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Cite as: [2008] IEHC 102

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Neutral Citation No: [2008] IEHC 102

THE HIGH COURT

[2006 No. 784 J.R.]

BETWEEN

M. T. J.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

AND THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

Ex-tempore Judgment of Mr. Justice Birmingham delivered the 17^th day of April, 2008.

1.1 The applicant states that she is Liberian born and gives her date of birth as the 16^th June, 1987. She is the mother of a young daughter, who was born in the State on the 4^th January, 2005. Ms. Johnson is seeking asylum in the State. Her application has been processed through the system in the usual way. On the 16^th May, 2006 the member of the Refugee Appeals Tribunal (R.A.T.) to whom the appeal in this case was assigned issued a decision which affirmed the recommendation of O.R.A.C. that the applicant not be declared a refugee.

1.2 By way of general background, it should be explained that the case put forward by the applicant is that members of her family were killed by forces supporting Charles Taylor during the Liberian civil war at a time when she was aged three years approximately. She was brought by an uncle to Nigeria and her childhood was spent as a displaced person in a refugee camp.

3.1 She states that when she was approximately thirteen years old she was given or sold to a local chieftain as a domestic servant. Thereafter she was the victim of very serious sexual and physical abuse by him over a four year period. In May, 2004, she escaped with the assistance of the chief's son who had become her boyfriend and had promised to marry her and came to Ireland. The case is that she could not return and cannot be returned to Liberia because of the risks posed to her from Ex Combattants, those who had killed her family members and particularly given her status as a young single woman and the mother of an infant.

4. The basis of the challenge

4.1 The claim was rejected by the Tribunal Member who did not regard her account as credible. The basis of the challenge relates to how the issue of credibility was approached and the conclusion reached in relation to credibility.

4.2 In particular it is said the decision is flawed because the Tribunal Member did not take into account in assessing credibility and in considering how the evidence had been given, the very particularly vulnerable status of the applicant.

4.3 It is in this context that the applicant's stated date of birth becomes particularly relevant. The applicant arrived unaccompanied in the State in November, 2004. Accordingly, on the basis of her claimed date of birth she was an unaccompanied minor aged approximately seventeen and half years when she arrived in the State.

4.4 The claimed date of birth became the subject of controversy and an age assessment interview was conducted on the 22^nd November, 2004 by the officials of O.R.A.C. who concluded that the applicant was an adult and not a minor, commenting that they reached that conclusion on the basis of her physical appearance and level of maturity.

4.5 This conclusion has significant implications for how her application was treated. Because of the conclusion reached in relation to her age, she was now treated as an adult. In practical terms this meant that she was housed in an adult hostel, was not provided with assistance by the H.S.E. and did not have the services of a social worker and was not provided with the services of a solicitor for the s.11 interview.

4.6 The conclusion that she was not a minor is criticised. It is pointed out that the procedures followed during the age assessment process did not accord with the procedure recommended by Finlay Geoghegan J. in Moke v. R.A.C., 6^th October, 2005. Certainly, it seems the procedure followed did not comply with what was identified as minimum procedural requirements in that case. In particular it does not appear that the applicant was told in simple terms why the interviewers felt that her claimed date of birth might be a false one. Equally, it does not appear that she was told the reason for the adverse decision, nor was she told of the possibility of a reassessment. In fairness to the officials, their interview was conducted well before the decision in Moke became available.

4.7 However, that decision has never been challenged by way of judicial review. It must be said that initially the applicant found herself in something of a catch twenty-two situation in that the Refugee Legal Services (R.L.S.) felt precluded from initiating judicial review proceedings because the applicant was claiming to be a minor. On the other hand, it may be noted on the basis of her claimed date of birth she would have attained her majority on the 16^th June, 2005 and thereafter there was nothing to preclude a challenge.

4.8 It will be noted that the R.A.T. hearing took place on the 19^th September, 2005 by which stage there was no controversy that the applicant was an adult.

4.9 While the conclusion that she was older than her stated date of birth was not challenged formally in judicial review proceedings, the fact that she was processed as being of full age was raised as a significant issue in the notice of appeal to the R.A.T. The decision of the R.A.T. does not deal specifically with the age issue and there is no specific comment whether her age was considered a factor in assessing her evidence. This is criticised by Mr. O'Dwyer, counsel on behalf of the applicant who points out that the R.A.T. decision refers to information provided by the applicant when on her own account she was still a minor. In that regard the only specific finding arising from information clearly provided before June, 2005 relates to the fact that during the R.A.T. hearing she is recorded as saying that she had stated in the A.S.Y./Form that she belonged to the "Bassa Ethnic Group" and that she knew her ethnic origin on arrival in Ireland when in fact on the A.S.Y/Form she had stated that she did not her ethnic origin.

