K (R M) v Refugee Appeal Tribunal & Minister for Justice, Equality & Law Reform

• Jurisdiction: Ireland
• Judge: MS JUSTICE M. H. CLARK,,MS JUSTICE M. CLARK,
• Judgment Date: 16 September 2013
• Neutral Citation: [2013] IEHC 436,[2010] IEHC 367
• Court: High Court
• Date: 16 September 2013

K (R M)[DRC] v Refugee Appeals Tribunal (Linehan) & Minister For Justice

JUDICIAL REVIEW

BETWEEN

R.M.K. [DRC]

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (DENIS LINEHAN) AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

[2010] IEHC 367

[No. 122 J.R./2009]

THE HIGH COURT

IMMIGRATION

Asylum

Persecution - Political opinion - Medical evidence of torture - Weight to be accorded to medical evidence - Whether first respondent failed to take relevant considerations into account - Whether findings of first respondent irrational - Whether first respondent made errors of law - Relief granted (2009/122JR - Clark J - 28/09/2010) [2010] IEHC 367

K(RM) v Refugee Appeals Tribunal

Facts: The applicant was from the Democratic Republic of the Congo and had sought asylum based upon fear of persecution relating to his political opinion. The applicant sought to quash a decision of the respondent. He alleged that he had been arrested following a news broadcast of political events. An initial decision by the Refugee Appeals Commissioner was quashed by the High Court for failing to consider the medical evidence furnished. The reports were resubmitted for fresh consideration and it was the second negative decision which was impugned. The Tribunal Member made findings similar to those originally made even though they had been furnished with the medico-legal reports.

Held by Clark J. that three medical reports which were supportive of each other were not available to the Commissioner and while there were some minor inconsistencies in the applicant's narrative that these issues were not so compelling in the context of language translation and cultural differences to outweigh the medical evidence. With some hesitation, the Court was obliged to find that the decision to reject the medical evidence in the manner expressed was irrational. The Tribunal had failed to consider the medical evidence and that the decision lacked the strength and clarity required to reject the contents of the medical reports. The decision would be quashed and the appeal remitted for fresh consideration by a different Tribunal member.

Reporter: E.F.

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S2

K (RM) 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

S (DVT) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL 2008 3 IR 476 2007/54/11621 2007 IEHC 305

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

P (MJ) v -REFUGEE APPEALS TRIBUNAL UNREP COOKE 19.5.2009 (EX TEMPORE)

VIRJON B v SPECIAL ADJUDICATOR UNREP 17.6.2002 2002 EWHC 1469 (ADMIN)

MIBANGA v SECRETARY OF STATE FOR THE HOME DEPT 2005 INLR 377 2005 EWCA CIV 367

1 1. The applicant seeks to quash the decision of the Refugee Appeals Tribunal dated the 18 ^th December 2009 which affirmed the recommendation of the Refugee Applications Commissioner that he should not be declared a refugee. Leave to challenge the decision was granted by O'Keeffe J. on the 25 ^th February 2010 on the grounds that the Tribunal Member had failed to take into account relevant considerations, made findings which were irrational and made errors of law in his decision. These grounds will be further outlined later as it is first necessary to understand the nature of the case and then the challenge. The hearing took place on the 27 ^th, 28 ^th and 29 ^th April 2010. Mr. Anthony Collins, S.C. with Mr. Colm O'Dwyer, B.L. appeared for the applicant and Mr. Anthony Moore, B.L. for the respondents.

Background

2 2. According to the applicant, he is from the Democratic Republic of the Congo (DRC). While not married he is the father of two young sons who he was raising himself with the help of his younger brother as he had separated from their mother. They remain in the DRC and the Red Cross is endeavouring to find them. The applicant applied for asylum in July 2003 at the Refugee Applications Centre, claiming to fear persecution by reason of his political opinion. His account of why he seeks refugee status is as follows:- he is a graduate electrical engineer who since his graduation in 1998 worked with the DRC State-controlled national television station (RTNC) as a maintenance engineer. On two occasions the reporting of political events by the broadcasting authority led to his arrest and detention for short periods. As he then played no role in editorial policy and had no executive powers he was released after he had explained his situation.

