F (M.M.) v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M.H. CLARK,
• Judgment Date: 19 March 2010
• Neutral Citation: [2010] IEHC 134
• Court: High Court
• Date: 19 March 2010

[2010] IEHC 134

THE HIGH COURT

[No. 126 J.R./2008]

[No. 130 J.R./2008]

F (M M) & L (L) v Refugee Appeals Tribunal (Garvey)

JUDICIAL REVIEW

BETWEEN

M. M. F.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (BEN GARVEY)

RESPONDENT

AND

BETWEEN

L. L.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (BEN GARVEY)

RESPONDENT

REFUGEE ACT 1996 S13

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

KHAZADI v MIN FOR JUSTICE & ORS UNREP MACMENAMIN 2.5.2006 2006/38/8020 2006 IEHC 175

KHAZADI v REFUGEE APPEALS TRIBUNAL UNREP GILLIGAN 19.4.2007 (EX TEMPORE)

M (N) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (ZAIDEN) UNREP MCGOVERN 7.5.2008 2008/38/8327 2008 IEHC 130

A (TMA) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 15.1.2009 2009 IEHC 23

L (LC) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP CLARK 21.1.2009 2009 IEHC 26

I (EF) v REFUGEE APPEALS TRIBUNAL & ORS UNREP CLARK 25.2.2009 2009 IEHC 94

G (E) & G (D) v REFUGEE APPEALS TRIBUNAL UNREP HEDIGAN 16.12.2008 (EX TEMPORE)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ATANASOV & ORS v REFUGEE APPEALS TRIBUNAL & ORS UNREP SUPREME 2007 1 ILRM 288 2006/3/519 2006 IESC 53

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

IMMIGRATION

Asylum

Extension of time - Delay - Leave to seek judicial review - Good and sufficient reason for delay - Interests of justice require merits of case to be considered - Whether medical evidence corroborative of applicant's claim - Consideration of previous decisions - Fasakin v Refugee Appeals Tribunal [2005] IEHC 423, (Unrep, O'Leary J, 21/12/2005); Atanasov v Refugee Appeals Tribunal [2005] IEHC 237, (Unrep, MacMenamin J, 7/7/2005); Khazadi v. Refugee Appeals Tribunal [2006] IEHC 175 (Unrep, MacMenamin J, 2/5/2006); M (N) v Minister for Justice Equality and Law Reform [2008] IEHC 130, (Unrep, McGovern, 7/5/2008); A (T M A) v Refugee Appeals Tribunal [2009] IEHC 23, (Unrep, Cooke J, 15/1/2009); L (LC) v Refugee Appeals Tribunal [2009] IEHC 26, (Unrep, Clark, 21/1/2009); I (E F) v Refugee Appeals Tribunal [2009] IEHC 94, (Unrep, Clark J, 25/2/2009); G (E) & G (D) v Refugee Appeals Tribunal (Ex tempore, Hedigan J, 16/12/2008); The State (Keegan & Lysaght) v Stardust Victims Compensation Tribunal [1986] IR 642 considered - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Relief refused (2008/130 JR - Clark J- 19/3/2010) [2010] IEHC 134

L (L) v Refugee Appeals Tribunal

Fact: A husband and wife who were nationals of the Democratic Republic of Congo sought leave for judicial review of the negative decision of the respondent against them, refusing them refugee status. Negative credibility findings were made against them, finding in particular the escape of the husband to be implausible and his travel to Ireland was also disbelieved. The oral hearing was adjourned to allow the production of medical reports. The applicants contended inter alia that the medical reports were corroborative of their accounts. They also contended that the Tribunal had acted in breach of fair procedures in failing to explain why the facts of earlier decisions were not binding.

Held by Clark J. that the medical evidence was not so supportive or corroborative of the applicants' claim as to require the Tribunal Member to explain why the medical evidence was rejected. Although it was preferable for the Tribunal Member to explain what significance attached to the medical evidence, his failure to do so did not breach of fair procedures. The Tribunal provided correct if formulaic reasons as to why he was not bound by earlier decisions. The applicants had not established substantial grounds nor had they shown any good of sufficient reasons for time to be extended. Leave would be refused.

Reporter: E.F.

1 The applicants are husband and wife and nationals of the Democratic Republic of the Congo (DRC). They seek leave to apply for judicial review of the decisions of the Refugee Appeals Tribunal, dated the 23 ^rd and 25 ^th October, 2007 respectively, to affirm the earlier recommendations of the Refugee Applications Commissioner that they should not be granted declarations of refugee status.

