A.M.N v The Refugee Appeals Tribunal and Another

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice McDermott
Judgment Date03 Aug 2012
Neutral Citation[2012] IEHC 393

[2012] IEHC 393

THE HIGH COURT

[No. 1166 J.R./2010]
N (AM) v Refugee Appeals Tribunal & Min for Justice
JUDICIAL REVIEW
IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED) AND IN THE MATTER OF THE IMMIGRATION ACT 1999, AND IN THE MATTER OF THE ILLEGAL IMMIGRATION (TRAFFICKING) ACT 2000

BETWEEN

A. M. N.
APPLICANT

AND

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

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(1)

K (M R)[DRC] v REFUGEE APPEALS TRIBUNAL (LINEHAN) & MIN FOR JUSTICE UNREP CLARK 28.9.2010 2010/27/6636 2010 IEHC 367

A (T M A) v MIN FOR JUSTICE & ORS UNREP COOKE 15.1.2009 2009/2/434 2009 IEHC 23

B (O) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP HOGAN 22.9.2011 2011/5/1018 2011 IEHC 363

S (D v T) v MIN FOR JUSTICE & ORS 2008 3 IR 476

R (I) v MIN FOR JUSTICE & ORS UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

Immigration - Asylum application - Fear of persecution - Application refused by the Refugee Appeals Tribunal - Judicial review - Certiorari - Evidence - Assessment of credibility of applicant - Medical Report

Facts: The applicant entered Ireland on a false passport and claimed asylum for reasons of fear of persecution. In his application he claimed to have been arbitrarily arrested, detained and imprisoned in his country of origin, Eritrea, as a result of restrictions which operate in relation to freedom of religion. After considering the applicant's account of events the Tribunal concluded that they were 'simply not credible', resulting in the applicant being denied refugee status.

Leave to obtain judicial review was secured on the failure of the Tribunal to provide specific reasons for the rejection of a medical report which was 'overall consistent to highly consistent with the history' given by the applicant. Secondly, that the Tribunal had acted unreasonably or irrationally or disproportionately in reaching its conclusion as to the credibility of the claim in its assessment of the materials and evidence provided.

Held by McDermott J that it was necessary for the tribunal to provide reasons for its rejection of the medical report, as it significantly supported the contention that the applicant had sustained injuries in detention - an important part of the applicant's claim. RMK (DRC) v Refugee Appeals Tribunal & the Minister for Justice, Equality and Law Reform (Unreported, High Court, 28th September, 2010), TMAA v The Minister of Justice & Others [2009] IEHC 23 and B v Refugee Appeals Tribunal & Another [2011] IEHC 363 considered.

In regard to how issues of credibility should be assessed, the guiding principles of IR v the Minister for Justice, Equality and Law Reform (Unreported, High Court, 24th July, 2009) were applied and it was held that criticisms levelled at the Tribunal's decision on this ground were unwarranted. IR v the Minister for Justice, Equality and Law Reform applied.

The decision of the Tribunal was found to be fundamentally flawed as the medical report was discounted without consideration and no clear reasoning was provided in explanation. An order of certiorari was granted, quashing the Tribunal's decision and remitting the matter for consideration by a differently constituted Tribunal.

1

1. The applicant was granted leave to apply for judicial review by way of certiorari on the 8 th November, 2011 (Hogan J.) challenging the decision of the Refugee Appeals Tribunal ("the Tribunal") made on the 7 th July, 2010. That decision rejected the applicant's appeal against the Refugee Applications Commissioner's recommendation that he not be afforded a declaration that he was a refugee. The decision is challenged on the grounds that in assessing the applicant's claim for asylum the Tribunal erred in law and/or in fact and dealt with him in a manner which was in breach of principles of constitutional and natural justice and was, in all the circumstances, unreasonable and/or irrational. It was contended that these errors were such as to render the decision fundamentally flawed. The main focus of the challenge is on alleged deficiencies in the manner in which the credibility of the applicant was assessed and in particular how a medical report was considered by the Tribunal.

