High Court grants leave for judicial review of Refugee Appeals Tribunal decision on Mungiki persecution claim.

2005 IEHC 363

THE HIGH COURT

JUDICIAL REVIEW

[2005 No. 251 J.R.]

BETWEEN

VICTOR MUIA

APPLICANT

AND

MICHELLE O’GORMAN SITTING AS THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE EQUALITY AND LAW

REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Judgment of Mr. Justice Clarke delivered the 11th November, 2005.

1. Introduction

1.1 In these proceedings the applicant seeks leave to challenge, by way of juridical review, a decision of the first named respondent

in her capacity as the

Refugee Appeals Tribunal (“RAT”) member concerned, recommending a refusal of refugee status. The third and fourth named

respondents are named because of the possible constitutional issues which were addressed in the course of the hearing before me.

The applicant must show substantial grounds for his challenge in order to obtain leave. The test is now so well established that it is

unnecessary to repeat it here.

2 Background Facts

2.1 The applicant is a Kenyan national who was born on 27th March, 1986. It would appear that he arrived in the State on 25th April,

2003 and applied for asylum. The procedures by which his application for asylum were considered were in accordance with normal

practice in that the applicant completed the standard questionnaire and was subsequently interviewed by an officer of the Refugee

Applications Commissioner (“RAC”) on 21st July, 2004.

2.2 As appears from the questionnaire and the notes of that interview the substance of the claim to refugee status put forward by

the applicant was his fear of the Mungiki group in Kenya. In the course of both the questionnaire and the interview the applicant gave

details of events which had occurred in Kenya which, he contended, established a well founded fear of persecution for a convention

reason by virtue of his concerns about the Mungiki group.

2.3 The RAC prepared the report required by s. 13(1) of the Refugee Act 1996 (as amended) which recommended that the applicant

not be declared to be a refugee. That report was forwarded to the applicant under cover of a letter of 2nd November, 2004 informing

him of that decision.

2.4 It should also be noted that the report contained a finding or conclusion to the effect that s. 13(6)(a) of the Refugee Act 1996 as

amended applied. Such a finding involves a determination by the RAC that the relevant application had “no basis or a minimal basis”.

As a consequence of such a finding the applicant was not entitled to an oral hearing before the RAT.

2.5 A notice of appeal was, however, filed on behalf of the applicant to the RAT on 17th November, 2004. Because of the finding of

the RAC under s. 13 to the effect that s. 13(6)(a) applied the submissions and representations made on behalf of the applicant to the

RAT were in writing. On foot of a consideration of the case the RAT informed the applicant by letter dated 21st February, 2005 that

“the Tribunal has affirmed the recommendation of the Refugee Applications Commissioner given under s. 13 of the above Act”. There

was enclosed a copy of the written decision of the first named respondent dated 10th February.

3. The Decision of the RAT (Facts and Credibility)

3.1 That decision, which is the subject of the challenge in these proceedings, commences by specifying the manner in which the

appeal came before the RAT and setting out certain statutory and other legal principles applicable. Nothing turns on this aspect of

the decision. There follows under the heading “background information” a brief account of the position of the applicant which I should

set out. It reads: -

“The applicant is a Kenyan national and was born on 27th March, 1986. The applicant is a Catholic and is a member of the

Kikuyu ethnic group. The applicant lived with his father at Dandora, Nairobi before fleeing to a pastor’s house at Kibera

Nairobi. The applicant lived with his father and brother. His mother and two sisters had earlier fled the family home as

they feared female genital mutilation (FGM). The applicant’s case is based on a stated fear of persecution in Kenya by

members of the Mungiki sect. The applicant’s father and brother were ardent members of the sect. Before the applicant

could take the Mungiki oath the applicant fled his home and lived with a protestant pastor for six months. The pastor

organised the applicant’s travel to Ireland.

The applicant applied for a declaration of refugee status in Ireland on 29th May, 2003. The applicant’s claim is set out in

the questionnaire, interview, s. 13 report and the form 2 notice of appeal and need not be repeated here”.

3.2 There follows under the heading “assessment of the applicant’s claim” an analysis of certain aspects of the applicant’s evidence

which, in the view of the decision maker, gave rise to credibility issues.

3.3 It is unfortunate that, while raising credibility issues and indicating those aspects of the applicant’s account which gave rise to

those credibility issues, the decision maker does not appear to have specified in any clear terms those aspects of the applicant’s

account which, at the end of the day, she was not prepared to accept.

3.4 In Manzi -v- The Refugee Appeals Tribunal and Another (Unreported High Court, Clarke J., 8th November, 2005) (at para. 3.4) I

indicated that the view expressed by the US Appeals Court in Khup -v- Ashcroft [2004] U.S.A. pp. LEXIS represented the law in this

jurisdiction. It, therefore, seems to me that in the absence of a clear finding of lack of credibility on the part of the applicant

concerned, a Court exercising a review role must do so on the basis that the applicant’s evidence is correct.

