Commissioner pointed out that it was but one part of the evidence before him and that six adverse credibility findings had been made before it was even considered. He pointed out that the applicant had been given an opportunity of commenting on the report before he made his decision and that he could have submitted his own language analysis report, but failed to do so.
The court held that the weight to be given to the report by the Commissioner was a matter for him, and that he acted within jurisdiction in the manner in which he had regard to it. It was treated as one aspect of the evidence and considered it in a fair and reasonable manner.
The applicant also contended that he would find it difficult to address the matters of his credibility, his age and nationality on a paper appeal. He contended that he was therefore not debarred from proceeding by way of judicial review simply on the basis of the availability of an appeal to the Tribunal. The Commissioner submitted that it was open to the applicant to address in writing all of his findings on appeal and was not unduly prejudiced by the fact that his appeal would be on the papers only.
The court held that, in the circumstances, it was not unreasonable for the applicant to seek judicial review of the Commissioner’s decision. However, it found that the Commissioner’s decision was validly made.
Decision:
Accordingly, it refused the applicant the reliefs sought and upheld the Commissioner’s decision.

Facts:

The applicant claimed to be a Somali national of Bajuni ethnicity. He sought asylum in Ireland and said that he was born on the island of Chula in 1992. He claimed to have been persecuted by members of the majority Hawiye clan, who at various times allegedly murdered his father, shot the applicant, and raped his mother and sisters. He said that after the last altercation with them, he left for Kenya. Arrangements were made for him to seek asylum abroad and the agent responsible for this brought him to Dar es Salaam in Tanzania, where he accompanied him to the British embassy and provided him with a Tanzanian passport in the name of another man.

The applicant was fingerprinted by the British authorities and issued with a visa to enter the United Kingdom. The applicant then gave an account of flying to an airport in Ethiopia and onwards, after changing planes, to an airport which he believed was in Ireland. He then said that the agent deposited him in a house in the countryside where he stayed for a number of months, before finally being taken to the offices of the Refugee Applications Commissioner. Given that he said he was born in 1992 he was treated as an unaccompanied minor, and his asylum application was made with the help of the Health Service Executive.

Before being interviewed, he gave a different account of how he travelled to Ireland, claiming that the agent had told him not to reveal his true travel itinerary. This occurred after he had been informed that his fingerprints had matched those held by the British authorities in the name of one John Peter Thomas, born in 1998.

The Refugee Applications Commissioner made a negative recommendation on his application for asylum. He placed reliance upon the information obtained from the British authorities which indicated that he was a national of Tanzania. His decision including a finding which deprived the applicant of an oral appeal hearing.The applicant unsuccessfully challenged the Commissioner’s decision by way of judicial review.

Reasoning:

He contended that the Commissioner’s view that his identity must have that obtained from the British authorities was unreasonable and irrational.  He pointed to a number of features in an effort to set aside that finding. He pointed to a language analysis report which found that he did not speak a variety of Swahili spoken in Somalia, but instead spoke a variety of Swahili, with certainty found in Kenya. He contended that the Commissioner ignored this in finding that he was from Tanzania. He claimed that he had Swahili-speaking friends from the Congo, Tanzania and Kenya, and that that could have affected the results of his language analysis. He stated that he was a Muslim and had a Muslim name. At his interview with the Commissioner, he invited the interviewer to ask him any question about Islam and said he would be happy to answer it, but his invitation was not taken up by the interviewer. In the s. 13 report, the author did not take issue with the applicant’s claim that he was a Muslim. He claimed that no attempt was made in the s. 13 report to reconcile that with the fact that the Tanzanian passport was in the name of a Christian man.

The Commissioner submitted that he had regard to the fact that the applicant did have some knowledge of Bajuni culture and customs, but that that was not sufficient to establish that he had come from there. Basic questions which he had been unable to answer seriously questioned his credibility on whether he was from the Bajuni islands. Whilst credit had been given for correct information given by the applicant, the Commissioner was of the view that that was outweighed by the lack of knowledge on his part of matters which a person from the Bajuni islands would be expected to have. The Commissioner also pointed out that the applicant did not speak the Bajuni dialect spoken by the Bajuni people on Chula Island.

The court held that, in analysing these matters, the Commissioner had to weigh up different pieces of evidence in relation to each of the issues identified by the applicant. The weight to be attached to each of these factors was a matter for the Commissioner and it could not find any fault in the manner in which he dealt with the evidence before him.

The applicant also submitted that it was unfair of the Commissioner to find that he was not a minor, without any reference to appearance or maturity, and then go on to assess his credibility on the basis that he was an adult. The Commissioner submitted that, given the credibility issues concerning the accounts given by him concerning his identity and age, about which there was considerable doubt, those matters were put to him for comment.

The court held that it was reasonable to treat the applicant as an adult given that the Tanzanian passport gave his date of birth as being 1988. He was entitled to come to the conclusion that given the inconsistencies in his version of his travel to Ireland that he was not entitled to the benefit of the doubt.

The applicant sought to set aside the adverse credibility finding made on account of the inconsistent accounts given by him of how he travelled to Ireland on the basis that there were no reasons for rejecting his explanations. The court held that it was reasonable for the Commissioner to conclude as he did that the applicant’s repeated excuse that he gave false and misleading information on the urging of the agent was not credible. It noted that, even when the applicant attempted to supply the supposedly true version of events, further lies became apparent. It held that it was open to the Commissioner to conclude that the applicant only gave the true version about his travel details when he was informed of the information obtained from British authorities.

The applicant complained that the Commissioner made a finding that it was not possible for the applicant to acquire a British visa using a false passport. He pointed to country of origin information detailing instances of such documents being obtained on a false basis from the British embassy in Tanzania. The Commissioner contended that that arose from a particular type of application procedure which differed from that completed by the applicant and that, in circumstances where the applicant presented in person at the British embassy and was fingerprinted, the chance of such fraudulent behaviour occurring and succeeding was unlikely.

The court held that, bearing in mind that false documentation only arose in a minority of visa applications in Dar es Salaam and the circumstances in which the applicant made his visa application, it was open to the Commissioner to reach the view that it was not credible that he could have obtained the visa on a false document.

The applicant also challenged the reliance placed on the language analysis report, and questioned the competence of the analyst and the methodology used in its completion. The Commissioner pointed out that it was but one part of the evidence before him and that six adverse credibility findings had been made before it was even considered. He pointed out that the applicant had been given an opportunity of commenting on the report before he made his decision and that he could have submitted his own language analysis report, but failed to do so.

The court held that the weight to be given to the report by the Commissioner was a matter for him, and that he acted within jurisdiction in the manner in which he had regard to it. It was treated as one aspect of the evidence and considered it in a fair and reasonable manner.

The applicant also contended that he would find it difficult to address the matters of his credibility, his age and nationality on a paper appeal. He contended that he was therefore not debarred from proceeding by way of judicial review simply on the basis of the availability of an appeal to the Tribunal. The Commissioner submitted that it was open to the applicant to address in writing all of his findings on appeal and was not unduly prejudiced by the fact that his appeal would be on the papers only.The court held that, in the circumstances, it was not unreasonable for the applicant to seek judicial review of the Commissioner’s decision. However, it found that the Commissioner’s decision was validly made.

Decision:

Accordingly, it refused the applicant the reliefs sought and upheld the Commissioner’s decision.

Principles:

A protection decision-maker is entitled to make adverse credibility inferences which are reasonably open to it on the evidence before it.  In deciding whether or not it believes the applicant’s claimed nationality, it is open to it to have regard to information from reliable sources which indicates that the applicant is a national of another country.

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