2 The related cases were heard together on the 2 ^nd March, 2010. Mr. Hugo Hynes S.C. with Mr. James Healy B.L. appeared for the applicants and Mr. Patrick McGrath B.L. for the respondents.

Background

3 The applicants applied for asylum on the 8 ^th September, 2003. Their personal details as provided is that they were married in 2000 and lived in the Matadi area of the DRC where the husband worked as a driver for his wife's brother in law NDW. The brother-in law was married to the wife's older sister and was the transport manager for a transportation company owed by family members of President Kabila. Neither husband nor wife or any members of their families were involved in any political party.

4 The applicants recount that in 2000 the transportation company undertook to transport five trucks of goods for the government from the port of Matadi to Kinshasa. En route, one of the five trucks went missing. It subsequently turned out that the trucks were carrying a consignment of arms and it was suspected that the missing truck had been intercepted by rebels. The brother-in-law as transport manager came under suspicion.

5 On the 3 ^rd April, 2000 the applicants, who were unaware of the unfolding drama, were paying a social family visit at the wife's sister's house when soldiers suddenly arrived and took the brother-in-law away. Some of the soldiers remained behind and detained and mistreated the applicants and the other family members. When NDW was returned later that day gunfire broke out as a result of which a family member was killed. NDW's young daughter was shot in the leg. The applicants then escaped. The husband says that they jumped through a window and the wife says that they broke down a door.

6 The applicants went to their own house but when they saw that it too was surrounded by soldiers they fled their town and hitched a lift on a truck which brought them to a small village where they found an abandoned hut in which they lived for three years. They had no contact with their family during that time and were helped by the local villagers. However in 2003 they were discovered and arrested on foot of a warrant by the President's intelligence service.. They were both detained in a named prison for two months during which time they both were subjected to regular and repeated rapes, sodomy and other extreme forms of torture and ill-treatment including daily beatings and an electric current being applied to parts of the body including the husband's genitalia. Every night they were taken from their cells to witness prisoners being killed.

7 While the applicants' questionnaires were almost if not completely identical, there were many significant discrepancies between their respective accounts when they were separately interviewed. In particular, the conditions under which the couple was held in the named prison differed in many material respects. Their story was that after two months of imprisonment, they were blindfolded and taken by their jailers on a long journey to the Angolan border where the husband's father was waiting for them with the senior State Prosecutor. They were advised to leave the country as it was unsafe for them to remain. The husband's father, who is a businessman dealing in salted fish, paid the soldiers $20,000 to release the applicants and a further &15,000 to an Angolan Army officer to hide them in his house in Luanda for two months while an agent arranged documents for them. That agent, Madame Victoria, travelled with them to Ireland, holding the passports for them and retaining those documents after they passed through immigration. They were then left on their own and took a taxi to the offices of the Refugee Applications Commissioner.

8 In the meantime NDW had escaped and he too claimed to have travelled to Ireland with the assistance of an agent who arranged documents on his behalf. He applied for asylum, was given the benefit of the doubt at the appeal stage and was granted refugee status. He applied for family reunification and his wife and daughter now reside in the State and are in contact with the applicants in these proceedings, who are family members. The wife gave birth to two children in Ireland in 2004 and 2006 respectively. The first child has Irish citizenship but it is not known whether the couple applied in the requisite period to benefit from her citizenship status under the terns of the IBC05 scheme.

The ORAC stage

9 The applicants attended for separate interviews. The wife was interviewed in August and November 2004 and the husband in November, 2004 and January, 2005. On the 18 ^th June, 2005 negative decisions issued in the wife's case. The s. 13 report shows that the Commissioner was aware that NDW was married to the wife's sister and was a refugee living in Ireland. In fact NDW's interview notes and his negative s.13 report were appended to the wife's s. 13 report and discrepancies between his evidence and that of the wife were noted. By way of comment the Court notes that the account given by NDW of his treatment while incarcerated bears a striking similarity to the account given by the husband and wife in this case of their conditions of detention.

10 Ultimately, the s. 13 report stated that the wife's account was found "very hard to believe". It was found "inconceivable" that the couple could have found an abandoned hut in which they lived for three years or that the military would have any interest in tracking down the wife long after her brother in law had disappeared. The story of their life in the abandoned hut in a remote village was not found credible and it was suspected that the story was a "dubious ploy" invented...