K (S) (Ethiopia) v Refugee Appeals Tribunal & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 07 July 2011
• Neutral Citation: [2011] IEHC 301
• Court: High Court
• Date: 07 July 2011

[2011] IEHC 301

THE HIGH COURT

[No. 811 J.R./2009]

K (S) (Ethiopia) v Refugee Appeals Tribunal & Min for Justice

BETWEEN

SK (ETHIOPIA)

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

K (S G) v MIN FOR JUSTICE

STATE (KEEGAN) v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 26.11.2009 2009/47/11883

IMMIGRATION LAW

Asylum

Judicial review - Credibility - Country of origin information - Whether premises relied on factually sustainable - Whether first respondent addressed country of origin information - Whether negative credibility assessment reasonable - IR v MJELR [2009] IEHC 353 (Unrep, Cooke J, 24/7/2009) considered - Relief granted (2009/811JR - Hogan J - 7/7/2011) [2011] IEHC 301

K(S) v Refugee Appeals Tribunal

1 1. In these judicial review proceedings the applicant, Ms. K., seeks to quash a decision of the Refugee Appeal Tribunal of 30 ^th May, 2009, whereby the applicant's application for asylum status was rejected on credibility grounds. I myself granted the applicant leave pursuant to s, 5(2) of the Illegal Immigrants (Trafficking) Act 2000, on 1 ^st December, 2010.

2 2. The applicant is Ethiopian who is now aged in her early twenties. She contended that her father was a member of a political organisation called CUD and that he was abducted by police forces following protests against the outcome of disputed elections in 2005. Ms. K. says that her father was never seen again.

3 3. Ms. K. maintains that the schools were then in forment and that she organized protests against the regime. She says that she was one of about 20 students who was then arrested and brought to a police station. It is alleged that the students were detained for about 7 weeks. During this time, she was beaten with plastic sticks, given little food and questioned regularly.

4 4. She contends that while in detention she was beaten one day and that she bled through her nose and was rendered unconscious. She says that she was brought to the Raz Desta Hospital under armed guard. When the police authorities indicated that she would shortly have to return to jail, the applicant claims that she escaped from the hospital through a toilet window. She ran out of the hospital wearing hospital clothes, reached a public road and hailed a taxi to her godmother's house which was about twenty minutes away

5 5. She further contends that her godparents looked after her for a week at the request of her mother. Her godparents planned the journey together with an agent, Ato Nassar. The agent and her godfather brought her by car to Kenya where she stayed for one week. I pause here to observe that the Tribunal member stated that she had stayed for two days, but it is acknowledged that there was a translating error and that Ms. K. had always said one week. She then says that travelled with Mr. Nasser to Ireland via an unknown country and she arrived here on 20 ^th September, 2006. Ms. K. said that she could not apply for asylum in any third country because she was under the control of Mr. Nasser. As she was under 18 at the time, she had no passport or identity card.

The Tribunal's analysis

6 6. The Tribunal member accepted that the country of origin information demonstrated that CDU members were targeted in the manner alleged. He further accepted that the medical reports submitted were consistent "with [Ms. K.'s] account of events in Ethiopia", given that these reports documented her post-traumatic stress disorder and that her back pain was consistent with the beatings which she alleges. The Tribunal member nevertheless found against the applicant on credibility grounds.

7 7. I have already dealt with the jurisdiction of this Court to review errors of fact in judicial review proceedings in a recent judgment which, coincidentally, happens to be another Ethiopian case with a very similar name, SGK (Ethiopia) v. Minister for Justice, Equality and Law Reform, High Court, 5 ^th July, 2011. As is plain from that case (and many similar recent decisions), this Court can quash an administrative decision on this ground only where there have been serious errors of fact such that, taken cumulatively, they amount to a error of law or where the administrative body thereby effectively assumes a jurisdiction which it does not otherwise have.

8 8. Against this background, we may now consider the Tribunal's analysis so far it contained negative credibility assessments of the applicant's case. If these assessments were substantially accurate in substance, then providing that the reasoning is rational and cogent - in the sense that the inferences flow from the premises - then the Tribunal's decision is unimpeachable in law. In the present case, however, I have found that in at least two material respects, the inferences cannot fairly be drawn from the factual premises, so that this decision cannot be allowed to stand.

The applicant's medical condition

9 9. The first inconsistency identified by the Tribunal member was as follows:-

"There are, however, inconsistencies in relation to the applicant's own evidence in this regard. During her section 8 interview when making an application in November 2007 the applicant was asked if she had any physical disabilities and replied that she had a heart condition and was on medication. Two weeks later she completed a questionnaire which asked if she had any disability or medical condition relevant to her application and she replied 'not applicable to me.' Both of these forms were completed by the applicant with the assistance of a social worker. These reports are read in conjunction with the Istanbul Protocol."

10 10. It must, however, be recalled that the applicant had arrived in Ireland in September, 2006 when an unaccompanied minor form was filled in by HSE officials upon her arrival The first set of comments are filled out in hand as follows:-

"First language - Amharic. I have filled out as much as possible - no interpreter available. She states she was...