Brennan v Mullan

• Jurisdiction: Ireland
• Judge: Mr. Justice Cross,MS JUSTICE M. H. CLARK
• Judgment Date: 18 February 2014
• Neutral Citation: [2014] IEHC 22,[2014] IEHC 61
• Court: High Court
• Docket Number: [2010 No. 4094 P]
• Date: 18 February 2014

[2014] IEHC 22

THE HIGH COURT

Record No. 69 J.R./2009

B (M) [DRC] v Refugee Appeals Tribunal (Brennan) & Ors

JUDICIAL REVIEW

Between:

M.B. (DRC)

APPLICANT

-AND-

OLIVE BRENNAN, SITTING AS THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

REFUGEE ACT 1996 S8

A (PP) v REFUGEE APPEALS TRIBUNAL (EAMES) & ORS 2007 4 IR 94 2007 1 ILRM 288 2006/3/519 2006 IESC 53

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PARA 43

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

Asylum & Immigration law - Judicial Review - Democratic Republic of Congo - political party - natural and constitutional justice - Whether fundamental errors in decision-making had been identified

Facts: The applicant was a woman from the Democratic Republic of Congo who sought to claim refugee status. She asserted fear arising from the involvement of her father with a political party. Leave was granted to the applicant to challenge credibility findings made by a Tribunal member who found her story to be not credible and alleged that the Tribunal had made two fundamental errors. She alleged that inter alia that the respondent had failed to comply with natural and constitutional justice with regard to the father”s membership of the political party. She impugned the failure to provide reasons and the lack of clarity in the Tribunal Member”s decision.

Held by Clark J. that the applicant sought to deconstruct a decision so as to emphasis a few minor points and phrases so as to provide evidence of a decision lacking reasons. No fundamental errors were identified in the decision and the challenge failed. The Tribunal Member did address the applicant”s core claim. It could not be the case that specialized decision-makers could never rely upon demeanor.

1 The assessment of credibility in asylum cases is a key issue in a very large number of applications for judicial review, notwithstanding the fact that since the 10 ^th October, 2006, the procedures for determining the facts and circumstances of protection claims are determined and set out by the Qualification Directive, which was transposed into domestic law by S.I. 518 of 2006, the ECs (Eligibility for Protection) Regulations 2006. The process essentially involves eliciting the applicant's claim by statements and answers and assessing the information obtained by reference to relevant, current country of origin information (COI).

2 In this case, leave was granted to the applicant to challenge credibility findings made by the Tribunal Member who found that the applicant's story was "simply not credible, coherent or believable". She argues, in brief, that the Tribunal failed to assess her core claim, made two fundamental errors of fact, and engaged in impermissible speculation and conjecture when assessing her credibility.

3 Before considering those grounds the context of the claim must be examined. The applicant is a woman from the Democratic Republic of the Congo (DRC). She appears to have been detained at Dublin Airport on the 10 ^th March, 2006, as she had no identity or travel documents. Three days later she applied for asylum and at her preliminary Section 8 interview she claimed her fears were based on the war between Burundi, Rwanda and the DRC.

4 Her written responses to the Refugee Applications Commissioner's Questionnaire described her reasons for leaving the DRC in more detail. Generally there was insecurity in her country arising from war, hunger and violence. The specifics of her claim centred on two incidents in very disparate and distant parts of the DRC - the first was in her aunt's village in Kivu Province in 2000 when she saw her pregnant aunt and uncle brutally killed by mercenaries or rebels and she herself was then raped by five men from Rwanda and Burundi. She became pregnant and gave birth to a son in the following year. The second incident occurred in Kinshasa in 2006 when she was visiting her father who had joined the Union for Democracy and Social Progress (UDPS) political party a year earlier. He was abducted in her presence because Theophile Mbemba, a politician with the ruling party, sought his elimination. Because she recognised one of the soldiers who had betrayed her father, he intended to have her killed too. She was warned of his intentions by a military agent who had been at school with her brother. She sought the assistance of a priest from her village who was in Kinshasa at the time and he arranged her to travel to Ireland.

