Da Silveira v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Justice Michael Peart
• Judgment Date: 09 July 2004
• Neutral Citation: [2004] IEHC 436
• Docket Number: Record No: No. 879JR/2003
• Court: High Court
• Date: 09 July 2004

Da Silveira v Refugee Appeals Tribunal & Anor.

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT, 1996, IMMIGRATION ACT,

1999; AND THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000

BETWEEN:

RITA KAFUI DA SILVEIRA

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL (PATRICK HURLEY - MEMBER) AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

[2004] IEHC 436

Record No: No. 879JR/2003

THE HIGH COURT

Judgment of

Justice Michael Peart

1 delivered the 9th day of July 2004 :

2 This is an application for leave to seek judicial review for the reliefs set forth in the Statement of Grounds dated 26^th November 2003 on the Grounds therein set forth. These reliefs include a Declaration that the RAT decision to deny refugee status, and the Recommendation of the Tribunal Member, are ultra vires and without efficacy; an Order of Mandamus directing that her claim for refugee status be remitted for hearing by the RAT; an Order of Certiorari quashing the said Decision and Recommendation; and an Injunction restraining the Minister for Justice, Equality and Law Reform ("the Minister") from taking any steps to affirm the said Decision denying refugee status, and/or from making a proposal to deport and/or to deport the Applicant.

3 The grounds upon which relief is sought can be summarised as follows:

4 a A. The RAT Decision does not accurately reflect the conduct and content of the hearing, and that the Tribunal Member has acted in breach of the applicant's right to fair procedures and natural and constitutional justice;

5 b B. The Decision contains material errors of fact in relation to a matter relied upon by the Member regarding the applicant's credibility;

6 c C. By reason of factual errors, the Member has failed to take account of directly relevant evidence and material; and has omitted to consider the rape attack the applicant in his assessment and adjudication and consideration of whether the applicant has a well-founded fear of persecution;

7 d D. The Member has erred in law and in contravention of relevant UNHCR Guidelines for the adjudication and consideration of appeals for female asylum applicants;

8 e E. The Member has acted in breach of the applicant's right to fair procedures in the manner in which he has assessed the applicant's credibility;

9 f F. The Member has erred in law and acted ultra vires by engaging in and relying upon personal conjecture in reaching negative conclusions regarding her credibility;

10 g G. That the Member erred in law and acted ultra vires s.2 and Art. 1(A)(2) of the Refugee Act,1996 in the assessment of the applicant's credibility in omitting to consider and assess whether the applicant had a well-founded fear of persecution for a Convention reason, and whether there was a real chance or possibility of persecution if the applicant was refouled to Togo;

11 h H. The Member erred in the manner in which he has assessed the objective element of the applicant's fear of persecution;

12 i I. That the Member failed to properly consider and give weight to all elements of the applicant's account of events when assessing credibility and failed to consider the real possibility or chance of persecution should she be refouled;

13 j J. The Decision and Recommendation are unreasonable, irrational and fly in the face of commonsense and the weight and preponderance of material and information and evidence;

14 k K. The Member has failed to consider and/or properly and adequately consider and/or give any weight to relevant information and material before him;

15 l L. The Member failed to have due regard to the subjective fear of persecution and the past persecution suffered by the applicant;

16 m M. The Member erred in relation to the standard of proof which he applied;

17 n N. The Member failed, when considering the appeal, to have regard to the principles and rights under the Refugee Convention of 1951, to which effect was given here by the Refugee Act,1996, and that the appeal should have been considered in the light of relevant human rights Conventions and Instruments as set forth in the statement of Grounds.

Background Facts:

18 The applicant in her Grounding affidavit has stated that she is a national of Togo, and that she arrived in this State on the 14thh November 2002, whereupon she applied for refugee status on the following day by completing the usual ASY1 Form. On the same date she completed the Questionnaire in which the following facts, amongst others, are revealed:

19 1. She was born on 27^th November 1970, and is of the Baptist faith

20 2. She was married on 4^th October 2000 according to an ethnic rite and civil ceremony, but not according to any religious rite;

21 3. Her husband is also Togolese, and still resides in Lome, Togo, as do her two children (born 1988 and 1990 respectively) who live there with her mother;

22 4. She has two sisters who both live in Lome, Togo;

23 5. The reason given for not having her passport is that she had"no intention of travelling and of leaving my husband and my two children behind in the country."