2. Background
2

2 2.1 The applicant was born in June, 1938 and is now aged 74. He is from Asmara in Eritrea and is an orthodox Christian. At the age of 45 he was married in 1983 to a fifteen year old girl. Ten years later they started a family and now have five daughters and a son. The applicant contends that his wife converted to the Pentecostal faith in 1999 and prayer meetings were held at their house two to three times per month. The Pentecostal church is persecuted by the government of Eritrea. On the 2 nd February, 2009, the applicant contends that police arrived at his home whilst a service was in progress. All members of his family were arrested. The police asked for the head of the household and he was arrested and taken to Ala Detention Centre. He alleged that he was held in an underground cell in solitary confinement for a week, after which several other prisoners were placed in the cell making it so overcrowded that there was barely room to lie down. The cell was dark, extremely hot and infested with ticks and lice. He alleged that throughout his time in Ala Prison he was regularly subjected to beatings from the guards who kicked and beat him with their firsts and rubber sticks. This caused swelling and wounds which bled profusely and were never treated. He alleged that "on several occasions they tied my wrists and ankles behind my back, holding them together with a wooden stick and I was left in this extremely painful position for up to an hour at a time". His detention continued for a period of seven months and fifteen days. On 14 th September, 2009, when detailed with a number of other prisoners to work outside the prison, the convoy in which he was travelling was ambushed, in the course of which he and other prisoners managed to escape.

3

3 2.2 The applicant claimed that he and another escapee made their way on foot to the Eritrean/Sudanese border and then to Kassala a city on the border with the Sudan. He met a truck driver from his own ethnic background who took him to Khartoum and then to a coffee shop frequented by Eritreans, He met a fellow Eritrean from his village who had escaped from a different prison. This person was able to source an address for his wife's brother and sister who resided in Canada. He stated that following a phone call to Canada he received $7,000.00 via a Somalian man who brought him the money. In the meantime he said he sought "the assistance of an agent", who secured a passport and arranged his passage to Ireland. He travelled through Dubai and Turkey and arrived in Ireland on the 29 th September, 2009. He then applied for asylum.

4

4 2.3 The applicant completed the usual questionnaire and an interview was conducted with him under s. 11 of the Refugee Act 1996 on the 23 rd October, 2009. On the 30 th December, 2009, the Refugee Applications Commissioner recommended that he should not be declared a refugee. The court is furnished with copies of this decision and the s. 13(1) report that had been prepared under the Refugee Act 1996.

5

5 2.4 That report summarised the country of origin information acknowledging that Eritrea was amongst one of the most repressive countries in the world. The authorities in Eritrea had severely restricted freedom of religion for unregistered groups. Members of these groups, including those practising the Pentecostal religion, had been harassed, arrested and arbitrarily detained in custody. The authorities had targeted members of these groups while they were holding religious services in their homes and there had been widespread reports that those arrested had been subjected to lengthy arbitrary detention and had been abused and tortured whilst in custody. It was accepted in the report that the general circumstances outlined by the applicant were "within the bounds of plausibility".

6

6 2.5 However, the report also examined the specific facts reported by the applicant. It stated that it did not appear plausible that the applicant would have been prepared to tolerate a situation where his life and liberty and those of his young children were being put at risk on a daily basis by his wife's insistence that she be allowed to practice her religion of which he disapproved. It was not thought to be credible that the applicant despite being aware that his neighbours knew that Pentecostal services were being conducted in his home, would have allowed these services to take place regularly in a climate where people caught conducting such services were being imprisoned and tortured.

7

7 2.6 The report also suggested that since the position of women in Eritrea was normally subordinate to that of men, it did not appear plausible that he had no choice but to allow his family to convert and conduct regular services in the house. The writer of the report also regarded the applicant's description of his escape from custody that led to his arrival in Ireland as "highly improbable". The applicant appealed against this recommendation to the Tribunal.

3. The Medical Report
2

2 3.1 A medical report dated the 26 th April, 2010, was prepared by Dr. Sabrina Vassia from the Centre for the Care of Survivors of Torture/SPIRASI in Dublin and submitted to the Tribunal in support of the applicant's appeal. In completing the report the doctor had available to her the same documentation that was submitted to the Tribunal. Her report states:-

"Numerous small white flat scars on his torso, both anteriorly and posteriorly. Mr. N stated that they appeared after his period in detention, but did not know why. Their appearance was strongly suggestive of...

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