High Court extends time and grants leave for judicial review of Refugee Appeals Tribunal decision on asylum claim.

Neutral Citation Number: [2010] IEHC 504

THE HIGH COURT

JUDICIAL REVIEW

2008 626 JR

BETWEEN

A. A.

APPLICANT

AND

MINISTER FOR JUSTICE AND LAW REFORM AND REFUGEE APPEALS TRIBUNAL

RESPONDENTS

JUDGMENT of Mr. Justice Ryan delivered the 5th November, 2010

1. This is an application for leave to bring judicial review proceedings of a decision of the Refugee Appeals Tribunal that the applicant

should not be declared a refugee. These proceedings were issued approximately one month outside the statutory time limit. I am

satisfied that the applicant formed the intention to appeal within the statutory period and has provided a reasonable explanation for

the delay. In the circumstances I consider that there is good and sufficient reason for extending time in accordance with s. 5 of the

Illegal Immigrants (Trafficking) Act 2000.

2. The applicant, a national of Somalia, was born in Mogadishu in 1968. She claims that if returned to Somalia she would be at risk of

death, rape and other persecution by armed groups, on account of her being a member of a minority clan and because of her past

activities in campaigning against the practice of female genital mutilation (FGM). According to her narrative, she is a member of the

minority Reer Hamar clan. She and her family were subjected to various verbal and physical attacks by local fundamentalist groups,

mainly of the Habir Gadir clan (which in turn forms part of the larger Hawiye clan). In July 2002 one of the members of the applicant's

anti-FGM group, a fellow Reer Hamar, was killed. The applicant herself was threatened with rape and murder. She fled Somalia in

January 2003 and travelled to Ireland via Kenya.

3. The applicant arrived in the State on the 28th February, 2003 and applied for asylum. The Refugee Applications Commissioner

issued a negative recommendation in respect of the applicant. She appealed to the Refugee Appeals Tribunal and an oral hearing took

place before the Tribunal on the 22nd June, 2006. The Tribunal did not make a decision for some 21 months after the date of hearing

and only after mandamus proceedings had been brought by the applicant. The applicant has not pleaded delay as a ground of relief

but time is nevertheless of importance in the case. The Tribunal Member explained in her decision that she deliberately held off making

the decision because of the changing, volatile conditions in Somalia. She would have waited longer if she could but the applicant

brought mandamus proceedings and her "hand was forced". She therefore reluctantly came to a conclusion on the basis of the

available information, even though that was insufficient and unsatisfactory.

The Tribunal Member referred at several places to the delay in making her decision:-

"The sole issue in my view is whether this applicant is at risk in Somalia by virtue of her ethnic grouping, being a member

of the Reer Hamar ethnic group. The country of origin information available prior to the take over by the Islamic Courts

was to the effect that the Reer Hamar did not benefit from any majority clan protection. Since then the situation has

changed dramatically, for this reason the Tribunal Member held off making a decision in circumstances where the

information available showed that circumstances in the applicant's country were changing day by day. However given

that the applicant instituted judicial review proceedings, the Tribunal Member was forced to come to a decision regardless

of the concern that arises in relation to the tenuous peace. "[italics added]

4. The Tribunal Member said that the country of origin information disclosed that the situation in Somalia was "one of chaos" and she

concluded her review of the conditions in reference to the applicant's claim as follows: "The situation may indeed change within the

near future and given the volatility of the situation I had felt it unfair to make a decision in this applicant's case in circumstances

where the COI did not support a claim of persecution based upon membership of her clan given the intervening occurrences, however

as my hand has effectively been forced, and given that I must make the decision based upon the COI available at the time of making

the decision I have no alternative but to conclude that there is no objective basis to support a conclusion that the applicant would

face persecution for a Convention reason if returned to her country of origin."

The Tribunal Member was sympathetic to the applicant, describing her as a "well educated, intelligent young woman" who struck her

as a "credible witness".

She also said

"Of course there are good reasons why no one should be returned to Somalia given the current precarious situation that

appears by all accounts to affect everyone, however that is not my decision, I conclude that the grounds for showing

that the applicant is a refugee are not shown here."

This is a reference to subsidiary protection available under S.I. 518/2006 for persons who are at real risk of serious harm and the

prohibition on nonrefoulement in s.5 of the Refugee Act, 1999.

