RS (A Minor) v Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform
Court/s:High Court
Nature of Proceedings:Judicial Review
Judgment Date/s:13 Feb 2014
Judge:MacEochaidh J.
Category:Refugee Law
Keywords:Asylum, Nationality, Persecution, Refugee
Country of Origin:Somalia (allegedly)
URL:http://www.courts.ie/Judgments.nsf/0/0930F4512CFC541980257C89003D41EB
Geographic Focus:Ireland

Facts:

The non-national applicant was a minor who had been born in Ireland. Her mother had previously unsuccessfully claimed asylum. She had claimed to be a Somali national. Her claim had been found to lack credibility, in particular because she had not persuaded the asylum authorities that she was, as she alleged, a Somali national of Bajuni ethnicity. Credibility was also rejected because it was discovered that, contrary to what the mother had claimed in her asylum application, she had obtained a visa on a Tanzanian Passport in Dar es Salaam, Tanzania to enter and study in the United Kingdom. She went on to apply for subsidiary protection and leave to remain, and the Minister had dealt with her on the basis that she was a national of Tanzania.

The Refugee Applications Commissioner recommended that the minor applicant not be declared a refugee, and she appealed unsuccessfully to the Refugee Appeals Tribunal, whose decision she challenged by way of judicial review.

The Tribunal had found that the applicant’s mother had been afforded every opportunity on her behalf to express and to outline fears she might have for her in Somalia, and had failed to take it. It also noted that her claim had been heard and determined previously and that she had failed to satisfy the Tribunal that she had a well-founded fear of persecution on any Convention ground. Furthermore, issues in relation to her nationality had been raised and it had been determined that she was not a Somali national.

Reasoning:

The High Court refused leave to challenge the Tribunal’s decision. It dealt with the primary basis upon which the decision was challenged, namely that the Tribunal had failed to determine the applicant’s nationality. It noted that, whilst it was imperative that a finding of nationality be made, because otherwise it would be impossible to declare a person a refugee, it did not follow that in a case where an asserted claim as to nationality was rejected, the Tribunal or decision-maker then had to identify the nationality of the claimant. It found that such a finding would serve no purpose in circumstances where an asserted claim as to nationality had been rejected. In those circumstances, an applicant’s credibility as to the very core of a claim would have been rejected and no further analysis of any aspect of the claim would be required. The court therefore rejected the argument made by the applicant that the lack of identification of the nationality of the minor applicant or his mother constituted a legal flaw in the decision-making process. 

The court then turned to the applicant’s claim that there had not been any clear rejection of the asserted Somali nationality in the Tribunal’s decision. Whilst it agreed that the language used in the case could have been clearer, it was noteworthy that the same Tribunal Member decided the mother’s and the minor applicant’s claims. It held that it was beyond doubt that it based the rejection of the minor applicant’s asylum claim on the earlier rejection of the mother’s claim to be Somali. In particular, it was clear that the mother’s failure to persuade the Tribunal that she had a well-founded fear of persecution was based, in significant part, on her failure to persuade it that she was a Somali of Bajuni ethnicity.

Decision:

The court refused leave and thereby upheld the Tribunal’s decision.

Principles:

Where an asserted claim as to nationality has been rejected by a protection decision-maker, it does not follow that it then has to identify the nationality of the claimant.

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