B v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Ms Justice M. Clark,
• Judgment Date: 26 June 2012
• Neutral Citation: [2012] IEHC 487
• Court: High Court
• Date: 26 June 2012

[2012] IEHC 487

THE HIGH COURT

Record No. 788 J.R./2009

B (C) [DR Congo] v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

Between:/

C. B. (D.R. CONGO)

APPLICANT

-AND-

THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 13(6)(D)

C (QF) & ORS v REFUGEE APPEALS TRIBUNAL UNREP COOKE 12.1.2012 2012 IEHC 4

A (MAM) v REFUGEE APPEALS TRIBUNAL 2011 2 IR 729

R v IMMIGRATION APPEALS TRIBUNAL & ANOR EX-PARTE SHAH 1999 2 AC 629

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL UNREP PEART 9.7.2004 2005/15/3102 2004 IEHC 436

Judicial Review - Asylum - Refusal of application - Credibility of applicant - Error in reasoning - Forward-looking assessment of risk - Member of a particular social group - Documentary evidence

Facts: The applicant was originally from the Democratic Republic of Congo. She applied for asylum upon entering the country in September 2007 but her application before the Refugee Applications Commissioner and the Refugee Appeals Tribunal was rejected on the issue of credibility. It was found that the applicant had failed to disclose the fact she had applied for asylum in Belgium earlier in the year and she had also spent time in Italy. Leave for judicial review was subsequently sought challenging the validity of that decision on the basis that a forward-looking assessment of risk should have been carried out along with proper consideration of documentary evidence. She claimed she was part of a particular social group as a woman from the eastern region of the Democratic Republic of Congo.

In the applicant's application for asylum, she outlined how she had been the victim of false arrest, detention, beatings and rape at the hands of Congo state agents due to her involvement in a group that sought to educate people about these activities. She fled to Ireland and gave birth to a child there who was assumed to be an Irish citizen. She initially denied having applied for asylum in any other country but changed her account when information to the contrary was presented. She also submitted country of origin information which showed the extent of the conflict of her area in the Democratic Republic of Congo as well as the volume of rapes that were occurring. The application was subsequently rejected by the respondents. They rejected the need to use a forward-looking assessment as there was indiscriminate violence in the region against both men and women in different forms and so they didn't consider the applicant to be part of a particular social group. It was also held there wasn't a reasonable likelihood she would be persecuted if deported. The respondents also contended a full consideration of documentary evidence had been made.

Held by Clark J that the respondents had made a satisfactory consideration of the documents that had been submitted. However, it was further held applicant was indeed a member of a particular social group as stated and in fear of persecution for that reason with the country of origin information alluding strongly to this view. It was clear that the persecution experienced by women was very different to that of men in the region as further suffering was known to be inflicted on women when they were rejected by their families and community if it was found out they had been the victim of rape.

As such, the arguments advanced by the applicant for a forward-looking test should have been given proper consideration. Leave for judicial was granted on that basis.

Application for leave granted.

1 When she first applied for asylum in Ireland in 2003, the applicant did not disclose that she had applied for asylum in Belgium earlier that year and that she had spent time in Italy before going to Belgium from her native Democratic Republic of the Congo (DRC). This material non-disclosure was the primary reason why the Refugee Applications Commissioner and, in turn, the Refugee Appeals Tribunal (RAT) made negative credibility findings in relation to her narrative. She now seeks leave to apply for an order of certiorari quashing the RAT decision of dated 17 ^th June 2009 on the basis that the Tribunal Member failed to apply a forward-looking assessment of risk and gave insufficient consideration to documentary evidence furnished. She also seeks declaratory and injunctive reliefs. The leave application was heard on 17 ^th April 2012. Mr. Michael Lynn BL appeared for the applicant and Ms. Emily Farrell BL appeared for the respondents. The applicant requires a short extension of time which I am prepared to grant in light of the explanation given for the delay involved.

Background to the negative credibility findings

2 When she applied for asylum in December 2003 the applicant said that she came from Katana village in Bukavu, which is in the South Kivu province of eastern DR Congo close to the Rwanda / Burundi border. She said that in February 2003 and again in October 2003 she had suffered arrest, detention, beating and rape because of her activities in organising a named small, informal group operating in her village whose purpose was to educate people about rape and to warn against the activities of the RDC militia allied with Rwandan troops who were in occupation in eastern DR Congo. She said that after she escaped from detention in October 2003 she fled to Rwanda with the help of a sympathetic Commander who was friendly with her uncle. That man and her uncle then arranged and paid for her travel to Ireland. Some six months after her arrival, she gave birth to a daughter. It is assumed that the child is an Irish citizen. She said she left her ten year old daughter and her niece and nephew for whom she was responsible in the DR Congo and the last she heard of them was that they were with a priest.

3 The applicant expanded upon her account at her s. 11 interview and she again confirmed she had never claimed asylum before and had never been in the UK, France, Germany, Italy or Belgium. It was then put to her that the ORAC had information that she lived in Belgium and that she applied for asylum in Belgium on the 29 ^th October 2002 having travelled there from Italy which she had entered on a visa. In Belgium she gave a very similar name spelled differently and said she was from the DRC but she gave a different year of birth. Pursuant to a "take back" request, Italy accepted responsibility for determining her asylum claim and on 2 ^nd April 2003 she was directed to leave Belgium and apply for asylum in Italy but there is no record that she left Belgium or returned to Italy. When confronted with this information the applicant admitted that she had lived in Belgium from October 2002 to May 2003. She said she had transited through Italy and didn't know how long she was there, maybe 2 ½ weeks. She said that she returned to the DRC in May 2003 but fled again in November 2003. When it was put to her that her claim that she had been arrested and raped in her village in March 2003 could not have happened as she had been in Belgium at the time she replied, "All those activities happened but they happened in 2002." She clarified that she had been arrested and imprisoned in 2002 and not in 2003 as previously stated and that she left the DRC in October 2003.

4 The s. 13 report which issued in March 2005 rejected her credibility. A negative recommendation issued and she was confined to an appeal on the papers in accordance with s. 13(6) (d) of the Refugee Act 1996 which meant that no oral hearing would take place.

The Appeal

5 The lengthy period which has elapsed between the ORAC negative recommendation and the RAT decision dated June 2009 is in part attributable to two previous challenges to the Tribunal decisions in April 2005 and January 2008. By the time the Tribunal came to consider the applicant's appeal afresh for the third time, the Tribunal Member had before her many documents which had not been before the ORAC at first instance together with a large number of country of origin information (COI) reports and lengthy written submissions. The new documents included medical reports, letters and personal documents, and previous RAT decisions relating to similarly situated applicants. The COI reports furnished concentrated heavily on the high incidence of rape in the conflict in the eastern part of the DRC. Further details were provided in relation to her asserted past persecution and it was claimed that when she returned to the DRC in May 2003 she encountered problems with soldiers who came to the village looking for her every day and eventually found her in October 2003 and that she...