M.S.M. (Democratic Republic of Congo) v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Robert Eagar
• Judgment Date: 21 May 2015
• Neutral Citation: [2015] IEHC 330
• Court: High Court
• Date: 21 May 2015

[2015] IEHC 330

THE HIGH COURT

[No. 69 J.R/2012]

M (MS) [Democratic Republic of Congo] v Refugee Appeals Tribunal (Gallagher) & Ors

BETWEEN

M.S.M. (DEMOCRATIC REPUBLIC OF CONGO)

APPLICANT

AND

CONOR GALLAGHER, SITTING AS THE REFUGEE APPEALS TRIBUNAL,

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

RESPONDENTS

Asylum – Immigration & Nationality – Refugee Appeals Tribunal – Refusal of asylum claim – Fear of persecution – Whether applicant's evidence credible

Facts: The applicant sought an order of certiorari quashing the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner of denial of Refugee status to the applicant. The applicant contended that there was a real risk of persecution in the country of origin as she had already been a victim of rape, torture and inhuman treatment and feared more if returned to the country of origin.

Mr. Justice Robert Eagar granted an order of certiorari quashing the decision of the first named respondent and remitted the case to be heard by another member of the first named respondent. The Court held that the first named respondent had acted unreasonably and credibility findings made by it were contrary to the fair procedures of the law. The Court observed that while taking into account the credibility of the evidence of the applicant, the first named respondent must have considered the core claim of the applicant being a mistress of a well known political personality who was murdered being supportive of the indignation and harassment she went through in the country of origin. The Court was of the view that the first named respondent should have considered the medical reports of the applicant that corroborated the oppressive and brutal treatment she had been through in the country of the origin and done a rational analysis of it.

1 1. This is an application for judicial review of the Refugee Appeals Tribunal's affirmation of the recommendation of the Refugee Applications Commissioner refusing refugee status.

2 2. The relief sought in this case was an order of certiorari quashing the decision of the first named Respondent dated the 4 ^th day of January 2012 which affirms the previous recommendation of the Refugee Applications Commissioner that the Applicant should not be granted refugee status pursuant to s. 16(2)(a) of the Refugee Act 1996 (as amended) (hereinafter referred to as "the Act of 1996").

3 3. The grounds on which the relief was sought were limited to the following:-

1 ) The first named Respondent erred in law and in fact and breached the principles of fair procedures and natural and constitutional justice in reaching a conclusion that the Applicant's claim and credibility were undermined arising out of the fact that the Tribunal Member was of the view that she should/would have left more provisions for her children before she left them. This is speculation and was unrelated to the nexus of the Applicant's claim for refugee status. There was no legal basis for the said consideration and the decision as it relies on an assessment of credibility to form its basis, is invalid.

2 ) In its assessment of the Applicant's application for asylum, the first named Respondent failed to adhere to the principle of "shared burden of proof" pursuant to paragraph 196 of the UNHCR Handbook.

3 ) No forward looking test regarding the Applicant's application had been applied by the Refugee Appeals Tribunal.

4 ) The Tribunal makes specific reference to his having observed the demeanour of the Applicant and the assessment of her credibility. There is no reasoning given for the proposition that the presentation of her evidence by the Applicant was in some fashion lacking invisibly or audibly ascertainable features indicating credibility that the decision that there was no basis for the determination of the Applicant's credibility was in some way impacted upon by her demeanour at hearing before the Refugee Appeals Tribunal. The Refugee Appeals Tribunal further acted as an expert through an interpreter in circumstances where he was not so qualified to act as the Refugee Appeals Tribunal is not an expert in discerning the credibility of Applicants who communicate through interpreters.

5 ) The Refugee Appeals Tribunal consistently failed to examine the Applicants credibility in terms of her cultural background. The Refugee Appeals Tribunal insists that the Applicant's credibility mentioned through the optic of a European person with no regard/adequate regard to the cultural differences at play between the Applicant and the Tribunal Member.