5. The Tribunal Member did not want to make a decision. She felt coerced into doing so at a time when it was unfair to the applicant.

The situation was changing day by day. What does that say about the decision? This it is a significant feature in the case and it

cannot be ignored. I do not think that either the applicant or the Tribunal Member is to be blamed. The applicant did not know the

reason for the delay and she and her advisers were impatient for a decision. The fact that they sought an order of mandamus was

understandable in the circumstances. In fact, the delay was explained in the Tribunal's decision. It does not matter for the present

consideration whether the Tribunal Member behaved reasonably or the applicant was justified in the course she pursued. The point is

that the decision maker felt compelled to make a decision at a time when she thought it was unfair to the applicant and when she

herself did not want to do so. The decision-maker frankly expressed herself as she did saying that he was not in a position where she

felt able to reach a proper decision on the important questions before her. This is the context in which the application for leave has

to be assessed.

6. A decision has to be made on the evidence and in a country situation which is fluid and dangerous, that is the context of the

consideration of the application. If it is impossible to establish what conditions are in the country of origin, that is the situation to be

considered. The reasons why it is impossible will influence the decision. Decisions have to be made on the evidence that is available,

even if one might hope that something better or more solid would turn up in future.

7. The Tribunal Member summarised country of origin information about events in Somalia that had transpired over the previous two

years. She referred to a November 2006 report of the UN Monitoring Group in Somalia. She quoted a May 2007 United Kingdom Home

Office report containing an interview of the 27th April 2007 with Mr. Ahmed Nur Khaire, a Swedish researcher of Somali descent. The

Tribunal said that he "amongst all those interviewed would arguably be the most experienced". The Tribunal also made passing

references to two further UK Home Office publications, both from November 2007, namely an Operational Guidance Note on Somalia

and a Country Report on Somalia. Having considered the country of origin information, the Tribunal Member concludes (at pp. 23-24)

as follows:-

"As is apparent from the above, the situation is one of chaos, however there is no evidence to suggest that members of

the applicant's clan are being targeted, indeed the situation now is that the predominantly Darod TFG [transitional federal

government] members are exacting revenge on the Hawiye and that clans which were normally hostile to each other have

joined forces against the common enemy - the Ethiopians and Darods.

The applicant herself effectively acknowledged that any problems she did suffer were from Hawiye, the members of her

own clan did not target her on account of her campaigning, thus suggesting strongly that it was a clan based harassment

she suffered as opposed to one related to political opinion, imputed or otherwise. Given that the Hawiye are now in fact

the target themselves given the political and powers shift the applicant's claim to fear persecution from Hawiye appears

not to have any objective basis given the COI that I have referred to and reviewed. As for the claim that she fears

persecution on account of her gender I know of no precedent that has concluded that gender per se is a convention

ground."

8. The applicant's case is first, that a country of origin report relied on by the Tribunal Member was not put to the applicant;

secondly, that the Tribunal Member failed to assess properly the situation prevailing in Somalia and whether the applicant had a well-

founded fear of persecution; and thirdly, that the Tribunal Member erred in how she dealt with the issue of the applicant's gender in

relation to her asylum claim.

9. Turning to the first of these points, it is submitted that the Tribunal Member should have notified the applicant that she intended

to rely on the report containing the interview with Mr. Khaire. The Tribunal Member did request submissions from the applicant after

the date of her oral hearing, but only in relation to a Home Office country report of April 2007. On the 5th February, 2008, the

applicant's solicitor replied with some general submissions, though he based these on the more recent Home Office Country Report on

Somalia and the Operational Guidance Note, both dated November 2007. It would seem that at no stage was the applicant or her

legal advisers put on notice of the report dated May 2007 which contained the interview with Mr. Khaire. The applicant argues that in

relying on this information without affording her an opportunity to comment on it, the Tribunal acted in breach of fair procedures. It is

further submitted that this omission on the part of the Tribunal amounted to a breach of its duty under s. 16(8) of the Refugee Act

1996, which provides:-

"The Tribunal shall furnish the applicant concerned and his or her solicitor ... an indication in writing of the nature and

source of any other information relating to the appeal which has come to the notice of the Tribunal in the course of an

appeal under this section."