4.10 Assuming, though not deciding that the conclusion in relation to age was incorrect, which I regard as the prudent course given the deficiencies in the procedures followed during the assessment, it would appear from Moke as was pointed out by Clarke J. in Odunbaku, 1^st February, 2006 that the mere fact that there had been an invalid age assessment does not, of itself, necessarily lead to the conclusion that subsequent decisions made in the refugee process are invalid. In that case Clarke J. commented at para. 4.5:-

"It is, therefore, clear that in order that an invalid age assessment might be said to have affected subsequent decisions of R.A.C or R.A.T., it is necessary for the court to be satisfied that the impugned age decision had some material and practical effect upon the process before these other bodies.

4.11 Clarke J., in that case makes two points that are self-evidently correct. First of all that there can be little doubt that the assessment of an account given by a person (and in particular any alleged inaccuracies or inconsistencies in such an account) can be materially affected by the age of the person concerned. Secondly, while there may be formal consequences depending on whether an individual is just above or below a particular age, it is unlikely that there will be a significant impact on the assessment credibility if the gap between the perceived age and the actual age is a narrow one. He gives the example of the gap between eighteen years and one month and seventeen years and 11 months as one that would not have a practical affect.

4.12 In this case, on the applicant's account, there was an error to the extent that she was regarded as being an adult when she was in fact seven months short of her majority.

4.13 For my part, I cannot see how it can be suggested with any reality that a different approach to the assessment of credibility would have resulted if the assessor had proceeded on the basis which she was only seventeen years and five months old. Neither, do I think it is the case that information was extracted from her or obtained from her in an unfair manner because, on this hypothesis she was underage when she completed the A.S. 1 form, the questionnaire and attended for the s. 11 interview.

4.14 However, that is not the end of the matter because the argument is made that this was not any seventeen year old, but one, who for a number of reasons was particularly vulnerable and that this was a matter requiring explicit consideration. The factors identified as rendering her particularly vulnerable were the fact that she was heavily pregnant when she arrived in Ireland and that following the birth of her daughter in January 2005, that she experienced post-natal depression. So far as the medical situation is concerned a report provided by Dr. Shiela O'Sullivan, Consultant Psychiatrist indicated that she required psychiatric support and was prescribed anti-depressant medication.

4.15 The task of the Tribunal Member was to assess the credibility of the applicant following an oral hearing at which she had the opportunity to observe the applicant give her account, there can be no doubt, at all, that it must have been entirely obvious to her that she was dealing with a very young woman and the mother of a new baby. Even, if this was not obvious to her from what she was seeing and hearing herself the significance of the applicant's age was put starkly before her in the Notice of Appeal which had been submitted on her behalf. The Tribunal Member has stated specifically that she considered the Notice of Appeal, which is a matter of some significance given the authorities in this area.

4.16 I have considered in detail the decision with a view to seeing whether the findings in relation to credibility are likely to have been influenced by judgment as to the applicant's exact age.

4.17 The issues identified as undermining her credibility are set out at para. pp. 8 and 9 of the decision. While not all of the factors are of equal significance, and while not every possible decision maker would necessarily attached significance to all of them, it seems to me that whatever validity the points considered have or do not have will apply whether the applicant was seventeen years or twenty seven years.

4.18 Apart from the age issue there is a second element to the applicant's challenge relating to the substance of the decision. Two elements of the decision are criticised in particular. In the Notice of Appeal and at the hearing itself, arguments were advanced based on the applicant's particular vulnerability as a young mother, the so called gender issue, and secondly relating to the conclusion that it would be safe to return her to Liberia. A very considerable volume of country of origin information was put before the Tribunal Member. With truly impressive diligence the applicant's lawyers have studied that material and highlighted for the Tribunal passages dealing with the gender issues and the risks associated with life in Liberia.

4.19 The decision includes no specific reference to the gender issue and takes a positive view of the situation emerging in Liberia.

4.20 I have reviewed the exhibited material. It should be noted that the material contains an amount of duplication with some material repeated, and it must be said that the material is not the easiest to assess. As is widely known the history of Liberia throughout the late 20^th Century, early 21^st Century can only be described as appalling – the country endured 14 years of pretty much unrelenting civil war since the revolt of Christmas Eve, 1989 led by the so called War Lord, Charles Taylor. Between 1989 and 1996 alone, it is estimated 200,000 Liberians lost their lives and a further one million into refugee camps in neighbouring countries.

4.21 August, 2003 was a significant month in the recent history of Liberia. In that month Taylor went into exile in Nigeria paving the way for the formation of a national transitional Government comprising representatives of the former Government and representatives of a number of groups previously opposed to the Taylor regime including Liberians United for Reconciliation and Democracy (Lurd), operating out of and supported by Guinea and the Movement for Democracy in Liberia (Model). One difficulty with the country of origin information is that it from time to time moves backwards and forwards between the pre and post August, 2003 situation. Overall reading the reports the impression one has is that the establishment of a broadly based transitional Government was a very positive development but that it did not affect an immediate and complete transformation.

