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

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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 61
Nature of Proceedings:Judicial Review
Judgment Date/s:06 Feb 2015
Judge:Stewart J.
Category:Refugee Law
Keywords:Asylum, Asylum (Application for), Minor, Persecution, Refugee, Refugee Law
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/96333086-abf0-4f23-a1c4-84d7c876a0f0/2015_IEHC_61_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The first and second applicants were born in Nigeria, the third applicant in Ireland. The first applicant was the other applicants’ mother. They applied for asylum in the State. In the claim, it was alleged that the second applicant had been forcibly circumcised at the family home in Nigeria in accordance with the traditional practices and beliefs of his paternal family. When the first applicant was pregnant with the third applicant, she was informed by her husband’s family that he would also be circumcised thus. The husband, who was in agreement with his wife’s opposition to this, left the family home and advised his wife to do likewise. He then allegedly abandoned them and there was no further contact with him.  The first applicant stated that she was threatened with death by the husband’s family for her opposition to circumcision. She found refuge with her church, which organised her travel from Nigeria.

Having investigated their claim, the Refugee Appeals Commissioner recommended that they be refused refugee status, which was affirmed by the Refugee Appeals Tribunal on appeal. In the course of the appeal, they submitted a medical report from a hospital in Nigeria which stated that the second applicant had been admitted to hospital with injuries to his genital area as a result of the circumcision supposedly carried out on him, along with a letter from a friend of the first applicant, outlined how her own child had died as a result of a traditional circumcision.

The Tribunal made a number of credibility findings on the applicants’ claim, including in relation to the alleged abandonment of them by first applicant’s husband; perceived inconsistencies in relation to addresses furnished; their travel to the State; the fact that they initially claiming to be from Sierra Leone; and errors in a birth certificate furnished by them. Insofar as the hospital report and the letter from the friend were concerned, it held that they were not sufficiently compelling to overturn the Commissioner’s recommendation. It also found that internal relocation to a large urban area such as Lagos or Abuja would not be unduly harsh.

The applicant claimed that the Tribunal had failed to make any finding on the evidence that the second applicant had been subjected to a traditional circumcision or the potential exposure of the third applicant to the same type of circumcision, and failed to determine whether such treatment amounted to persecution. They asserted that the Tribunal failed to consider the medical report and letter submitted by them as part of its appraisal of credibility, and that it erred in finding that they were not sufficiently compelling after it had made the critical adverse credibility findings on their claim. They also alleged that the Tribunal’s decision was inadequately reasoned. They further contended that the internal relocation finding failed to comply with reg. 7 of the EC (Eligibility for Protection) Regulations 2006, as interpreted by case law.

The Tribunal countered that the adverse credibility finding made on the inexplicable alleged departure of the first applicant’s husband and father of her son was in order and went to the core of their claim bearing in mind the support he allegedly gave the first applicant on her opposition to circumcision, thereby undermining the account given of circumcision of the second applicant and the potential risk thereof to the third applicant. The Tribunal argued that the contradictions and inconsistencies in the claim negated the probative value to be attached to the medical report and the letter.

The court quashed the Tribunal’s decision.

Reasoning:
It held that the adverse credibility finding made in relation to the abandonment of the applicants by the first applicant’s husband was speculative and unreasoned.

It went on to note that two findings had been made on the claim pursuant to s. 11B (b) and (c) of the Refugee Act 1996. The former required the Tribunal to take into account for the purpose of assessing credibility whether an asylum applicant had provided a reasonable explanation to substantiate his claim that the State was the first safe country in which he had arrived since departing from his country of origin or habitual residence, the latter whether such an applicant had provided a full and true explanation of how he travelled to and arrived in the State.

It held that the applicants had not claimed that Ireland was the first safe country encountered after departing Nigeria and that, accordingly, s.11B (b) of the Act of 1996 did not apply. Insofar as the application of s.11B (c) was concerned, the court held that the first applicant had explained at interview as to why and how she travelled to the State and the nature of the documents she had been provided with by the man who assisted her. It noted that whilst the Tribunal broadly stated that s.11B(c) was relevant to the claim, it did not say why it was relevant or what relevance it had to it.

The court noted that the Tribunal had dealt with the medical report on the basis that it was not sufficiently compelling to overturn the s.13 recommendation. It inferred from this that the Tribunal had accepted the document’s authenticity. Accordingly, it held that it was clearly relevant to the core claim, namely whether or not the third applicant was at risk of traditional circumcision. It found that the Tribunal had rejected it without proper consideration and without any reasons why it was being rejected. It also noted that there had been no finding in the Tribunal’s decision as to whether or not a forceful circumcision had been carried out on the second applicant or, if there had been, whether or not the third applicant was at risk of being subjected to a similar procedure should he be returned to Nigeria. The court accepted that traditional circumcision could constitute a “serious assault” and therefore constitute a type of harm which precluded refoulement within the meaning of s. 5(2) of the Act of 1996.

It therefore concluded that the Tribunal had failed to deal with and make findings on the core aspects of the applicants’ claim.

Decision:
The court therefore granted leave and, the matter being telescoped, decided to quash the Tribunal’s decision.

Principles:

Credibility findings made by a decision-maker on an application for international protection must be clear and reasoned.

When applying the sub-paragraphs of s. 11B of the Refugee Act 1996 in assessing credibility, reasons should be set out for doing so.

Where documentary evidence in support of an application for international protection is accepted as being authentic, reasons must be set out for not giving it weight in determining the application.

Traditional circumcision is capable of constituting a “serious assault” within the meaning of s. 2 of the Refugee Act 1996.

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