3.5 While it may be inferred from the decision of the RAT in this case that at least certain aspects of the account given by the

applicant were not, in the view of the decision maker, credible, it nonetheless must also be inferred by virtue of the conclusions (to

which I will refer) that the decision maker appears to have been satisfied that the applicant had a well founded fear of the Mungiki

but that such fear was not for a convention reason. On that basis it would seem that it might be inferred that at least some of the

more significant aspects of the applicant’s account were regarded as credible. In those circumstances it is difficult to ascertain from

the decision, with any sufficient precision, precisely what aspects of the account were regarded as being established and what

aspects were not regarded as credible.

3.6 In those circumstances it seems to me to be at least arguable, sufficient for the purposes of leave, that the applicant is entitled

to have a court (such as this Court) exercising a judicial review function, treat his account as credible save to the extent that the

decision makes clear that the decision maker did not treat any relevant aspect of the account as being credible. In coming to that

view I would wish to make clear that it is not necessary for the decision maker to indicate a view in respect of each and every issue

of fact. It is, however, arguable that in the absence of the decision making clear what the conclusions of the decision maker are in

relation to credibility (to a sufficient extent to enable a Court to ascertain which facts the decision maker regarded as credible and

which he or she did not), the Court may arguably have to assume credibility in respect of facts which were not dealt with as to their

credibility either expressly or by necessary inference.

3.7 Therefore, if it be the case that a decision maker forms the view that the entire account of a particular applicant lacks sufficient

credibility to be relied on for the purposes of making a decision then that should be said in sufficiently clear terms that it can be

understood by all concerned. Provided such a finding is sustainable having regard to the jurisprudence of this Court, then it is not

appropriate to seek to go behind such a finding. As I pointed out in Manzi a finding of lack of credibility may, however, relate to some

but not all of an account. In those circumstances it seems to me to be important that the decision maker specifies those aspects

which are accepted and those aspects which are not. Where the decision maker does this (and again subject to the finding of lack of

credibility, insofar as it goes, being sustainable on the basis of the jurisprudence of this Court) it would again not be appropriate to

seek to go behind that determination.

3.8 For the purposes of this leave application I am prepared to accept that where there is ambiguity as to the extent of a finding of

lack of credibility then the applicant is entitled to the benefit of any such ambiguity.

3.9 I must, therefore, for the purposes of leave, treat the applicant’s account as fact save to the extent that there may be a

necessary inference from what is found in the decision which leads to a sustainable conclusion that a certain aspect or aspects of

that account were found not to be credible.

4. The Decision (State Protection)

4.1 In any event having expressed certain views about credibility, the decision goes on to refer to country of origin information

detailing actions taken by the Kenyan authorities against the Mungiki. There follows reference to passages from the judgment of

Finnegan J. in this Court in Zgnatef -v- The Minister for Justice Equality and Law Reform (Unreported, High Court, Finnegan J., 29th

March, 2001) and the authorities referred to in those passages concerning the test that should to be applied where it might be

suggested that there is adequate State protection available in the country concerned in relation to the form of persecution feared.

4.2 Having concluded a review of the legal materials by reference to para. 100 of the United Nations High Commissioner on Refugees

handbook (which relates again to State protection) the decision maker goes on to reach conclusions in the following terms:-

“There is no evidence of persecution on the grounds of race, religion, nationality or political opinion. While the Mungiki

could be classified as a criminal group, the applicant did not wish to join this illegal organisation and country of origin

information would suggest that State protection would be available to him. In the absence of a Convention Nexis Section

13(6)(a) of the Refugee Act (as amended) applies to the applicant.”

4.3 It is of course the case that it is inappropriate to demand that a decision of a tribunal such as the RAT should be in any particular

form. It is therefore necessary, in any review, to look at the decision as a whole. Even on that basis it is difficult to determine the

extent to which any concerns which the decision maker may have had as to the applicant’s credibility actually influence the final

decision.

4.4 For the purposes of a leave application I am satisfied that it is at least arguable that a fair reading of the decision as a whole

leads to the conclusion that the reason the decision maker was not prepared to recommend refugee status was that the decision

maker took the view that: -

(a) The applicant had a fear of the Mungiki, though not perhaps to the extent which he claimed. It is, unfortunately,

difficult, for the reasons set out above, to say precisely how far short of the amount claimed;

(b) That fear might, arguably, amount to a fear of persecution but not, by reason of the criminal nature of the Mungiki, to

persecution for a convention reason (I will return to this issue at para 5.); and

(c) There was adequate State protection in relation to the Mungiki.

Those decisions need to be seen in the light of the detailed submissions submitted on 15th December, 2004, on behalf of the

applicant to the RAT.

