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

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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.

Case Law Cited: 

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