High Court: Refusal of international protection quashed after Tribunal fails to provide reasons why FGM claims were not credible



Killian Flood BL
Killian Flood BL

The High Court has quashed the refusal of an international protection application brought by a woman who claimed that she would be subjected to female genital mutilation if returned to Sierra Leone. The court determined that the International Protections Appeal Tribunal did not provide adequate reasons when it determined that the applicant was not at risk of FGM and, further, did not have adequate regard to the Country of Origin Information.

The court held that the COI established that FGM was widely conducted in Sierra Leone and that it was a “very real and concerning situation” for the applicant that she would be subjected to it. As such, it was necessary for the IPAT to give a full assessment of the risks to the applicant.

Background

The applicants in the case were a Sierra Leone woman and her son. The woman, RS, was 28 years old, was married and had two children. In December 2018, RS made an application for international protection for her and her son, on the basis that she would be subjected to FGM if returned to Sierra Leone.

The applicant claimed that her mother held a leadership role in the Bondo Womens’ Society, where FGM was promoted and widely practised. The applicant claimed that her sister had died as a result of FGM when she was young and, as such, her mother never performed the act on RS.

The applicant’s mother died in 2016. In the grounding affidavit, the applicant claimed that it was tradition for a daughter to assume her mother’s place in the society, which would require her to undergo FGM.

The application for international protection recorded a slightly different claim, where it was said that her mother told the society women that RS should be circumcised to take her place in the Bondo society.

RS outlined her “vehement opposition” to undergoing FGM. She was held against her will by the Bondo women with a view to carrying out the act but she escaped with the assistance of her husband. She claimed that she feared for her life if she was returned to Sierra Leone due to her refusal to undergo FGM and take her mother’s place in the society.

Considering her application, both the International Protection Officer and the IPAT on appeal determined that the applicant should not be granted protection. The IPAT ruled that it was not credible for the applicant’s mother to have allowed her child to not undergo FGM if she was a leader in the Bondo Society. Further, it was not accepted that the applicant, as a Christian woman opposed to FGM would be selected as a leader for the Bondo group. It was also held that her overall story was “far-fetched”. As such, the IPAT concluded that there could be no motivation to harm the applicant.

Under the heading “Persecution,” the IPAT said that, having regard to the COI, there was no well-founded fear of persecution. In relation to the specific fear of FGM, it was said that the applicant would not be targeted for FGM because she was a married woman, aged 26 at the time, with two children.

High Court

The applicant brought judicial review proceedings seeking to quash the IPAT decision. It was claimed that the findings of the IPAT regarding the particularised allegations were rejected without cogent reasoning and that the determination of her low risk of FGM was irrational.

Giving judgment in the case, Ms Justice Tara Burns held that the IPAT had failed to give proper reasons for why the applicant was not at risk of FGM. However, the court said that the conclusions relating to the particularised claims were not irrational and were open to the IPAT.

The court said there was no error by the IPAT when it stated that the applicant’s mother nominated her for the leadership role and wanted the other members to perform the FGM. While it was correct from the COI that Bondo Society leadership roles were hereditary, the IPAT was entitled to come to the views that it did arising from the information provided by the applicant in her application questionnaires.

However, the court held that no specific analysis was carried out by the IPAT regarding the general risk to the applicant of FGM. The COI outlined that FGM was an “extremely widespread practice” in Sierra Leone, with approximately 88 percent of women between 15 and 49 having undergone the procedure. While girls under 18 were at the highest risk, the COI recorded that “women of all ages continued to be at risk,” and that “it was not a question of women giving consent to be cut.”

With such information available to the IPAT, it was incumbent on the Tribunal to properly assess whether the risk of serious harm arose for the applicant. This assessment did not occur in the IPAT’s decision, and in fact no acknowledgment was made of this information. Due to the lack of reasons, it was not possible to establish if the IPAT had come to a rational decision.

Conclusion

The court granted an order quashing the decision due to a lack of adequate reasoning and remitted the matter back to the IPAT for fresh consideration. The applicant was awarded her costs.

© Irish Legal News Ltd 2021



Other judgments by Ms Justice Tara Burns