Judgment Title: W. & Anor -v- Refugee Appeals Tribunal & Anor
Composition of Court:
Judgment by: Edwards J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 357
THE HIGH COURT
2008 1023 JR
FGW and SS (a minor suing by her mother and next friend FGW)
THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR
JUSTICE EQUALITY AND LAW REFORM
Judgment of Mr. Justice John Edwards delivered the 7th day of October, 2010
The Court would like to thank the parties in this matter for their very helpful submissions, both written and oral. I have decided that both Ms W and her daughter should be granted the leave that they seek because I am satisfied that they have demonstrated substantial grounds under the specific headings that I will deal with shortly.
The decision of the RAT
The Applicant may well have fears of returning to Liberia and the Ivory Coast however what the Tribunal has to decide is that if she has such fears are they well founded fears based on proper Convention grounds. In assessing any application the Tribunal must have regard to the credibility and the coherence of the account given by the Applicant.
I have considered all matters before me in particular the SPIRASI report. However the Applicant has not satisfied me at any level that she has a well founded fear of persecution on any Convention ground and that being so the Applicant is not a refugee and accordingly the decision of the Commissioner is upheld.
The applicants have exhibited a lengthy and detailed proposed Statement of Grounds setting out the basis on which they seek to challenge the Tribunal Member’s decision. The grounds pleaded may be summarized as follows:
• The Tribunal Member failed to properly consider and determine whether each of the applicants respectively have a well founded fear of persecution by reason of their experiences in Liberia and the Ivory Coast, respectively;
• The Tribunal Member failed to give separate consideration to the claim of the second named applicant;
• The Tribunal Member arrived at conclusions that were unreasonable, irrational and perverse and which failed to take account of evidence submitted by the applicants and in particular a SPIRASI report;
• The Tribunal Member erred in law and/or acted ultra vires s. 2 of the Refugee Act 1996 and/or acted in breach of fair procedures and/or acted in breach of natural and constitutional justice in failing to properly consider and determine the applicants respective claims;
• The Tribunal Member failed to take account of objective country of origin information, failed to assess persecutory risk by reference to it, and selectively relied upon country of origin information;
• The Tribunal Member erred in law and breached s. 2 of the Refugee Act 1996 and/or the European Communities (Eligibility for Protection) Regulations (SI 518/2006) and/or Council Directive 2004/38/EC in the manner in which she assessed state protection;
• The Tribunal Member failed to have proper regard to and to correctly apply SI 518/2006 and/or Council Directive 2004/38/EC;
• The Tribunal Member failed to take proper account of the personal circumstances of the first named applicant in breach of Regulation 5(1)(c) of SI 518/2006;
• The Tribunal Member conducted a flawed credibility assessment by engaging in personal conjecture and speculation, by failing to put to put to the first named applicant issues on which she later made negative findings, by making findings without an evidential basis and/or without giving any or any adequate reasons, by failing to properly consider and give due weight to the first named applicant’s account of events and by failing to take account of objective country of origin information;
• The Tribunal Member applied an incorrect standard of proof, an incorrect burden of proof and failed to apply a forward looking test to the application.
The alleged failure to consider the first named applicant’s claim of a well founded fear by reason of the risk of being raped in Liberia
It was further submitted that the Tribunal had before it a wealth of country of origin information demonstrating the real risk to the first named applicant of being raped with impunity in Liberia. A full list is contained in paragraph 16 of the first named applicant’s affidavit sworn on the 4th of September 2008. The material referred to included but was not confined to (i) a Human Rights Watch report of January 2008, (ii) a report from the United Nations Office for the Coordination of Humanitarian Affairs - Integrated Regional Information Networks (lRIN) entitled: "Liberia: Government, women's groups decry post-war sexual violence", dated 15 January 2007; (iii) a report from the Internal Displacement Monitoring Centre entitled "Liberia: Key challenge is ensuring sustainability of IDP return" dated 3 August 2006 and (iv) an Amnesty International report, of 2004, entitled "Liberia: No impunity for rape - a crime against humanity and a war crime". There are extensive quotations from these documents, which the Court has duly noted, in the applicants’ written submissions. It has been submitted that this material was not taken into account by the Tribunal Member, either sufficiently or at all.