10. In her affidavit, the applicant expresses a number of reservations she has with the Mr. Khaire interview. She observes that Mr.

Khaire is a member of the same majority clan that dominated the applicant's area and persecuted her in Somalia. She also argues that

Mr. Khaire would not have a true or proper perspective of the unfortunate consequences of the clan based system for persons who

are members of minority clans. She takes particular issue with a remark by Mr. Khaire that "the local administration and justice

administered by local clans was reasonably fair." The applicant says that this view is a biased one and cannot be said to be true for

members of minority groups, who are given no rights in Somalia.

11. By way of reply, the respondents assert that the there was nothing material in the record of the interview with Mr. Khaire which

meant that its inclusion in the decision constituted a breach of s. 16(8). In this regard, the respondents make reference to the

decision of Cooke J. in N v. Refugee Appeals Tribunal (Unreported, High Court, 1st July, 2009) [2009] I.E.H.C. 301, where it was held

that although there may have been a technical breach of s. 16(8) it was not material and the decision could therefore be upheld.

12. The second argument made on behalf of the applicant is that the Tribunal Member failed to assess properly the country of origin

information before her and the nature of the risks facing the applicant were she to be returned to Somalia. In particular, it is

submitted that the Tribunal Member failed to have any adequate regard to the two Home Office publications from November 2007.

13. The Tribunal Member's conclusion was that the previously threatening clan was now itself the target of attack from other clans

and therefore the applicant was not at risk. The applicant asserts that the Tribunal Member erred in arriving at this conclusion. She

focused exclusively on the potential threat from the Hawiye, thereby missing the point that the applicant is at risk of persecution from

all majority clan militias, not just the particular clan that had been in the ascendant at the time of the applicant's departure from

Somalia. Moreover, it is submitted that the finding that "there is no evidence to suggest that members of the applicant's clan are

being targeted" flies in the face of the November 2007 documents which were before the Tribunal Member. Mr. Diarmuid Rossa Phelan,

SC for the applicant, drew the Court's attention in particular to para. 20.4 of the Home Office country report, which quoted a 2006

US State Department report as follows:

"Minority groups and low-caste clans included the ... Rer Hamar ... Minority groups had no armed militias and continued to

be disproportionately subject to killings, torture, rapes, kidnappings for ransom, and looting of land and property with

impunity by faction militias and majority clan members. Many minority communities continued to live in deep poverty and

to suffer from numerous forms of discrimination and exclusion."

14. Mr. Phelan also referred to para. 3.5.2 of the Home Office guidance note, which provides:-

"Somalis with no clan affiliation are the most vulnerable to serious human rights violations, including predatory acts by

criminal and militias, as well as economic, political, cultural and social discrimination. These groups include the Benadiri

(Rer Hamar) and Bravanese."

At para. 3.5.5 of the same document it is stated:-

"While for the vast majority of Somalis clan status may not in itself risk mistreatment, the [Reer Hamar] or Bravanese are

not only outside the clan system and cannot rely on a patron clan's support but also continue to be isolated and given

their `lowest of the low' status are vulnerable to discrimination and exclusion wherever they reside."

15. The facts of A.M S.J. (Unreported, High Court, Birmingham J., 18th May, 2010) [2010] I.E.H.C. 188 are very similar to the present

case, the applicant also being from Afghanistan and a member of a minority sub-clan of the Benadiri group. Moreover, the decision

under challenge in A.M.S.J. was made by the same Tribunal Member and less than two months after she decided the applicant's case.

Birmingham J. quashed the decision on the ground that the Tribunal Member did not appear to have applied the "differential impact

test" described in Adan v. Secretary of State for the Home Department [1998] 2 W.L.R. 702. Birmingham J. explained the test as

follows:-

"The case of Adan is authority for the proposition that killing, torture and ill treatment incidental to a civil war and more

specifically, to a clan and sub-clan based civil war, will not give rise to a well-founded fear of being persecuted and so, to

an entitlement to refugee status when the asylum seeker was at no greater risk of such ill treatment by reason of his clan

or sub-clan membership than others at risk in the war situation. It must be appreciated that the Adan case does not

require decision makers dealing with applicants claiming refugee protection on the basis of exposure to an armed conflict

to reject such a claim out of hand, nor indeed does it permit decision makers to reject their claim in such a manner. The

Adan case jurisprudence requires that consideration be given to the distinction between the ordinary risks of clan warfare

on the one hand, unattractive as that concept is, and cases involving a ‘differential impact’."