3 3. Later, due to his high qualifications, he acquired some management and editorial authority and in pursuit of his belief in journalist integrity, he authorised the broadcasting of a number of news programmes which dealt with politically sensitive issues. These included discussions on President Joseph Kabila's ethnic origins, an interview with a high profile critic of the government and a report on the massacre of Rwandan refugees in a camp in Eastern DRC during the civil war. These broadcasts without governmental clearance led to the applicant's arrest, detention and torture for a period of 63 days after which he fled to Ireland and sought asylum.

4 4. The particular event which led to his arrest occurred on the 14 ^th May 2003 when he and others of the editorial staff had authorised the broadcast of a news programme showing previously unseen photos which placed Joseph Kabila when he was serving in the military at the Tingi Tingi refugee camp. The photographs had been given to the TV station editors who in turn gave them to the applicant. On the night of the 14 ^th/15 ^th May 2003 as he was completing his shift at work at around 12.30am he was arrested by the special police force and was brought to a police detention centre.

5 5. The next day, he was brought to the GLM ( Group Litho Moboti) Centre in Gombe, Kinshasa. He was held there in an underground cell for approximately 63 days in conditions of extreme cruelty. The soldiers subjected him to various forms of ill-treatment including severe beatings with wire, sticks and military belts and burning with cigars. His limbs were restrained and he was beaten and kicked. He was in constant fear of execution, was made aware of the execution of other prisoners and witnessed the execution of two of the prisoners. He was beaten regularly, a finger was broken and he suffered a rectal prolapse and sustained marks and scars on his body. He was interrogated on the subject matter of the news programmes which had been broadcast and he has since learned that other RTNC station employees were brought to trial and eventually convicted and sentenced.

6 6. On the night of the 17 ^th/18 ^th July 2003 he was taken out of his cell under guard in the GLM by a Colonel and believed at the time that he was going to be executed. He was taken to the Colonel's office where his file was on the desk. He was then driven to the Colonel's home and then to Congo-Brazzaville where he remained for four days while arrangements were made for his onward travel to Dublin via Paris. The Colonel said that he would not identify himself in order to protect his own position but he told the applicant that his father who had been a politician had been helpful to him when he was a young soldier in getting him into the army officers' training unit and that this motivated his desire to help the applicant to escape.

7 7. The applicant who had never held a passport was furnished with a red passport which his travel facilitator presented at the various airports they passed through. Although he did not have a visa to enter Ireland he says he did not experience any difficulties passing through Irish immigration. He did not apply for asylum at the airport but instead went to the offices of the Refugee Applications Commissioner. He presented his national television ID card as evidence of identity.

8 8. The applicant provided much detail of the events which led to his three arrests at his s. 11 interview with the Commissioner in September 2004. However he did not at that stage have any medical evidence to support his claim. The Commissioner did not find his narrative credible and a negative recommendation followed. Among the negative credibility issues outlined in the s. 13 report was the finding that no evidence could be found of an actual massacre at the Tingi Tingi camp or of any link between Mr. Joseph Kabila and events at that refugee camp. Considerable importance was attached to the fact that country of origin information (COI) indicated that the DRC government had closed the GLM detention centre in 2001 thus raising serious credibility issues relating to the applicant's core claim that he had been detained and tortured there in 2003. The applicant's account of his role in the television station and his escape and travel were found to be neither credible nor plausible. A number of discrepancies in his account of how he received the photographs of the alleged massacre and the time of his asserted arrest were outlined.

The First Appeal

9 9. The applicant appealed to the Refugee Appeals Tribunal. The Notice of Appeal addressed a number of the credibility findings made by ORAC. The previous deficit relating to medical reports was remedied by the provision of an unusually strongly worded report from SPIRASI which supported the applicant's claim that he was tortured, together with reports from his GP and a consultant psychiatrist. The key credibility issue highlighted by the Commissioner in relation to the alleged closure of the GLM detention centre in 2001 was addressed by COI which suggested that although the President had ordered extrajudicial camps to be closed, some of them continued to operate in secret and it was argued that it was therefore...