E. (L. D.) v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 16 March 2010
• Neutral Citation: [2010] IEHC 139
• Date: 16 March 2010
• Court: High Court
• Docket Number: [No. 6 J.R./2008]

[2010] IEHC 139

THE HIGH COURT

[No. 6 J.R./2008]

E (L D) v Refugee Appeals Tribunal (Garvey)

JUDICIAL REVIEW

BETWEEN

L.D.E.

APPLICANT

AND

BEN GARVEY ACTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENT

AND

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

NOTICE PARTIES

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11B

CAMARA v MIN FOR JUSTICE & ORS UNREP KELLY 26.7.2000 2000/4/1247

KHAZADI v MIN FOR JUSTICE UNREP GILLIGAN 19.4.2007 (EX TEMPORE)

PAMBA v REFUGEE APPEALS TRIBUNAL & ANOR UNREP COOKE 19.5.2009 (EX TEMPORE)

IMMIGRATION

Asylum

Fear of persecution- Credibility - Inference as to credibility - Probative value to be attributed to medical reports - Substantial grounds - Whether applicant was personally believable - Whether any substantial ground raised which would justify granting leave - Whether procedure free of any material defect of law or fact - Camara v Minister for Justice (Unrep, HC, Kelly J, 26/7/2000) followed - Khazadi v Minister for Justice, Equality and Law Reform (Unrep, HC, Gilligan J, 19/4/2007) and Pamba v Refugee Appeals Tribunal (Unrep, HC, Cooke J, 19/5/2009) considered - Refugee Act 1996 (No 17), ss 6, 11B and 13 - Leave refused (2008/6JR - Cooke J - 16/3/2010) [2010] IEHC 139

E(LD) v Refugee Appeals Tribunal

Facts the applicant sought leave to seek judicial review of the decision of the respondent refusing his appeal against the recommendation of the Refugee Applications Commissioner that he not be recognised as a refugee on the grounds, inter alia, that the applicant's history of the events which led to his flight from Angola were consistent with the circumstances described in the country of origin information available to the respondent and that the respondent had erred by failing to make specific findings as to whether the detailed ingredients of the events described by the applicant did or did not occur.

Held by Mr. Justice Cooke in refusing leave to seek judicial review that the mere consistency of the story told by an applicant for asylum with circumstances or conditions described in country of origin information did not make the story true. A carefully crafted personal history which was largely invented could always be made consistent with known country of origin information. The numerous discrepancies, inconsistencies and impossibilities identified by the respondent in the history recounted by the applicant demonstrated that the respondent had concluded that the history provided by the applicant was not true. In cases where matters were put forth to ground an asylum claim which were entirely dependant upon the believability of the applicant, country of origin information could assist the decision maker if it indicated conditions in a country of origin inconsistent with the events described in which case the account would not be believed. The corollary did not follow, namely that events not inconsistent with country of origin information had to be believed.

That medical evidence could be of probative value in assessing credibility where it could be related to a specific cause or event.

Reporter: P.C.

Mr. Justice Cooke

1 The applicant seeks leave to apply for judicial review of an appeal decision by the Refugee Appeals Tribunal dated 21^st September, 2007 which affirmed a section 13 report and negative recommendation of the Refugee Applications Commissioner made on 6^th November, 2006. In the appeal decision the Tribunal member rejects the claim and reaches the same conclusion as the authorised officer in the section 13 report effectively upon grounds of lack of credibility in the account given by the applicant as his reason for fleeing his country of origin.

2 The basis upon which the applicant claimed asylum can be summarised as follows. He was born in Luanda, Angola in 1970 to parents who were, he says, from Cabinda. (Cabinda is an exclave province of Angola separated from it by part of the territory of the Democratic Republic of Congo and its status has been the subject of controversy and of separatist demands in recent years notably by the FLEC Movement - Front for the Liberation of the Enclave of Cabinda).

3 The applicant says that he had twelve years education in Luanda and continued to live and earn his living as a trader there until 2004. He said he had a wife or partner named M.J. who died of malaria according to a death certificate put in evidence. He claimed to have two dependent children in Angola although from another relationship.

4 The events said to form the basis of his fear of persecution if returned to Angola were as follows. His father, as a native of Cabinda, had been a supporter of FLEC. In 1998 after the death of the applicant's mother, the father finished work in Luanda and returned to live in Cabinda. There he became an active official of FLEC and meetings were held in his house.

5 The applicant remained living and working in Luanda until 2004 but then decided to move to Cabinda to be with his father as his father was the only person close to him.

6 Although he never attended the FLEC meetings held in the house or discussed the movement with his father, one day he criticised the Angolan authorities to some work colleagues and expressed the view that Cabinda would be better off if independent. Two days later the police came to his house, took him away, detained him, beat him badly and then transferred him to prison in Luanda where he remained for over a year. While in prison he claimed to have learned from a truck driver employed by his father that his father had been killed by the authorities. The driver bribed the prison authorities to obtain the applicant's release. Having sold the father's truck he used the money to flee via Namibia and South Africa to France and thence to Ireland with the help of an agent to whom he paid $6,500.

7 As mentioned, the Contested Decision turns entirely upon findings of lack of credibility in the applicant's above account of his personal history and reasons for leaving his country of origin. Compared with other Tribunal decisions, the s. 6 analysis of that claim in this instance is relatively detailed - it runs to over four pages - and identifies a series of specific points as being implausible. As a starting point, however, it accepts that persons who are perceived to be supporters of FLEC by the Angolan authorities can be detained and assaulted according to the country of origin information submitted to the Tribunal.

8 Although mentioned at the end of the s. 6 analysis, the Tribunal member makes two findings by reference to the statutory indices of credibility in s. 11B of the Refugee Act1996 (As Amended). He found that the applicant had not provided a full and true explanation as to how he had arrived in the State and also that his failure to seek asylum when travelling through South Africa and France was not consistent with an intention to flee from persecution with a view to obtaining refuge.

9 Amongst the particular points identified as being implausible are the following:

10 · The applicant's assertion that he left Luanda to be close to his father as he was not close to anyone else when he was at the time in a relationship and about to become a father;

11 · The fact that he would leave Luanda where he had a source of income and go to Cabinda when he found the situation there unacceptable and the subject of his complaints;

12 · The fact that he would move to Cabinda after 34 years of a peaceful life in Luanda and when he had continued to live and work there for six years following his father's departure;

13 · The fact that he disputed the contents of the death certificate in respect of his late partner;

14 · The fact that he was arrested and detained in his father's house in October, 2004 when his father, as a FLEC activist, was not questioned or his house searched;

15 · The fact that during a lengthy interrogation he was never questioned about FLEC documents found in the family home; and that he did not know anything about the documents being found until March 2006;

16 · The fact that although he had lived with his parents all his life, he was unable to say when they had originally left Cabinda;

17 · The fact that he would openly criticise the government's attitude to Cabindan fellow workers whom he claimed not to know very well when he had claimed to have warned his father of the dangers of political involvement.

18 The Tribunal member makes the...