Birmingham J. summed up as follows:

“In conclusion, I am left in a position of uncertainty as to whether the tribunal member applied her mind to the differential

impact test, and indeed the exercise I have engaged in leads me to the view that it is on balance more probable than not,

that she did not advert to the test, and that the reference by her to the absence of disproportionate effect and to

everyone being caught up in the cross fire, were merely observations made in the context of saying that there was no

targeting taking place. If that is so, then there was no adjudication on whether the applicant’s particular circumstances

were such that he was entitled to refugee status, even in the absence of being targeted. Accordingly the decision cannot

stand.”

16. Mr. Anthony Moore, Barrister for the respondents, argues that the Tribunal Member was entitled to make the finding that she did.

He contends that the applicant’s claim centred on her stated fear of the Hawiye clan and her past persecution by members of that

clan, much of which stemmed from her political activities in campaigning against the practice of female genital mutilation. If she was

of the view that she would be subject to persecution from any other quarter, the burden was on her to make such a case pursuant to

s. 11A(3) of the Act of 1996. Mr. Moore argues that it is not appropriate for the applicant to treat this Court as a court of appeal as

opposed to a court of review. If she considers herself to fear persecution other than on the basis originally alleged by her, Mr. Moore

submits that the appropriate course of action is for her to make an application to the Minister to re-enter the asylum system pursuant

to s. 17(7) of the Act of 1996.

17. Mr. Phelan in reply referred to the applicant's questionnaire, where she states:

"There is no authority in Somalia which could protect me nor do I belong to a major clan that can protect its members. I

belong to a minority clan."

Elsewhere in the questionnaire, she says that she fears persecution from "armed fundamentalist groups", and that members of her

clan "have been subject to all kinds of harassment by armed groups / clans". Further on, she states:

"Somalia is a country dictated by long standing traditional cultures, where there is no authority protecting civilians from

the acts of the armed gangs. Militant groups from the major tribes harass, kill, rob, rape, kidnap members from minority

clans."

At the end of the questionnaire the applicant concludes: "My clan Reer Hamar is minority in Somalia. I have no protection in Somalia."

18. The third point made by the applicant concerns the matter of her gender. The relevant portion of the Tribunal Member's decision

is as follows: "As for the claim that [the applicant] fears persecution on account of her gender I know of no precedent that has

concluded that gender per se is a convention ground." The applicant submits that this analysis is flawed because it fails to recognise

that the applicant as a female minority clan member would constitute a particular social group. It is further argued that the Tribunal

Member failed to take into account the fact that the applicant's gender could constitute a particular characteristic which ought to

have been taken into consideration when analysing whether the applicant might face discrimination or ill treatment amounting to

persecution if returned to Somalia.

19. Mr Moore for the respondents submits that the applicant once again is relying on factors that were not pursued in her appeal

before the Tribunal. It is asserted that the onus is on the applicant to show that women in Somalia are recognised as a particular

social group for the purposes of s. 2 of the Act of 1996, and that the applicant has failed to discharge this onus in the present case.

20. In her assessment of the country of origin information, one of the concluding remarks is that "clans which were normally hostile to

each other have joined forces against the common enemy - the Ethiopians and Darods". This part of the decision is taken verbatim

from the record of the interview with Mr. Khaire. I think it is arguable that the Tribunal Member was wrong to rely on this material

without affording the applicant an opportunity to be heard in relation to it. In this regard, I adopt the precept of Clarke J. in V.I. v.

Minister for Justice (Unreported, High Court, 10th May, 2005) [2005] I.E.H.C. 150:-

"[A]n inquisitorial body is under an obligation to bring to the attention of any person whose rights may be affected by a

decision of such a body any matter of substance or importance which that inquisitorial body may regard as having the

potential to affect its judgment."