Further, it was submitted on behalf of the first named applicant that having made a distinct claim for refugee status by reason of risk of rape in Liberia, the first named applicant was entitled to have it considered and determined by the Tribunal Member. It was urged that each distinct claim made by an applicant must be considered and determined in accordance with the relevant legal principles and in support of this the Court was referred to S.I. v. Minister for Justice Equality and Law Reform and the Refugee Appeals Tribunal  IEHC 165. It was submitted that the duty to assess all aspects of an applicant's refugee status claim was also acknowledged by the High Court in Egharevba v. Refugee Applications Commissioner (Unreported, High Court, Clark J., 19th February 2008). In that case an argument concerning the entitlement of one of the applicants to a passport was made before the Tribunal but it was contended that the Tribunal, in reaching its determination, failed to consider that aspect of the case. The Court, granting leave on the point, stated at paragraph 66:
In rejoinder, Counsel for the applicant sought to emphasise that while the oral hearing may have focussed principally on those aspects of the first named applicant’s claim identified by the respondents, there was no question of other aspects of the claim being abandoned.
Having considered all of the documents in this matter including the Notice of Appeal, the first named applicant’s affidavit and the submissions of the parties, I am satisfied that the first named applicant has not just an arguable point, but has in fact demonstrated substantial grounds, for complaining that an important aspect of her case was either not considered or was not considered adequately by the Tribunal Member.
The alleged failure to take account of the personal circumstances of the first named applicant
The first named applicant submits that Regulation 5(1 )(c) of the European Communities (Eligibility for Protection) Regulations 2006 (S.1. No. 518 of 2006) is relevant to such persons. Under Regulation 5(1 )(c), the personal circumstances of each applicant must be examined with a view to determining whether their personal circumstances are such that acts to which they could be exposed would amount to persecution in their case notwithstanding that the same exposure may not constitute persecution of another applicant with different personal circumstances. It is urged that the personal circumstances of the first applicant, who has suffered severe mental trauma as a result of her past persecution, place her in the category of persons alluded to by the UNHCR in their position paper herein who despite the ending of the war continue to have a well-founded fear of persecution in Liberia.
It was further urged that although the Tribunal Member had doubts about aspects of the first named applicant’s account (and in particular the account of her son’s death, her travel details and the likelihood of one particular daughter being singled out for FGM) the Tribunal must be taken to have accepted all other aspects of her account. Moreover, it was submitted that the Tribunal clearly believed the key elements of the first named applicant’s claim as the Tribunal it’s sympathy for her plight.
It was urged that although the Tribunal accepted that the first applicant had already been subject to persecution it failed to accord that past persecution the status it warranted under Regulation 5(2).
Regulation 5(2) specifies that:
The Court was referred to the case of M.S.T. v. Minister for Justice, Equality and Law Reform  IEHC 529 in which the meaning of the last clause of Regulation 5(2) was considered. Although that case concerned a judicial review challenge to a decision refusing subsidiary protection, the first named applicant submits that the interpretation given to the provision in M.S.T. must apply also to refugee status determination. At para. 29, p. 14 of the judgment in M.S.T., the additional wording at the end of the provision was described as a "counter-exception" to the effect "that, even if there is no reason for considering that the previous serious harm will now be repeated, the historic serious harm may be such that the fact of its occurrence alone can give rise to compelling reasons for recognising eligibility."
It has been submitted on behalf of the first named applicant that the trauma of an incident might be enough to justify the granting of protection even where there was an actual doubt as to the likelihood of repetition. In seeking to apply that notion to the instant case, she contends that the trauma which she has suffered has had such a severe effect on her as to create compelling reasons as to why she should be granted refugee status, notwithstanding any doubts harboured by the Tribunal concerning the likelihood of repetition.
It was also submitted that material was placed before the Tribunal, in particular the SPIRASI report, which was sufficient to put the Tribunal on enquiry as to whether the last clause of Regulation 5(2) was applicable to this case. It was urged that the Tribunal failed to address whether it was so applicable, and erred in law in that regard.
In the SPIRASI report under the heading “Current Situation” it was stated:
Ms. W attends her GP every two weeks with various symptoms such as headaches, abdominal pains and sleep disturbance. She is currently on medication to treat these problems."
As Ms. W is experiencing considerable psychosomatic symptoms relating to her previous trauma, I have referred her for counselling, massage and physical therapy at the Centre for the Care of Survivors of Torture."
