EKK (Democratic Rep. of Congo) v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Stewart
• Judgment Date: 29 January 2016
• Neutral Citation: [2016] IEHC 38
• Docket Number: [2013 No. 237 JR]
• Court: High Court
• Date: 29 January 2016

BETWEEN

E.K.K. (Democratic Rep. of Congo)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY,

THE REFUGEE APPEALS TRIBUNAL,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2016] IEHC 38

[2013 No. 237 JR]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – The Refugee Act, 1996 – Appeal against the decision of the Refugee Appeals Tribunal – Certiorari – Fear of persecution – Practice & Procedures – O. 40, r. 14 of the Rules of the Superior Courts, 1986

Facts: The applicant sought an order of certiorari for quashing the decision of the second named respondent affirming the determination of the Refugee Applications Commissioner that the applicant should not be declared a refugee. The applicant contended that second named respondent was bound to consider objective country of origin information before making decision in relation to the applicant's general credibility. The second named respondent contended that there was a procedural lapse on part of the applicant as the grounding affidavit sworn by her in English needed to be supported by a certificate as required under o. 40, r. 14 (2) (b) of the Rules of the Superior Courts, 1986 as the applicant required the assistance of an interpreter during her asylum application.

Ms. Justice Stewart refused to grant an order of certiorari to the applicant. The Court held that the procedural formalities enunciated under o. 40, r. 14 of the said Rules of 1986 were mandatory for ensuring that the applicant fully understood and comprehend the asylum process. The Court held that it had been well established that a decision-maker was not required to assess the country of origin information where there were negative credibility findings against the applicant.

JUDGMENT of Ms. Justice Stewart delivered on 29th day of January, 2016

Background

1 This is a telescoped hearing seeking, inter alia, an order of certiorari in respect of the decision of the Refugee Appeals Tribunal (hereinafter “the RAT”) dated 28th February, 2013 to affirm the decision of the Refugee Applications Commissioner to refuse to grant the applicant refugee status pursuant to a Notice of Motion dated 4th April, 2013.

2 The applicant is a national of the Democratic Republic of the Congo (DRC) who was born in Kinshasa on 21st April, 1979. She married Mr. W.M., a fellow Congolese national on 13th October, 2006 and has two children, but she is not their biological mother. She believed that her husband was in the Czech Rep. as a refugee there; however despite making attempts, she last spoke to him in January, 2007. The applicant who was granted permission to remain in the state on 18th February, 2015 pursuant to an application brought by the applicant's minor child. The applicant claims to have left the DRC on 9th April, 2011 and arrived in Ireland through Dublin airport on 10th April, 2011 on a Belgian passport which her agent had given her. She then applied for asylum on 11th April, 2011. The applicant bases her claim upon a fear of persecution of state agents in the DRC on the ground of political opinion.

3 The applicant claims that she had been working in a clothes shop called in the DRC in 2001 and that she had been promoted to store manager in 2008. This promotion necessitated her to travel for the purchase of fabrics. The applicant states in her questionnaire that she has travelled, with her employer, to the Czech Rep. in 2004, South Africa in 2009 and 2010, Nigeria in 2006 and 2007, Senegal in 2007, Republic of Benin in 2007, Mali in 2005 and 2008 and the UAE in 2011 for business. The applicant claims that she became acquainted with a particular customer of the shop who was a general in the DRC army. She then claims that her employer became the general's mistress. The applicant also attended an English language school with her employer. General M. attempted a coup d'état in September, 2010. The applicant was subsequently arrested by a branch of the secret service (DEMIAP) on 7th February, 2011.

4 While she was in custody, the applicant alleges that she was questioned about her employer and her trips abroad and these officers also went through her personal belongings including her personal messages on her mobile phone. She then states that they found a text message from her employer sent in January, 2011 which stated that the applicant was trusted by her employer not to disclose any information about any business deals. It was put to the applicant in questioning that she was using these trips abroad to drum up support for the general in foreign countries.

