Friday, May 18, 2012

Minister’s Decision Quashed on Basis of Failure to Consider New Information in Subsidiary Protection Application

Case Study: Zhara Murkhtar v The Minster for Justice and Equality [2012] IEHC 123

The applicant claims that the respondent erred in failing to give any weight to the corroborative evidence she submitted from the Red Cross in relation to her subsidiary protection application and in rejecting the probative force of such evidence without giving any reasons for doing so.

The respondent submitted that the Minister dealt with the decision by indicating that the Red Cross documents were not accepted as documentary evidence of the applicant’s identity or nationality due to reasons of credibility. In essence the respondent was saying that the overwhelming findings in relation to credibility were not overturned by these documents.

The applicant arrived in the State in October 2008 claiming to be a Somali national. Her application for refugee status failed as she was said to have given false information in her application by failing to disclose that she had been to the UK.  In December 2010 the applicant made an application for subsidiary protection. The Minister notified her that her application would be processed on the basis that she was a Kenyan national as she had submitted to the UK authorities. The Red Cross had earlier notified the applicant that they had traced her mother and husband, but she did not submit these documents to the RAT or ORAC. The applicant’s solicitors later included these documents submitting that they proved that she was Somali rather than Kenyan. The Irish Red Cross tracing file indicated that the applicant’s family members had been located using the applicant’s correct details rather than those on the Kenyan passport used to obtain the UK visa.

The Minister analysed country of origin info in relation to Somalia and concluded that if returned there, the applicant would run a real risk of indiscriminate violence if she were of Somali ethnicity. The decision maker stated that the Red Cross documents tracing her family members would not be accepted as documentary evidence of the applicant’s identity or nationality. There is no stated or detailed reason as to why the documents were not accepted.

The High Court found the adverse credibility findings of the RAT or ORAC could not qualify the validity of the Red Cross documents as being documentary evidence. They gave evidence suggestive of Somali nationality and the credibility decisions of the RAT and ORAC were arrived at without the benefit of these documents. In any event the issue before the Minster was not whether the applicant was credible in her story but rather whether she was from Somalia or Kenya to be considered entitled to subsidiary protection. An applicant may be entirely un-credible in relation to their evidence but still qualify for subsidiary protection because of the nature of the country they are likely to be forced to return to.

The High Court was of the view that the decision maker had a duty to consider the new information received in relation to the applicant’s identity, especially as the only issue in the Ministers decision was whether the applicant was from Kenya or Somalia. The failure of the Minster to consider the new corroboratory information, whether or not he regards it as being documentary evidence of the applicants identity or nationality, is a breach of duty as is the failure of the Minister to state any reason for discounting or rejecting as unauthentic the value of those documents.The applicant was entitled to an order of certiorari taking up and quashing the decision of the respondent that the application is not eligible for subsidiary protection.      

Brophy Solicitors




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