4.5 On the question of State protection those submissions referred to a significant volume of country of origin information which tends

to suggest that former members (or “defectors” as they are referred to) of the Mungiki are being subjected to a regime of murder,

revenge and terror. It is, of course, the case that in reaching a decision on the adequacy of State protection it is unnecessary to be

satisfied that the State in question is in a position (which no State is) to provide absolute protection to its citizens. It is equally the

case that it is necessary, in each case, to form a judgment on the basis of relevant country of origin information as to whether the

degree of protection provided by the State is, in all the circumstances, sufficient to warrant a finding that the applicant concerned

does not qualify for refugee status. However, it seems to me that it is at least arguable that in coming to such a conclusion the

decision maker is obliged at least to address the substance of the case on that issue made by or on behalf of the applicant. While the

decision does state that the decision maker has taken into account the submissions made on behalf of the applicant there is nothing

in the body of the decision that shows that the decision maker addressed, to any extent, the country of origin information put

forward on behalf of and favourable to the applicant. If the decision demonstrated that due consideration had been given to that

information but that, in the light of the alternative information available (which, in fact, is referred to in the decision), and following a

rational analysis of the totality of the evidence, a conclusion was reached that State protection was adequate then it might very well

be difficult to seek to go behind that.

4.6 Where, however, as here, there is no evidence to be found in the decision that the country of origin information favourable to the

applicant’s case was considered and, equally, as a consequence, no rational explanation as to why it was rejected, it seems to me

that there are at least arguable grounds for the applicant’s contention that the decision maker did not take into account relevant

considerations.

5. The Decision (Criminal Status of the Mungiki)

5.1 On the question of whether the status of the Mungiki, having regard to their criminal activities, was such that a well founded fear

of persecution by them could not amount to such a fear for a convention reason, I have also come to the view that the applicant has

also established substantial grounds for challenge. There can be little doubt that there was ample evidence to support the view that

the Mungiki have, particularly in recent times, engaged in significant criminal activity. However, there was also ample evidence before

the decision maker from which it might at least be inferred that the Mungiki were either a quasi religious or political grouping. Again it

does not appear to me to be the case that a decision maker was necessarily constrained to reach any particular view on the totality

of that evidence. It is, however, at least arguable sufficient for the purposes of leave, that the decision maker was required to

address the substance of the applicant’s case to the effect that the Mungiki were a religious or political group and that he (the

applicant), as a defector, or more accurately a person who declined to join despite familial expectations that he would, should,

therefore, be properly treated as being analogous to a conscientious objector to a political or religious group. Again it does not appear

to me that the decision addresses the substance of the applicant’s case in this regard.

5.2 It is, of course, again the case that the relevant evidence does not lead, necessarily, to any one conclusion. However, there is

again no evidence to be found in the decision that the decision maker engaged in a rational analysis of the country of origin

information concerning the nature and status of the Mungiki in a sufficient way to reject that aspect of the country of origin

information which suggests that the grouping may have a quasi religious or political status. In expressing that view I am mindful of the

fact that there is at least some evidence to suggest that the grouping may have changed in their nature over time. However the

decision, other than stating that the Mungiki could be classified as a criminal group, does not engage in any express analysis of the

evidence to the contrary or any reasoning as to why that evidence should be rejected.

6. Constitutional issues

6.1 It became clear in the course of the hearing that the reason for the inclusion of constitutional issues in the statement of grounds

concerned an issue which might have arisen, (but which did not), if it were suggested that the decision maker had had regard to

materials which had not been, at the time of the decision of the RAT, available to the applicant either as a result of the process

before the RAC or by virtue of those materials having been submitted by the applicant himself to the RAT. However it does not appear

that that issue now arises and therefore those constitutional issues do not need to be pursued further.

7. Conclusions

7.1 As is clear from the above I am satisfied that the applicant has made out arguable grounds sufficient for the grant of leave to

seek each of the reliefs sought in these proceedings which are an order of certiorari directed to the decision of the RAT and ancillary

declaratory relief. While I am satisfied that the grounds upon which I have indicated that I am prepared to grant leave are

encompassed within the totality of the grounds set out in the intended statement grounding the application for judicial review, it

seems to me that it would be more appropriate if the grounds were somewhat recast to reflect the basis upon which I have indicated

leave should be granted.

7.2 For the avoidance of doubt I should say that it does not appear to me that the aspects of the decision sought to be challenged

are irrational in that there is, in my view, evidence which could lead a reasonable decision maker to form the views taken. However,

certain aspects of the decision which I have identified in the course of this judgment are, arguably, made on the basis of a failure to

take into account all relevant considerations. This comment applies to the determination that the Mungiki was a purely criminal

organisation and thus, also to the consequences which flowed from that conclusion concerning the absence of a Convention Nexus

between any well founded fear of persecution and such reason. The comment also applies to the issue of State protection. Insofar as

the decision maker reached individual conclusions as to the credibility of specific aspects of the applicant’s evidence I am not

satisfied that there are arguable grounds to go behind those aspect of the decision. However, it does seem to me that there are

arguable grounds for suggesting that the applicant is entitled, in the circumstances of this case, to have any aspect of his account

which was not the subject of a clear finding of lack of credibility treated as credible for the purposes of review.

7.3 Finally it should be noted that the application seeking leave was, by a short period, out of time. However, no point is taken in this

regard and I would, therefore, also propose making an order extending time.