5 The applicant claims to have been transferred to a military camp where she was detained for thirty-three days. It was put to her, by her detainers, that she had been involved in the coup d'état due to the fact that she had travelled with her employer who had relations with the general. The applicant claims that she was raped, sexually abused and intimidated whilst she was being detained. She managed to escape this military camp on 12th March, 2011, with her exit apparently having been arranged by the applicant's sister. The applicant stated in her questionnaire: ‘ Regarding my travel, I don't know how it was arranged. All I know that my family member ‘M.K.’ arranged it with the help of people she knows.’

6 Her escape was made possible by a soldier of the camp who took the applicant and placed her in a jeep and took her to Maloko, from where she was taken to Brazzaville. This soldier then conveyed the applicant to a place where she stayed with two other soldiers of the military camp. These soldiers informed the applicant that the authorities were searching for her and they helped her to get to Brazzaville on 9th April, 2011. In Brazzaville, the applicant met with an agent who brought her to Ireland from Maya-Maya airport in Brazzaville, via Paris, where she spent some fifteen hours before travelling to Dublin. The applicant states, in the s. 11 interview, that her sister paid for her travel from the DRC to Ireland.

Procedural background

7 The applicant sought asylum on 11th April, 2011, having arrived in the state on 10th April, 2011. The applicant participated in the “ASY1 Form' procedure and in the s. 8 questionnaire on 19th April, 2011, which was completed in both English and French, stating that her first language was Lingala, Kikongo, with French being her second language. At Q. 20, the applicant stated that she did not possess her own travel documentation but that she would find a way to have documentation with her during the asylum process. At Qs. 23a and 23b, the applicant states that she and her parents and sister are members of the church called the KCC and that her sister is a member of the opposition political party in the DRC known as the “MLC' (Movement of the Liberation of the Congo). The applicant also states at Q. 30, in her questionnaire, that she requires ‘psychological help as soon as possible.’

8 The applicant's s. 11 interview took place on 1st September, 2011 with the aid of an interpreter. With regard to her travel route to Ireland, she states, at Q. 90, that she did not claim asylum in France on her way to Ireland, as she was ‘ following the instructions of the person who was taking me.’ The applicant stated in her s. 11 interview that she feared her return to the DRC on the basis of the treatment meted to her whilst in prison and that she did not want to experience this again. Such treatment included sexual abuse and rape. The s. 11 interview was dated 1st September, 2011.

The impugned decision

9 The Refugee Applications Commissioner's s. 13 report was compiled on 8th September, 2011, with a recommendation issuing on 22nd September, 2011. Under section 3.3 of the s 13 report, the Commissioner outlined the “well founded fear of persecution as perceived by the applicant. The Commissioner, having considered portions of the country of origin information, believed that ‘ a person who was involved with General M. may have problems with the authorities in the DRC.’

10 The Commissioner believed that there was an irreconcilable delay between when the coup was staged and when the applicant was eventually arrested by state authorities, a period of some four months. The s. 13 report found, in respect of this delay that ‘… it is difficult to accept that the authorities would wait this long before questioning the applicant if they believed she may have links to the attempted coup d'état in September, 2010 which serves to undermine the credibility of her claim.’

11 The Commissioner also found difficulty in believing that the applicant was helped by soldiers in escaping her detention in prison on 12th March, 2011. The applicant also stated that the soldier took her to Makolo where she stayed with two other soldiers who had previously worked in the military camp where the applicant was detained. The Commissioner put it to the applicant that it was difficult to believe that a soldier would risk helping the applicant to escape and that it was also difficult to believe that two soldiers would live with her and help her if she remained a person of interest to the authorities in the DRC. The applicant's reply in interview to these assertions was that ‘…I don't know. Even myself I am still wondering what had been offered to them or what had been given to them. I am still wondering.’ The Commissioner did not accept the credibility of these claims and felt that they ultimately undermined the credibility of the applicant's claim.

12 The Commissioner found that the applicant travelled through France on her way to Ireland and could have applied for asylum in France before travelling to Dublin. The Commissioner summarised the applicant's claim as the following:-

‘ With regard to significant aspects of the applicant's claim, as laid out above, the applicant's statements have been found to be lacking in coherence and plausibility, and her...