In reply to these arguments the respondents have sought to characterise the submission that because the first named applicant was allegedly the victim of particularly atrocious past persecution she is entitled to asylum as being “incorrect in law.” They say that, pursuant to the Refugee Act, 1996, the Tribunal’s jurisdiction is confined to considering whether or not an applicant for asylum is a “refugee” within the meaning of Section 2 of the Refugee Act, 1996, as amended.
Further, the respondents contend that in any case the SPIRASI Report does not provide the necessary material for the interpretation for which the Applicants contend. In fact, it relates in the main to the first named applicant’s work as a prostitute in the Ivory Coast, which on any version of events is irrelevant to her claim for asylum as her country of reference is Liberia.
The Court is not convinced that the first named applicant has demonstrated substantial grounds under this heading to the extent that her claim for refugee status is based upon a fear of persecution deriving from her experiences of the former war in Liberia, the absence of a family network there, or the fact that times are hard there. Prima facie her personal circumstances were taken into account by the Tribunal in its consideration of those matters, and in any case, as Cooke J has pointed out in the M.S.T. case, the Regulation 5(2) counter-exception is purely facultative and the words in question do not “give rise to a new entitlement” (to refugee status, in this instance). As the respondents have correctly stated, the Tribunal’s jurisdiction is confined to considering whether or not an applicant for asylum is a “refugee” within the meaning of Section 2 of the Refugee Act, 1996, as amended.
However, be that as it may, this Court takes the view that in circumstances where it has already found that the first named applicant has advanced substantial grounds for contending that an important aspect of her case was either not considered or was not considered adequately by the Tribunal Member, namely that she also has a well founded fear of persecution on account of having been raped and sexually assaulted in the circumstances described by her, it follows that she must also be allowed to make the case that there was either no, or alternatively an insufficient, consideration of her personal circumstances in that particular context (i.e. the previous harm suffered by her by virtue of having been raped and sexually violated, and her present physical and mental condition to the extent that it is being affected or influenced, or may in the future be affected or influenced, on account of that harm), as required by Regulation 5. Accordingly, and to that limited extent, the Court is also satisfied that the first named applicant has made out substantial grounds for contending that there was a failure to take account of her personal circumstances as required by regulation 5.
The alleged failure to give separate consideration to the claim of the second named applicant
It was pointed out by the respondents that the second named applicant was just 13 years of age at the date of the application for asylum. Moreover, the first named applicant requested that the Second Named Applicant’s application for asylum would be considered together with hers.
The respondents say that although the situation of the second named applicant was not considered separately it was nonetheless considered. They point out that insofar as it is contended that the situation in the Ivory Coast was not considered by the Tribunal, this is manifestly incorrect, because there is ample reference to this country throughout the analysis, and indeed at the commencement of the analysis, there is a reference to both Liberia and the Ivory Coast. The respondents say that it is clear that the alleged situation of the applicants in the Ivory Coast was not overlooked by the Tribunal.
The respondents also join issue with the claim in the written submissions filed on behalf of the applicants that the Tribunal assessed the claim of the first named applicant only. They say that this is not correct. The Tribunal Member refers at p. 2 and p. 14 of the Decision to the fact that the claim made by the first named applicant at the hearing on behalf of both applicants was that they would both be killed by the first named applicant’s second husband if they returned to the Ivory Coast. The respondents contend that this claim was clearly considered, and that it was noted that the applicants had lived safely in the Ivory Coast, and that they had not sought state protection. The respondents emphasise that no separate or independent claim was made in relation to the second named applicant, and the threat to the second named applicant arose from the same events and from the same source as in relation to the first named applicant.
With regret the Court considers that, in the particular circumstances of this case, the respondents position is flawed and based upon a non-sequitur. The second named applicant must be regarded as having substantial grounds for arguing that the position of the applicants could not legitimately be equated and considered as one where the first and second named applicants do not share the same country of origin. The reference country is different in each case, their legal positions are potentially different, and as a matter of logic they cannot be said to be in the same situation. For example, even though they might each face a threat from the same event or circumstance, that same event or circumstance might give rise to eligibility for refugee status in the case of one of them but not in the case of the other simply by virtue of the fact that they each have a different reference country of origin. In the Court’s view the second named applicant has made out substantial grounds for arguing that her claim should have been considered separately.