21. N v. Refugee Appeals Tribunal (Unreported, High Court, Cooke J., 1st July, 2009) [2009] I.E.H.C. 301, relied on by the

respondents, can be distinguished on its facts. In that case, the Tribunal Member had appeared to rely on information garnered from a

lecture delivered by a UNHCR official. Although the Tribunal Member did not furnish to the applicant any record of the lecture, at

hearing he did refer to the lecture, summarised its conclusions and provided the applicant with an opportunity to contest it. In the

words of Cooke J., "the information was openly disclosed and put to the applicant at the hearing". The stark contrast with the

present case, where the applicant was not in any way notified of the Mr. Khaire interview, affords inferential support to the applicant.

22. In the circumstances, I am satisfied that the applicant has made out substantial grounds for contending that the Tribunal acted in

breach of fair procedures and contrary to s. 16(8) of the Act of 1996 by not putting the applicant on notice of this material.

23. The second issue to be considered is whether the Tribunal Member properly analysed the situation prevailing in Somalia and

whether the applicant had a well-founded fear of persecution, particularly having regard to the two Home Office publications from

November 2007. While the Tribunal Member does make passing reference to the November 2007 documents in her decision, it would

seem that she did so-more by way of summarising the applicant's submissions rather than engaging in any way with the material

herself. This lends support to the contention that the November 2007 documents were not properly considered.

24. The respondents' argument as to the focus of the applicant's claim is not unreasonable. In the applicant's questionnaire, s. 11

interview and other documents relating to her asylum history, she repeatedly refers to her mistreatment at the hands of the Hawiye

clan, in particular the Habir Gadir. Mr. Phelan's submission is that she was making the case as to who was persecuting her during her

time in Somalia. She placed emphasis on the Hawiye clan because they were the majority clan that happened to be in a position of

de facto authority in the area where she lived at the time. It does not follow, he argues, that the Hawiye were the only clan

persecuting minority clans in Somalia. If the Tribunal Member had taken proper account of the applicant's remarks - particularly those

made in her questionnaire - concerning the general threats faced by the Reer Hamar as a minority clan, and if she had properly

considered the country of origin information, she would have appreciated that the Hawiye did not have a monopoly on the persecution

of minority clans.

25. The most up-to-date country information, in particular the Home Office guidance note of November 2007, indicated that the risk

of persecution faced by the Reer Hamar was of a general nature and was not limited to the threat posed by any one majority clan.

The Tribunal Member failed to consider this, as a consequence of which the forward looking test for assessing whether the applicant

had a well-founded fear of persecution was not properly applied. Moreover, the Tribunal Member's conclusion that the "current

precarious situation ... appears by all accounts to affect everyone" without any consideration of the general, heightened threats

faced by minority clan members lends support to the applicant's contention that the Tribunal Member did not lend her mind to the

"differential impact" test.

26. In the circumstances, I am satisfied that there are substantial grounds for arguing that the Tribunal Member erred in fact and

acted unreasonably and irrationally in her analysis of the country of origin information and the manner in which she assessed whether

the applicant had a well-founded fear of persecution.

27. I consider that the Tribunal Member's own candid reservations about making her decision are substantial grounds for granting

leave. This matter forms the background to the analysis of country of origin information in the decision and it seems to me that it

confirms the applicant's entitlement to leave on this ground also.

28. On the final point, in my opinion, the respondents' submission is correct. It is asserted that the onus is on the applicant to show

that women in Somalia are recognised as a particular social group for the purposes of s. 2 of the Act of 1996 and that the applicant

has failed to discharge this onus. The applicant has failed to establish substantial grounds on this point in the present case.

29. There will be an order extending time pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000 and an order granting leave

to seek the reliefs sought at paragraphs 1 and 2 of the notice of motion on the grounds set out at paragraphs 8, 9, 12, 15, 16 and 19

of the statement of grounds. I propose to add the following additional ground:

The Tribunal made its decision when it believed it had insufficient information to do so properly and fairly.

30. Counsel for the applicant has also requested leave to seek an order that the applicant's appeal be remitted to the same Tribunal

Member for rehearing. I am not prepared to allow this, as I do not think that it is for this Court to micromanage the business of the

Tribunal. It would be normal for a different member to decide the appeal but under the terms of the Act of 1996 that is the

prerogative of the Chairperson. On a rehearing all issues are open.