K (K) v Refugee Appeals Tribunal (Garvey) and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 25 March 2011
• Neutral Citation: [2011] IEHC 125
• Docket Number: [No. 1677JR/2007]
• Court: High Court
• Date: 25 March 2011

[2011] IEHC 125

THE HIGH COURT

[No. 1677JR/2007]

K (K) v Refugee Appeals Tribunal (Garvey) & Ors

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

K. K.

APPLICANT

AND

BEN GARVEY ACTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTIES

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11

IMMIGRATION

Asylum

Credibility - Error of fact - Approach of High Court in assessing whether or not to interfere with decision based on credibility - Task of Tribunal Member in conducting oral appeal hearing - Appeal of applicant and applicant's spouse heard together - Whether error of fact enough by itself to vitiate evaluation of credibility - Whether Tribunal Member disproportionately influenced by lack of credibility in spouse's claim - Whether Tribunal Member acted within jurisdiction in rejecting medical evidence - K(K) v Refugee Appeals Tribunal [2010] IEHC 312, (Unrep, Clark J, 15/6/2010) considered - Refugee Act 1996 (No 17), ss 11 and 13 - Judicial review refused (2007/1677JR - Cooke J - 25/3/2011) [2011] IEHC 125

K(K) v Refugee Appeals Tribunal

Facts The applicant was granted leave to challenge, by way of judicial review, the decision of the respondent, which affirmed the earlier recommendation that the applicant ought not to be declared a refugee. The two grounds upon which leave was granted were firstly that the respondent acted irrationally and unreasonably in reaching his decision on credibility in that he was disproportionally influenced by flaws in the narrative given by the applicant's wife and ignored the husband's greater knowledge and awareness of the BDK and secondly the respondent's negative assessment of credibility led him to wrongly reject the medical evidence. The applicant's appeal was dealt with by the respondent at the same time as a similar appeal by his wife and there was a conflict between their evidence such that following the giving of evidence by his wife, the applicant was recalled by the respondent and further questions were put to him. The applicant claimed he suffered persecution as a result of his membership of a religious group, the BDK, which was allied to the opposition in the Democratic Republic of Congo. The central events upon which the claim was based took place in July 2002 when he took part in a protest march. The applicant claimed he was brought to a military camp where he was detained for seventeen months and tortured, stabbed in the leg by a soldier and raped. The respondent identified six areas of concern regarding the credibility of the applicant's claim including the mistaken finding that the applicant did not mention the alleged rape in his questionnaire and also the circumstances of his joining the BDK were at variance with those described by his wife. The respondent also relied on country of origin information and the fact that an amnesty was granted to all BDK members in April 2003 to undermine the applicant's credibility.

Held by Cooke J. in refusing the application: That there was no doubt the respondent erred when he stated that there was no mention in the asylum questionnaire of the fact that the applicant had been raped while detained in custody. That error had to be considered in the context of the reliance placed by the respondent on the other factors regarding credibility. Furthermore, the respondent was influenced by the lack of credibility in the applicant's wife's testimony. Nevertheless, it was equally clear that the analysis set out in the decision addressed squarely the 'fundamental claim' and found it lacking in credibility not only upon the basis of the discrepancy between the applicant and his wife in relation to BDK membership but first and foremost upon the basis that the seventeen month period of detention in the military camp was inconsistent with the recorded consequences of the march in July 2002, and with the subsequent Amnesty in April 2003. Accordingly, the respondent was not disproportionately influenced by the lack of credibility in the wife's claim and consequently the first leave ground was not made out. It followed, that the second ground could not be upheld either.

Reporter: L.O'S.

Mr. Justice Cooke

1 By order of the Court (Clarke J.) of 15^th June 2010, leave was granted to the applicant to seek judicial review of a decision of the Refugee Appeals Tribunal dated 25^th October 2007 which had affirmed the recommendation that the applicant ought not to be declared a refugee contained in a report under s. 13 of the Refugee Act 1996 (as amended) dated 21^st July 2005.

2 The two grounds upon which leave was granted were as follows:-

3 (i) The respondent acted irrationally and unreasonably in reaching his decision on credibility in that he was disproportionately influenced by flaws in the narrative given by the applicant's wife and ignored the husband's greater knowledge and awareness of the BDK;

4 (ii) The respondent's negative assessment of credibility led him to wrongly reject the medical evidence.

5 3. The issues raised by those grounds are explained by the fact that the applicant's appeal against the s.13 report came to be dealt with by the respondent at the same time as a similar appeal by the applicant's wife. Both are nationals of the Democratic Republic of Congo (DRC). The applicant arrived in the State and claimed asylum on 25^th August 2004. His wife had arrived earlier with two infant daughters and applied for asylum on 6^th July 2004. She apparently said that she was unaware at the time that her husband was alive as she had not heard from him for eighteen months. She claimed that it was by coincidence that she later discovered that he was in this country and they were then able to meet up. He, on the other hand, had managed to obtain an Irish passport in the DRC and admitted to the doctor who furnished the medical report on his injuries mentioned later in this judgment, that he had come to Ireland in order to rejoin his wife and two daughters.

6 4. The applicant had received education for thirteen years in the DRC and worked as a market trader in Kinshasa. He had been raised as a Catholic but had ceased to practise. He claimed that in 1998 he joined a religious group or movement allied to opposition in the DRC called Bunda Dia Kongo or "BDK". He claimed that following a period of nine months of familiarisation with the party's philosophy and objectives he was sworn in as a member and was active in propaganda and in the distribution of leaflets and papers. The BDK is acknowledged in the country of origin information as an ethnically based spiritual and political movement which campaigns for political autonomy of the Bas - Congo province of the DRC.

7 5. He claimed to have been forced to flee the DRC because of the persecution he sustained for his activities in the BDK. In February 2002 he had objected to excessive taxes which were imposed on traders in the market where he worked and was arrested and accused of attempting to organise a rebellion. He was brought to a police station were he claims he was beaten up by police officers.

8 6. The central events upon which his claim for asylum was based took place in July 2002. When he took part in a protest march on 22^nd July he and others were beaten up and arrested. Many were killed and injured. He claimed that he was brought to a military camp where he was detained for seventeen months and tortured, stabbed in the leg by a soldier and raped. He was then transferred to a prison but became ill and the authorities brought him to a hospital in Kinshasa where he was visited by his brother, who then organised his escape from hospital and his flight from the DRC to Ireland. It is claimed that the release was organised by bribing a doctor to permit him to escape when he was...