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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> MPS (Cameroon) & Ors -v- Refugee Appeals Tribunal & Ors [2015] IEHC 31 (19 January 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H31.html
Cite as: [2015] IEHC 31
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Judgment
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Neutral Citation: [2015] IEHC 31 THE HIGH COURT JUDICIAL REVIEW [2011 No. 294 J.R.] BETWEEN MPA (CAMEROON) OA (CAMEROON) (A MINOR SUING BY HER MOTHER AND NEXT FRIEND MPA) APPLICANT AND
REFUGEE APPEALS TRIBUNAL, MINISTER FOR JUSTICE EQUALITY AND LAW REFORM ATTORNEY GENERAL IRELAND RESPONDENTS JUDGMENT of Ms. Justice Stewart delivered on the 19th day of January, 2015 1. This is a telescoped hearing for judicial review seeking orders of certiorari to quash a decision of the Refugee Appeals Tribunal dated the 28th February, 2011, and remitting the matter a de novo consideration by a different tribunal member. Background 3. The mother attended a Dublin hospital on the 2nd September, 2010 when she was diagnosed HIV positive and is in receipt of regular treatment in respect of same since that time. The Refugee Applications Commissioner interviewed the mother on the 18th November, 2010, and, by letter and report dated 30th December, 2010, made adverse credibility findings followed by findings in respect of state protection, internal relocation and a lack of nexus to the Geneva Convention. A notice of appeal was submitted to the Refugee Appeals Tribunal on the 14th January, 2011, and the hearing in respect of said appeal was held on the 7th February, 2011. The applicant was advised in a letter dated 28th February, 2011, and received by the applicant no earlier than 3rd March, 2011, that the application for refugee status was refused. The decision of the Refugee Appeals Tribunal was enclosed with the letter. The tribunal affirmed the adverse credibility findings made by the Commissioner and further held that the discrimination facing HIV sufferers in Cameroon did not amount to persecution. Impugned Decision 5. Additionally the tribunal member considered the potential discrimination that the applicant might suffer as a HIV positive woman in Cameroon, finding that this did not amount to persecution in the conventional sense. The tribunal pointed to country of origin information as evidencing the treatments available in Cameroon for those afflicted with the disease. Counsel on behalf of the applicant, Mr. Michael Conlon S.C., conceded at the hearing before this Court that the complaint in respect of this aspect of the case was not being pursued and it was conceded that there is not sufficient discrimination in Cameroon in respect of AIDS/HIV sufferers that would sustain a claim before this Court. Submissions 7. The applicants argue that the claim was exclusively refused by reason of adverse credibility findings made on the basis of conjecture, repeating the adverse credibility findings made by the Commissioner in the s.13 report. It was submitted that it was incumbent on the tribunal to have reasonable regard to all significant documents, including country and medical reports when considering credibility as set out in I.R. v. Minister for Justice, Equality and Law Reform & Refugee Appeals Tribunal [2009] IEHC 353, and to give reasons for the rejection of significant aspects of the evidence given by the applicants or elements of their claims, as in E.R. v. Refugee Appeals Tribunal [2013] IEHC 165. 8. In particular, the case advanced by the applicants was that the tribunal failed to perform the fundamental task of making an assessment in respect of the evidence before it and thereafter expressing in clear terms and making specific findings in relation to the following matters:
2) Whether such an issue is regarded as an abomination in Cameroon; 3) Whether the mother was subsequently subjected to sex slavery to ensure her survival and that of her daughter; and 4) Whether the mother was infected with the HIV/ AIDS virus as a result of her rape by either her own father and/or the taxi driver. 