The High Court has quashed a Refugee Appeals Tribunal decision refusing refugee status to a Nigerian-born child and ordered a fresh hearing before a different Tribunal member.
In a judgment delivered on 19 June 2015, Ms Justice Faherty also granted an extension of time for the judicial review. The case was a “telescoped hearing”: the court considered the challenge and made its decision at that hearing. It did not decide whether the child qualified for refugee status.
The child, identified as C. F. A., was born in Ireland to Nigerian parents. Her mother applied for asylum on her behalf when the child was about 16 months old. The Refugee Applications Commissioner recommended that she not be declared a refugee, including on the basis that the delay in applying undermined the claimed fear. The appeal to the Tribunal proceeded on the papers, without an oral hearing, and the Tribunal affirmed the recommendation.
The judge held that the Tribunal had wrongly applied a statutory credibility provision concerning an applicant’s failure to claim asylum after arriving at the State’s frontiers. The child had been born in Ireland and could not have made an asylum claim at the frontier. The judge said this did not prevent the Tribunal from considering delay generally, but that the specific statutory finding did not fit the circumstances.
The court also found that the Tribunal had not fairly weighed the mother’s account of having undergone circumcision, the child’s age and gender, and country information before it about female genital mutilation (FGM) in Nigeria. The mother had referred to a fear of FGM in the questionnaire and again at interview. The judge said the Tribunal’s reliance on its absence from the record of an earlier interview was unfair and irrational, particularly because the questionnaire clearly stated the claimed fear.
The Tribunal’s assessment of relocation to Lagos was also flawed. Having treated Lagos as a place where the child could safely and reasonably live, the Tribunal needed to assess the option in accordance with the relevant legal principles. The judge found no adequate analysis of whether local laws could protect the child from FGM, or of the mother’s stated lack of family support and financial concerns in light of the country information.
The court rejected some arguments, including a challenge to the Tribunal’s assessment of the claim that the child would face discrimination as a child born outside marriage. It also held that a later country report and material from the mother’s separate proceedings could not be considered in reviewing the Tribunal decision because they had not been before the decision-maker.
The court granted leave, issued an order of certiorari quashing the Tribunal’s decision, and remitted the matter for a de novo hearing before a different Tribunal member. The ruling did not determine the merits of the refugee claim.