K (K) v Refugee Appeals Tribunal (Garvey)

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M.H. CLARK,
• Judgment Date: 15 June 2010
• Neutral Citation: [2010] IEHC 312
• Docket Number: [No. 1677 J.R./2007]
• Court: High Court
• Date: 15 June 2010

[2010] IEHC 312

THE HIGH COURT

[No. 1677 J.R./2007]

K (K) v Refugee Appeals Tribunal (Garvey)

JUDICIAL REVIEW

BETWEEN

K. K. [DRC]

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (BEN GARVEY)

RESONDENT

AND

IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTIES

REFUGEE ACT 1996 S11

IMMIGRATION

Asylum

Credibility - Function of Tribunal in assessing credibility - Effect of assessment of credibility on assessment of documents - Circumstances where applying forward-looking test appropriate - Whether substantial grounds - Leave granted (2007/1677JR - Clark J - 15/6/2010) [2010] IEHC 312

K(K) v Refugee Appeals Tribunal

Facts: The applicant who was born in Kinchasa sought leave for judicial review of a decision of the respondent recommending a negative decision in an application for refugee status on the basis of persecution relating to his political and religious beliefs. The applicant challenged the validity of the decision on the basis that it contained errors of fact and that the assessment of credibility was flawed. His wife had also applied for refugee status and he had provided more extensive information as to his involvement with an organisation in Kinchasa than she had. The respondent had concluded that the country of origin information did not support the account provided by him. The appeals of the husband and wife had been conducted on the same day. The issue arose as to the impact of the account of the wife on that of the husband, having regard to the assessment of credibility.

Held by Clark J. that while recognising that the assessment of credibility where major inconsistencies in the evidence of the husband and wife presented a challenge for the Tribunal, the Court had concerns that the credibility of the husband was infected by the negative findings against the wife. Leave would be granted on the grounds that 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 that the negative assessment of credibility by the respondent led him to wrongly reject the medical evidence.

Reporter: E.F.

MS. JUSTICE M.H. CLARK,

1 The applicant is a national of the Democratic Republic of the Congo ("DRC") who seeksleave to apply for judicial review of the decision of the Refugee Appeals Tribunal, dated the 25^th October, 2007 which affirmed the recommendation of the Refugee Applications Commissioner that he ought not to be declared a refugee.

2 The application was heard on the 28^th January, 2010. Mr Robert Haughton S.C. appeared for the applicant and for his wife H.M.W., whose leave application [2008 No. 33 J.R.] was heard on the 18^th March, 2010. Ms Fiona O'Sullivan B.L. appeared for the respondent in the husband's case. The Court will also deliver judgment in his wife's case today.

3 The applicant challenges the validity of the RAT decision on the basis that the decision contained errors of fact, deficiencies in the assessment of documents furnished and in the assessment of credibility, flaws in the assessment of medical evidence proffered and for failing to consider the future danger to the applicant if he were to be returned to his country of origin.

4 The applicant applied for asylum at Dublin airport on the 25th August, 2004. His wife had previously applied for asylum also at the airport on the 6th July, 2004 with their two infant daughters. She says she was unaware at the time that her husband was alive as she had not heard from him in almost 18 months. Although his ASY-1 form is not before the Court and so it is not clear what he said when he first arrived in Ireland, he has since said that he did not know that his wife and daughters were already in Ireland. The husband's account in his questionnaire was that he was born in 1967 in Kinshasa. He was in education for 13 years and then worked as a trader at Matete market in Kinshasa. While he had been raised a Catholic he had ceased to practice. In late 1998 he joined the BDK (Bundu dia Kongo) in Kinshasa because he liked their political opinion and religion. Following a period of nine months training in the philosophy of the party he was sworn in as a member in 1999. He was in charge of propaganda and distributing leaflets and papers. The BDK is described in country of origin documents as an ethnically-based spiritual and political movement seeking political autonomy in the Bas-Congo province of western DRC, on the border with Angola. A UK Home Office Report of April, 2005 describes the BDK as a politico-religious organisation which demands that its adherents renounce western and eastern religions and seeks to promote ancient ancestral traditions.

5 He married his wife who lived in Bas Congo in October, 1999. He continued to work in Kinshasa until February, 2002 when - following a complaint about what he considered to be unfair taxes on traders (retailers) - he was arrested at his home in Matete, Kinshasa and taken to the police station where he was described as a trouble maker. His brothers secured his release by bribing a policeman who permitted his escape during a planned transfer to Makala prison. He then left Kinshasa and went by truck and ship to join his wife, daughter and mother-in-law in Luozi, some 350 km away. He stayed in Luozi, worked as a trader and continued his political activities. No explanation was given (nor were any questions asked) on how the marriage was conducted between October, 1999 and February, 2002 when he moved to Luozi.

6 In Luozi on the 40^th anniversary of the creation of Central Congo he took part in a march organised by the BDK. This was on the 22^nd July, 2002 when he and others were beaten up and arrested and he sustained eye injuries. Other people around him were killed and many were injured. His recital of events differed from that of his wife in that he did not mention any incident at a prayer meeting two days previously nor did he mention the alleged disappearance of his mother-in-law. Following his arrest he says that he was taken to a named camp where he was held to await trial in Kinshasa. He claimed that he was "tortured, beaten up, raped" while in captivity.

7 On the 20^th January, 2004 he was transferred to Wing 4 of Makala Central Prison in Kinshasa where he was relatively well treated and was not tortured. However he developed typhoid in August, 2004 and became very ill. He was admitted to intensive care in Kinshasa General Hospital where he spent five days. In the meanwhile his family in Kinshasa had been contacted by the authorities and told of his detention in Makala and his subsequent move to the Hospital. They visited him and bribed a doctor to secure his...