10. The applicants submit that the tribunal member having determined the claims on the basis of adverse credibility findings, but without making specific findings on the claim of rape, and resulting conception, by the applicant’s own father and the society’s reaction to such an event as noted in the country of origin reports, the tribunal failed, according to the applicants, in its duty to consider the possibility of exposure to persecution in the future based on the particular circumstances of the applicants’ case. 11. On behalf of the respondents, Ms. Cindy Carroll, B.L. submits that all matters put forward on behalf of the applicants were considered by the tribunal member and that there is no evidence to suggest otherwise. Further she submits that the tribunal member had regard to the position of the child. The first named applicant was specifically given the option of having her daughter’s application for asylum considered along with her own. The respondents further submit that the position of the daughter is inextricably linked with that of her mother and that no separate fear of persecution is identified on her behalf. Counsel refers the Court to the decision of Peart J in Nwole & ors. v. Minister for Justice, Equality and Law Reform & anor. [2004] IEHC 433; Z.Z. & ors. v. Minister for Justice, Equality and Law Reform & anor. [2007] IEHC 236; and S.E. (a minor) v. Refugee Appeals Tribunal & ors. [2014] IEHC 240 to support the proposition that persons who are given an opportunity to have their child’s application included in their own application must be treated differently from those to whom no such opportunity is afforded. 12. The respondents further submit that the assessment of credibility is entirely in line with Mr Justice Cooke’s decision in I.R. v. Minister for Justice Equality and Law Reform and the Refugee Appeals Tribunal [2009] IEHC 353 and the decision of R.O. v. Minister for Justice, Equality and Law Reform & Refugee Appeals Tribunal [2012] IEHC 573. 13. The respondents submit that looking at the impugned decision that any third party reading the decision would not be of any doubt as to why the first applicant was found not to be credible on a number of points. 14. The respondents assert that it is unclear as to what points the applicants are making in relation to a failure to assess the core claim. All of the circumstances as submitted were considered; however, the respondents concede that there is no finding on the veracity of the claim that the first named applicant was raped by her father as a result of which she conceived her daughter, the second named applicant, nor is there a finding in respect of the claim that she was a sex slave to the taxi driver who initially offered her assistance. However, the respondents contend that it is clear that the tribunal member did not believe her on a number of fundamental matters which were related to these claims. 15. The respondents submit that without DNA evidence establishing the paternity of the second applicant on medical and /or SPIRASI reports following the alleged rape that it is difficult to assess how a claim of rape in 2006 could be assessed by any decision-maker in 2011. Findings 17. The seminal case of I.R v. Minister for Justice, Equality and Law Reform & Refugee Appeals Tribunal, a decision of Mr. Justice Cooke, makes it clear that where documentary evidence is put forward by an applicant, that if the Refugee Appeals Tribunal, the decision-maker, is going to ignore and/or reject that documentary evidence it must state reasons for doing so. In this case the applicant in the initial application form, the ASY1 form, gives the name of her own father as her daughter’s father. In the absence of a rejection of this finding it must be presumed that this is accepted by the tribunal member. Country of origin information supports the proposition that a child born in incest would be regarded as an abomination in Cameroon. Again, there was no finding in relation to this matter by the tribunal member nor was there any finding in relation to the birth certificate of the daughter which was produced before the tribunal. 18. On p.23 of the booklet of pleadings furnished to the Court, UA, the first named applicant’s father was named as the father of the second named applicant, i.e. the daughter. On p.42 UA was named as the applicant’s own father and on p.49 UA was named as the applicant’s father. None of these matters were addressed by the tribunal member. Further the tribunal member did not make any findings, adverse or otherwise in relation to the veracity or otherwise of the applicant’s story of initially being assisted by a taxi driver who then subjected her to months of sex slavery before her eventual escape with the assistance of the nun known only as Sister Mary. 19. It seems to me that on the basis of the failure on the part of the tribunal member to make findings in respect of parts of the application set out heretofore, the findings in respect of credibility cannot stand. I therefore propose to grant leave and to grant orders of certiorari as sought at para.1 of the notice of motion and I will further make an order remitting the matter for a de novo consideration by a different tribunal member. |