Ireland - High Court, 5 February 2010, S.O. (a minor) v Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform [2010] IEHC 151
| Country of Decision: | Ireland |
| Country of applicant: | Afghanistan |
| Court name: | High Court |
| Date of decision: | 05-02-2010 |
| Citation: | [2010] IEHC 151 |
| Additional citation: | 2007 No.1535 J.R. |
Keywords:
| Keywords |
|
Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
|
Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
|
Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
|
Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
|
Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
|
Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
Headnote:
This case concerned the treatment of evidence from unaccompanied minors. The applicant was an unaccompanied minor from Afghanistan. He claimed asylum on the basis of a fear of persecution both by the Taliban and the Afghan government. The Refugee Appeals Tribunal refused his refugee appeal on the grounds that the applicant was not credible and that his claim was not objectively well-founded. The Court found that the Tribunal Member had engaged in impermissible speculation and conjecture in relation to the applicant’s prospect of State protection in Afghanistan, that the Tribunal Member had imputed expectations to the applicant without any consideration of the applicant’s level of maturity at the time, and that the Tribunal Member had failed to consider whether the applicant’s fears in relation to the Taliban were realistic having regard to his age, maturity and the particular circumstances in Northern Afghanistan.
Facts:
The applicant was an Afghan national who arrived in Ireland in 2006 as an unaccompanied minor aged 12 years. He claimed asylum on the basis of a fear of persecution both by the Taliban and the new Afghan government.He said that he feared he would be forcibly recruited as a child suicide bomber by the Taliban (as his late uncle had been a Taliban commander) but that he also feared the Afghan authorities because he was suspected of involvement with the Taliban.
The Refugee Applications Commissioner refused his application at first instance on the basis that his evidence at interview was not credible. The Appeals Tribunal affirmed the Commissioner’s recommendation on the grounds that the applicant was not credible and that his claim was not objectively well-founded because country of origin information (UK Home Office Country Report) revealed that low level members of the Taliban were not at risk.
Decision & reasoning:
The appeal decision was quashed and the appeal sent back to the Tribunal for a re-consideration. The Court (Edwards J.) found:
A)The Tribunal member's decision with respect to the applicant's claimed fear of persecution by the Taliban was largely based on speculation and conjecture. No country of origin information is called in aid to support the decision with respect to the apprehended fear of the Taliban.
B)The Tribunal Member did not engage with the applicant's expressed worry that he was at risk of being press-ganged as a child soldier or that he might even be forced to undertake a suicide bombing.
C)To the extent that there is a consideration of the possibility that the applicant could have availed of state protection in relation to his fear of the Taliban the approach was speculative and conjectural, particularly in circumstances where the available country of origin information was to the effect that the availability of state protection in Afghanistan was confined to certain parts of the country, such as Kabul (the applicant was from Baghlan in Northern Afghanistan). Internal re-location was not considered or mentioned in the decision.
D)The Tribunal Member should not base credibility decisions on speculation or conjecture. In the absence of extrinsic evidence tending to show that the claimed fear was not well founded when considered objectively, the Tribunal Member should not have speculated or engaged in conjecture in the way that she did, but rather should have proceeded to consider the applicant's subjective credibility. Moreover, in doing so, she was required to liberally apply to him the benefit of the doubt having regard to his age and immaturity.
E)The Tribunal Member imputed expectations to the applicant without any consideration of his maturity or as to whether those expectations were realistic having regard to his maturity and particular circumstances.
F)The applicant was not afforded a fair hearing in all the circumstances.
Outcome:
Decision quashed.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| UNCRC |
| UNCRC - Art 3 |
Cited Cases:
| Cited Cases |
| Ireland - Da Silveiria v Refugee Appeals Tribunal (Unreported, High Court, Peart J. 09/07/2004) |
| Ireland - Zhuchkova v The Minister for Justice, Equality and Law Reform [2004] IEHC 414 |
Other sources:
Separated Children in Europe Programme, SCEP Statement of Good Practice, March 2010, Fourth edition, March 2010
EU Council Resolution of 26 June 1997 on Unaccompanied Minors who are Nationals Of Third Countries (97/C 221/03)