MSM and NAS (a minor) v Refugee Appeals Tribunal, the Minister for Justice, Equality and Law Reform, Ireland and the Attorney General

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Respondent/Defendant:Refugee Appeals Tribunal, the Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2015] IEHC 237
Nature of Proceedings:Judicial Review
Judgment Date/s:27 Mar 2015
Judge:Faherty J.
Category:Deportation
Keywords:Asylum, Deportation, Member State (Remain in the), Minor, Nationality, Protection (Subsidiary), Refugee, Refugee Law
Country of Origin:Somalia / Tanzania
URL:https://www.courts.ie/acc/alfresco/08ce8a40-8de1-4fca-a174-c97f11cbf4ad/2015_IEHC_237_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The first applicant claimed to be a Somali national of the Bajuni tribe. She sought asylum in Ireland saying that she had suffered persecution on Chula Island in Somalia, which took the form of two attacks against her. She claimed to have left Chula after the first attack on her family and to have gone to Tanzania where an agent arranged for her to obtain a visa to the United Kingdom. The agent disappeared and she then returned to Chula whence, after a second attack, she fled to The Yemen where she remained for six months. She then claimed to have travelled from The Yemen to Ireland and applied for asylum. The second applicant was her daughter, who was born in Ireland The first applicant made an asylum application on her behalf. The claims were processed separately.

Both claims failed before the Refugee Applications Commissioner on the basis of lack of credibility inter alia in the light of information obtained from the United Kingdom Border Agency (“UKBA”). The adverse credibility findings against the first applicant included the fact that a linguistic analysis showed that she spoke a variety of Swahili found “with certainty: not in Somalia” and “with certainty in: Kenya”; and that the UKBA information showed that she had applied for a visa to enter the United Kingdom using a Tanzanian passport with different identity details. The Refugee Appeals Tribunal affirmed the negative recommendations of the Commissioner.

Thereafter the Minister refused the applicants declarations of refugee status and proposed to make deportation orders in respect of them. They then applied for subsidiary protection and leave to remain in the State. The Minister then notified them that he proposed to treat them as Tanzanian nationals.

The applicants’ solicitors then made representations purporting to explain how the first applicant came to have made the visa application in Tanzania. They also referred to the information about a private company which had been chosen by the United Kingdom Border Agency and the British High Commission to administer visa applications on the latter’s behalf in Tanzania. They also furnished the Minister with an extract from a British newspaper which referred to the company and alleged abuses of the visa application system, not in Tanzania, but in Pakistan.

The Minister refused their applications for subsidiary protection and leave to remain, and made deportation orders against them.

In refusing them subsidiary protection, the Minister declined to accept that the first applicant was a Somali national. He noted that there was evidence on file to show that she came from Tanzania, such as the fact that she had used a valid Tanzanian passport to get a British visa, which he considered would have required her physical presence at the issuing office in Tanzania, as well as the provision by her of documentation and fingerprints.

The first applicant challenged the Minister’s finding on her nationality. She complained that he had failed to take into account her explanation for having a Tanzanian passport or how, using it, she procured a visa for entry into the United Kingdom. She contended that she had provided compelling evidence of abuse in the visa application process in Tanzania. She argued that, in holding that her physical presence at the issuing office was required, the Minister failed to have regard to country of origin information which suggested otherwise. She also complained that the Minister failed to take account of the finding in the language analysis report that she spoke a variety of Swahili found “with certainty in: Kenya.” She contended that she could not afford to pay for an alternative language analysis test. She stated that there was no evidence that she would be accepted into Tanzania if the Minister sought to deport her there.

The Minister contended that there was no cogent evidence of any problem in Tanzania regarding the issuing of passports and that the only problem adverted to concerned the issuing of visas in Pakistan. There was no obligation on him to give a specific reason for rejecting her submission in that regard. There was no onus on him to prove that she was Tanzanian, nor that the Tanzanian authorities would accept her onto their territory in the event of his attempting to deport her to Tanzania.

The High Court upheld the Minister’s determination on the issue of the applicants’ nationality.

Reasoning:
It was satisfied that the Minister was entitled to have regard to the information which was provided by the UKBA to the asylum authorities, all of which had been notified to the first applicant in the course of both the asylum and subsidiary protection processes, and in response to which the first applicant made a detailed submission. It was not persuaded that the Minister’s reliance on the fact that the applicant had a Tanzanian passport, and had obtained a British visa on the strength of it, had been undermined by his failure to set out the weight attached by him to her explanation as to how she came into possession of them.

The court held that the UKBA information was capable of sustaining a rational conclusion that the first applicant was not Somali. The information provided by her regarding alleged fraud in the issuing of passports and visas was not of such weight as to put the Minister on inquiry as to whether her explanation had a possible basis in fact. It noted that the information supplied by her did not point to any difficulties in the UK visa processing system in Tanzania. Nor was there reference to any problem in Kenya, where such applications were actually processed.

The court held that the weight to be attached to the language report was a matter for the Minister, relying upon the decision of Barr J. in MAA v. Refugee Appeals Tribunal [2014] IEHC 492 in that regard.

It held that, whilst there was a degree of discord between the Minister’s finding as to the nationality of the first applicant and the reference to Kenya in the language report, that was insufficient to negate the Minister’s reliance on the report as a piece of evidence which assisted him in determining whether or not she was a Somali national. The report made a clear finding that the variety of Swahili spoken by the first applicant was “with certainty” not found in Somalia.
It held that there was no obligation on the Minister to determine her nationality, relying on the decision of MacEochaidh J. in R.S. v. Refugee Appeals Tribunal & Minister for Justice [2014] IEHC 55.

Decision:
In conclusion, the court held that the decision to refuse the applicants subsidiary protection, on the basis that they were not Somali nationals, did not offend against the principle of rationality, nor had any cogent argument been made out that he breached fair procedures in the manner in which the application was assessed.

Principles:

When assessing the nationality of an applicant for international protection, a protection decision-maker is entitled to have regard to information which reliably indicates that the applicant possesses has another identity and nationality and has not been candid in making the application. If it is proposed to treat the applicant has having a different nationality to the one claimed by him or her, the decision-maker should put the information which has prompted such a course of action to the applicant for comment.

Unless an applicant puts cogent evidence forward to explain how he or she appears to have a different nationality to the one claimed, and why it would be incorrect to treat him or her as having that nationality, the decision-maker does not have to give express reasons for rejecting such evidence. The decision-maker, having rejected the claimed nationality, does not have to prove that the applicant has a particular nationality.

The fact that a language analysis report may cast doubt on the proposal to treat the applicant as having a particular nationality is not decisive, particularly if it casts doubt on the claimed nationality. Such a report is merely one piece of evidence to be considered in the round.

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