QSA 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 238
Nature of Proceedings:Judicial Review
Judgment Date/s:16 Apr 2015
Judge:Faherty J.
Category:Refugee Law
Keywords:Minor, Refugee
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/a2b748c0-dd63-4887-9d62-7192e1e34a97/2015_IEHC_238_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicant was a Nigerian national who claimed asylum in Ireland, claiming to fear female genital mutilation (FGM). She claimed to be a minor, supporting her claim in that regard with a birth certificate, but was age assessed by the Health Service Executive (HSE) as an adult.

She claimed that, back in Nigeria, her mother had received a letter from her extended family in her village, asking her to return home. She took the applicant with her. After they arrived in the village, the villagers told her that the applicant would have to be subjected to FGM. Her mother was opposed to this and they were detained in a house and kept under guard. Her mother managed to arrange the applicant’s escape by opening a window at nighttime and letting the applicant out, where she was met by a person she referred to as her aunt. She said that a person known as her uncle then took her to Ireland; however, he detained her and treated her as a sex slave. She managed to escape and locate a sister of her best friend, who happened to live in Ireland.

Having investigated her claim, the Refugee Applications Commissioner made a negative recommendation on it, which was affirmed by the Refugee Appeals Tribunal, whose decision the applicant challenged in these proceedings.

The Tribunal held that her claim lacked credibility. It did not consider it plausible that the applicant’s mother would have taken her to the village on foot of the letter, given she knew the villagers practised FGM. It found that their efforts to persuade her to undergo the procedure lacked credibility, taking the view that they could have performed it by force. It did not consider her escape credible, believing the house to be surrounded. It also found that internal relocation was available to her, having regard to the size of Nigeria and the applicant’s educational qualifications.

The court quashed the Tribunal’s decision.

Reasoning:
The court held, first, that the Tribunal ought to have made a specific finding as to the applicant’s age, notwithstanding that she had been assessed as an adult by the HSE and treated as such by the Commissioner. In its view, whether she was a minor or an adult would have been relevant to the appraisal of credibility and whether internal relocation would be available to her. The Tribunal’s failure to make such a finding undermined the credibility findings.

Additionally, the court held that the credibility findings were mostly unsound. It was not convinced that it would have been implausible for the applicant to have accompanied her mother to the village. It noted that, according to her evidence, she had been there the previous year and the question of FGM had not been discussed. That visit ought to have been taken into account in assessing the credibility of the alleged visit. It also found that there was no rational basis for the finding that it was incredible that the applicant’s mother would have returned to the village without knowing the purpose of the journey.

Moreover, any perceived frailties in the account of returning to the village did not free the Tribunal from the obligation of assessing whether there was a genuine fear of FGM given the evidence that it was carried out in her mother’s village. The court was not persuaded that the attempts by the villagers to persuade the applicant’s mother to agree to FGM entitled the Tribunal to doubt her credibility. It upheld the finding that it would not have been possible to make a secret arrangement to spring her from detention, but did not consider it sufficiently weighty to reject her claim on its own.

However, it held that the finding that the house was effectively surrounded had no evidential basis. Turning to the Tribunal’s view of the applicant’s travel to Ireland, subsequent treatment at the hands of her uncle and eventual escape, it held that the Tribunal had not provided a reasoned basis for its view that that was all incredible, and that its findings in that regard were unsound.

Finally, it found that the finding on internal relocation was unnecessary, given the lack of credibility found by the Tribunal, and it declined to embark on an analysis of whether or not it was sound.

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

Principles:

Where an applicant claims to be a minor, resulting in an age assessment which concludes that the applicant is actually an adult, a decision-making body dealing with that applicant’s application for protection should make a finding as to whether it is treating the applicant as an adult or a minor.

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