The Applicants were a mother and child from Kenya. They claimed to fear persecution in Kenya from the Mungiki sect and claimed refugee status in Ireland. Their applications were refused and they applied for subsidiary protection on the grounds of serious ethnicly motivated violence in Kenya following a disputed election in 2007. In refusing these applications, the Minister relied on the fact, inter alia, that a power-sharing government had taken power in Kenya.
The Applicants obtained the leave of the High Court to challenge the Ministerial decision by way of judicial review. In its judgment on the substantive application, the High Court (Birmingham J.) held, approving the decisions of the High Court of Australia in Chan v Minister for Immigration and Ethnic Affairs [1989] CLR 379 and the decision of the High Court (Cooke J.) in LM v Refugee Appeals Tribunal and Others [2010] IEHC 132, that a decision maker must be concerned with the actual situation on the ground and must look to see whether one can be confident whether any progress or improvement in that situation will be maintained.
The Court however distinguished the Applicants’ case from those of Chan and LM, finding that in the Applicants’ case there was evidence before the Minister that entitled him to take the optimistic view that the post-election violence in Kenya had come to an end. The Court also observed that the Applicants had not submitted any credible evidence that the power-sharing agreement had broken up or that widespread intercommunal violence continued. The Court concluded that the Minister’s treatment of the post-election situation provided no basis for challenging his decision. The Court further noted that the Minister was entitled to rely, expressly or implicitly, on credibility findings made against the Applicants by the Refugee Applications Commissioner and the Refugee Appeals Tribunal. For these reasons, the reliefs sought by the Applicants were refused.