5 She attended two interviews with the Commissioner where a more detailed account of the two separate and unconnected incidents was provided. The second interview focused on her claim of her father's UDPS membership and the details of his kidnapping. She said he was friendly with the head of the UDPS before he joined the party as they came from the same province. She had no contact with her mother and son since she left Lubumbashi for Kinshasa but had been in touch with her cousin who told her that her father's body had been found by a river in Kinshasa. She submitted a birth certificate in her name which carried an issue date post dating her arrival in Ireland and bore the inverse date and month of birth given to the Commissioner.

6 The Refugee Applications Commissioner recommended that the Minister should not grant her a declaration of refugee status in July, 2006, and that recommendation was affirmed by the Refugee Appeals Tribunal by decision dated the 3 ^rd June, 2008. The applicant's oral appeal hearing had been delayed pending the judgment of the Supreme Court in Atanasov v. Refugee Appeals Tribunal [2006] IESC 53 (Unreported, Supreme Court, 26 ^h July, 2006) 1 and finally took place on the 13 ^th March, 2008.

The Appeal

7 The applicant was represented by the Refugee Legal Service (RLS) on appeal. They had asked the Refugee Documentation Centre (RDC) to conduct a search of COI to establish whether there was any no information available about the arrest of the applicant's father or about Theophile Mbemba. No information was found on the applicant's father or on the abduction of a UDPS member as described. It was established that Theophile Mbemba was the Interior Minister of the DRC government and that in May, 2006, he had announced the arrest of 32 foreigners who had plotted a coup against the Kabila Government, but that some in Kinshasa had expressed doubts about the veracity of the claim that the arrested foreign men were mercenaries. The RDC stated that no information could be found about complaints against Minister Mbemba.

8 A brief report from the applicant's GP dated July, 2007, was furnished which stated that she had "witnessed the killing of her father and aunt by soldiers"and was then sexually assaulted and raped by five "soldiers". The GP said she was suffering from post-traumatic stress disorder (PTSD), depression and gynaecological problems; she was on long-term antidepressants and was attending psychiatric and counselling services; she had attempted suicide and had suffered severe physical and mental trauma and was still suffering as a result. Confirmation of her attendance at a Health Service Executive (HSE) clinic for psychiatric review and at the Rape Crisis Centre for counselling was also submitted. Also furnished was a letter from Consultant Psychiatrist Dr O'Sullivan, who confirmed the diagnosis of PTSD with associated mild to moderate depression. She stated that with medication there was no evidence of depression at her most recent interview and that the symptoms of PTSD did not seem to be so significant.

9 Additional COI furnished at the appeal stage related to the rape of thousands of women and girls in eastern Congo's conflict, and abuses which went unpunished in the southern province of Katanga.

10 The Court has the benefit of a handwritten note taken by her legal representative at the hearing. A summary of the evidence is also contained in the Tribunal decision, from which it seems she gave an account along the same lines as she gave the Commissioner.

The Contested Decision

11 The Tribunal Member identified as the applicant's "core claim"her fears arising from her father's involvement with the UDPS and her witnessing of his kidnapping. While the claim of rape in 2000 was noted this incident was not the reason why the applicant ultimately left the DRC. She found that the applicant's problems proper began in 2005 when her father became involved in the UDPS. The Tribunal Member did not accept the applicant's narrative as plausible for the following reasons:

(i) "Given that the Applicant was still in the place where he[r] father was allegedly abducted with the door broken down and access and egress from easily made it seems highly improbable and impossible that if it was the intention of the soldiers to come looking for the Applicant they knew full well where she was"[sic];

(ii) It did not seem unreasonable for the applicant to return to the safe house since her father had lodged her there, and it was highly implausible and improbable that she instead went to a priest.

(iii) If her father was a member of the UDPS it would have been reasonable for her to contact the UDPS about her father's situation and about her own.

(iv) It seemed unbelievable that she would not have made reference to the problems regarding her father at her Section 8 interview when she simply stated that there was a war in the DRC.

(v) She presented as being very intelligent but when she was asked if she had visited her father before his alleged abduction in 2006 she was seriously evasive and non co-operative. It was put to her that she was being asked a very simple question but she...