4.22 Two themes emerge from the material. On the one hand there is focus on the significance of the development and a celebration of how much has been achieved and how far the country has come. The other focus is on how much remains to be done.

4.23 This was not a case where there was a sharp divergence of views on a basic fact such as existed in K. v. Minister, 27^th June, 2007, where there was a very clear factual disagreement between sources as to whether an amnesty introduced by the Government was available to the applicant or not. Here it is not so much that there is a conflict as that different reports and indeed the same reports in different places put their emphasis somewhat differently. The role of the Tribunal Member was not so much to choose between conflicting material as to synthesize the entirety of the material to form an overview. The Tribunal's Member's assessment was as follows:-

"The situation in Liberia has improved and as of August, 2004 an estimated 50,000 Liberians have spontaneously returned to Liberia from neighbouring countries and the U.N.H.C.R. is assisting them. The U.N.H.C.R.'s position on the Treatment of Liberian Asylum Seekers and Return to Liberia (Africa/Bureau/D.I.P. 3^rd August, 2005 at Tab. 21 on file states that:-

'Due to the developing Peace Process and improving security situation, humanitarian agencies progressively regained assess to the population in need of assistance, particularly the I.D.P.'s. In the same vane, U.N.H.C.R. re-established its presence in six field locations, outside the city of Monrova, to provide protection and assistance to Ivorian and Sierra Leonean refugees and to facilitate the voluntary repatriation of Liberian refugees, as well as the return of the I.D.P.'s to their area of origin. As a result of these positive developments. U.N.H.C.H.R. started in October, 2004 to facilitate the voluntary repatriation of Liberian refugees to those counties which were declared 'safe' by the National Security Assessment Committee for Resettlement as well as providing assistance to I.D.P's wishing to return to those counties. With the continuing improvement in the security situation, in January, 2005 the last counties were declared 'safe for return'. Further, the U.K. home office report states that there were no reports that the N.T.G.L. (National Transitional Government of Liberia) has permitted any serious human rights of violation after it came to power. Law and order is returning to many parts of Liberia and international agencies are involved in assisting people to return to safe areas. It is therefore not reasonable that the applicant is at risk of being targeted on the basis of any of the convention grounds.'"

4.24 As I have already indicated, the source material discloses that the country still has a long way to go. The Tribunal Member seems to have placed particular attention on the approach of international agencies to returning displaced persons and to their view that the country was gradually on a county by county basis becoming safer.

4.25 It seems to me that this was an understandable and entirely logical approach and the Tribunal cannot be fairly criticised for taking the approach as she did.

4.26 Just as the decision make is not referred specifically to gender issues neither does it refer directly to passages in the material on which reliance had been placed by the applicant. However, the Tribunal Member concluded her decision as follows:-

"I have reached this decision after having considered all oral evidence given to a Tribunal, the Notice of Appeal and the grounds thereof, together with all the documentation attached thereto, and all records, reports, country of origin information (including the Psychiatric Report from the H.S.E.) that have been submitted to the Tribunal."

4.27 In G.K. v. Minister for Justice, Equality and Law Reform, [2002] 2 I.R. 418, Hardiman J. with whom Denham J. and Geoghegan J. agreed stated as follows:-

"A person claiming a decision making authority, has, contrary to its express statement, ignored representations which it has received must produce some evidence, direct or inferential, of that proposition before he can be said to have an arguable case."

4.28 In Banzuzi v. Minister for Justice, Equality and Law Reform, 18^th January, 2007, Feeney J. at p. 6 dealing with very a similar statement to that made by the member in this case commented as follows:-

"If that statement [that the material listed had been considered] is correct then the first ground in respect which relief is sought must fail. However, it is appropriate for the Court not only to consider the statement but also to have regard has to whether or not such statement might be a formula of words as part of the administrative process rather than a statement of the correct facts."

4.29 In this case the Tribunal Member had the advantage of a very careful and full Notice of Appeal prepared by her lawyer/advocate which was case specific, something which is not always the case. This confronted the member fairly and squarely with many of the issues now raised. I have already referred to the process by which the members attention was drawn to passages in the material regarded as being supportive of the applicant's case. In the circumstances I find it impossible to regard as realistic, the suggestion that the Tribunal Member did not address these issues and consider the arguments advanced.

4.30 In summary, I cannot see any basis on which the conclusions of the Tribunal Member can be challenged by reference to any established principle of judicial review. Accordingly I must now refuse the application. However, this will not be necessarily be the end of the road. The applicant will have an opportunity to make representations before any deportation order could be made. A deportation order if implemented would, in all likelihood return the applicant and her daughter to a country where she has not been since she was three years old. Such a decision could only be taken after the most careful consideration. If that situation is reached very careful consideration of up-to-date information on the current situation in Liberia will be required. However, if it arises at all, that is for the future, at this stage I am not satisfied that a case for seeking Judicial Review has been made out and I must refuse the reliefs sought.

Approved: Birmingham J.