4 4. The Applicant was born on the 5 ^th day of September, 1972 in the Democratic Republic of Congo. She was married but her husband died in December, 2003. She had children, both daughters and sons, aged between 16 years and 3 years all of whom were born in the Democratic Republic of Congo. The youngest child was the son of the Applicant and Daniel Boteti. Daniel Boteti died on the 7 ^th July, 2008. The Applicant was interviewed on the 3 ^rd March, 2011. The interview under s. 11 of the Act of 1996 was conducted in Lingala.

5 5. The report pursuant to s. 13(1) of the Act of 1996 contained the recommendation of the Refugee Applications Commissioner which was that the Applicant had not established a well-founded fear of persecution. A notice of appeal was lodged and in the notice of appeal it was indicated that the language that the interpreter required for the first named Respondent was French. Subsequently on the 7 ^th September, 2011 a SPIRASI Medical Legal Report together with photographs was forwarded to the first named Respondent by the solicitor's on behalf of the Applicant. An appeal before the first named Respondent was heard on the 6 ^th October, 2011 and in a long analysis of the claim affirmed the recommendation of the Refugee Applications Commissioner.

Evidence before the first named respondent

6 6. The second named Respondent noted the following: the Applicant indicated that she was 38 years of age and had arrived in the State in 2010, she travelled via Congo Brazzaville and France. She applied for asylum immediately after arriving in the State.

7 7. She was asked why she left the Congo and she stated she feared rape, torture, aggression and inhuman treatment. She was asked when her problems began and she said 2008 upon the murder of Daniel Boteti. She was his mistress and the first time they met in 2005 was at a burial. The second time she met him she asked him if she could join his party. Daniel Boteti was murdered by the Democratic Republic of Congo's Republican Guard. She was asked what his role was in the Movement for the Liberation of the Congo (MLC) and she said he was a member and deputy for Kinshasa City. She said she was given a position in the women's organisation to mobilise and organise women through meeting people and telling them to come over. She was asked who she resided with when she met him and she said she was married at the time she met him but that her husband had died in 2003. She has 6 children, one of whom was with Daniel Boteti. She was asked if she lived with him and she said initially no before saying yes, that they lived together in the same house in 2006. She clarified that they did not live together all of the time as he was married with 2 children and that she was scared of his wife but had not met her. She stated that he stayed with her three days a week and it was openly known that they were in a relationship. She stated "In Africa this does not cause a problem many politicians have more than one women". The youngest child was born on the 28 ^th November, 2006 and Daniel Boteti was named as the father on the birth certificate. She was asked if there was a way to get the birth certificate and she said that in Africa you had to ask a friend and that she could ask a friend to obtain it from the hospital. She stated that she left the place in which she lived with Daniel Boteti in 2008. In that year she went to a march and was arrested by the military on the 8 ^th July, 2008. The military suggested to her that Daniel Boteti had given her a document which she denied. She stated that he had left some documents with her and said that she was not to give them to anyone, they would kill all of them if they got them. After she insisted that she did not have them, she was beaten and threatened with a knife. She stated she was beaten and raped and she was threatened not to go to the march. This was after the murder of Daniel Boteti by the Republican Guards. She was then released and was then met by an MLC Representative who brought her for medical treatment.

8 8. When asked about her children and family, she said they were told to leave the house and they stayed with a friend of the Applicants. Asked if she had any other problems after this, she said on the 10 ^th April, 2010 that she went on another march after a big meeting in preparation of the trial of Bemba (who is a leader in opposition to President Kabila). At the end of the meeting, the military cars arrived and they were beaten. She collapsed and fell down and found herself in the military car with nose broken and a pain in her forehead. She was taken to jail and was raped again by guards. She was then taken to prison. She was beaten in the morning and afternoon and told that if she did not accept sleeping with them she would be beaten again. She spent three and half months in prison. Asked what happened to enable her to leave she stated that one night she saw a guard. She thought he was going to sleep with her but he brought her a uniform and asked her to follow him and there were three people in the jeep. In her mind they were killing people. They took her to a house, there was no light there and they told her to get into a car. She...