24 6. She has a fear of persecution in both Togo and in Ghana on grounds of"political opinion"only (Q.24);

25 7. The reason she fears persecution is explained at Q. 26 as:

"Because all of the Togolese men and women are tired of the dictatorship that reigns in our country; everybody gets arrested and tortured; the people are extremely fatigued. I am here thanks to god. On the 28^th of September, I was arrested and battered until I lost consciousness. When I came to, I found myself in the Lome Gendarmerie camp. I did a month. We ate once a day, and the food was served in the hands; if you dropped it, that was it."

26 8. In Q. 27 she stated that she fears persecution at the hands of the RPT who, she says, want to eliminate all other political parties in the country, and that she is a"UFC sympathiser and singer". The reference to being a singer is in the context that she sings at political rallies. She fears death because her father died when she was two years old, and she died for Togo". She says that when she was arrested she was brought to the Lome Gendarmerie Camp, and was battered and fell unconscious; that life in prison was hell; that there were many women in the room where she was kept; that every morning the police came and took some people away and that they never heard from them again, and that some are dead; that after 4 weeks in prison she became ill, and that the police upon being called to her said that she would have to be brought to the infirmary; she was given medication there and was told to get some rest; that on the same night she took a nurse's uniform, put it on together with a pair of shoes, a pair of trousers with a badge and she left. She says that when she got home she could not see her children and her husband, and went directly to a girlfriend's house and told her what had happened. She was told to stay in the room, and apparently a few hours later this friend said "we are leaving for Ghana, I have an uncle there." They left on the same night.

27 9. She fears persecution from"the Gendarmes, the R.P.T. people; it is all the same; they work for the President of the Republic."

28 10. She did not report her fears to the authorities because she regards the authorities as "all the same", and she would not put her life at risk again.

29 11. She was at the time a member of the UFC Party (Union des Forces du Changement)

30 12. As far as her activities as part of the UFC Party are concerned, she said that she is a"sympathiser and a singer in the group." And that on the occasion when she was arrested she was singing and dancing at the demonstration.

31 13. In answer to whether she had been mistreated by the authorities, she stated at Q.31 that she had been mistreated"on the 28^th September because of the meeting of my party."

32 14. At Q.32 in answer to whether she had ever been arrested, detained, interrogated or imprisoned in her own country, she stated that she had been, namely on 28^th September in Lome, and she says "I was arrested along with all the UFC sympathisers and the General Secretary; that is where things became serious, with slaps and the use of batons. "

33 15. at Q.39 she explained what she feared would happen if she returned to her country, in the following way:

"If you return me to my country I will die. I am a retailer on the Greta Market. The people want the RPT people and the president of the Republic to leave, because we are all tired of dictatorship. On the 28^th September, we held a demonstration in Freau Jardin in Lome; the sympathisers were there; everybody was there; we started our usual songs; we were dancing; there was a large number of people, even children; the police and gendarmes were also there; at about 3pm Mr Jean Pierre Fabre, the General Secretary, arrived at the location; the police approached Mr Jean Pierre Fabre straightaway, and asked him to follow them; everybody wanted to react, but the General Secretary asked us to remain calm; they left with the General Secretary. We could not stay without doing anything; we sang and danced; we screamed; the police threw some tear-gas and started battering us. Many were arrested; there were many of us in Lome Gendarmerie, and we were led to a small, dark, bare room. I was beaten up that evening; I could not breathe well. We ate once a day, and we were given food in our bare hands - if you dropped it, that was it for you. I spent one month in prison, and thanks to god, I am now here."

34 16. Regarding travel arrangements she states at Q.43 that she came here with the uncle of her girl friend, and at Q.44 that because she was not safe in Ghana her girl friend brought her to her uncle, and he went to fetch somebody who accompanied her on her trip. She states that she left Ghana on 13^th November, and that they had a stop-over but cannot remember where. She...