E (M) v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: MR. JUSTICE BIRMINGHAM
• Judgment Date: 27 June 2008
• Neutral Citation: [2008] IEHC 192
• Court: High Court
• Date: 27 June 2008

E (M) v Refugee Appeals Tribunal & Ors

BETWEEN

M. E.

APPLICANT

AND

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

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

[2008] IEHC 192

[156 JR/2006]

THE HIGH COURT

IMMIGRATION

Asylum

Judicial review - Application for leave - Extension of time - Fundamental human rights - Anxious scrutiny - Medical reports - Country of origin information - Credibility - Conjecture - Risk of persecution - Whether evidence of probative value - O'Keeffe v An Bord Pleanála [1993] 1 IR 39, AO & DL v Minister for Justice [2003] 1 IR 1, Gashi v Minister for Justice [2004] IEHC 394, (Unrep, Clarke J, 3/12/2004), Gritto v Minister for Justice [2004] IEHC 119, (Unrep, Laffoy J, 27/5/2004), COI v Minister for Justice [2006] IEHC 136, [2007] 1 IR 718, Idiakheua v Minister for Justice [2005] IEHC 150, (Unrep, Clarke J, 10/5/2005), Ogunyemi v RAT [2006] IEHC 203, (Unrep, McGovern J, 30/6/2006), Vilvarajah v UK (1992) 14 EHRR 248 and Da Silveira v RAT [2004] IEHC 436, (Unrep, Peart J, 9/7/2004) considered - Time extended but relief refused (2006/156JR - Birmingham J - 27/6/2008) [2008] IEHC 192

E(M) v Refugee Appeals Tribunal

Facts: The applicant, a national of Sierre Leone alleged that an army had taken her to a camp and raped and beaten her. The applicant alleged that the Tribunals analysis of the medical report, country of origin information and speculation in respect thereof were grounds to impugn the decision. The Tribunal had concluded that the medical report was of no probative value.

Held by Birmingham J. that the Tribunal member approached the issues with caution and the Tribunal had reached conclusions that were open to her to reach. Leave would be refused. The probative value of evidence was a matter for the Tribunal. The criticisms alleged had not been made out.

Reporter: E.F.

REFUGEE ACT 1996

O (A) & L (D) v MIN FOR JUSTICE 2003 1 IR 1

O'KEEFE v BORD PLEANALA 1993 1 IR 39

GRITTO & ORS v MIN FOR JUSTICE UNREP LAFFOY 27.5.2004 2004/20/4532

GASHI v MIN FOR JUSTICE & ORS UNREP CLARKE 3.12.2004 2004/19/4277

IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 10.5.2005 2005/31/6357

ITAIRE v MIN FOR JUSTICE 2007 1 IR 718

OGUNYEMI v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP MCGOVERN 30.6.2006 2006/46/9852

VILVARAJAH v UNITED KINGDOM 1992 14 EHRR 248

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

S (DVT) v MIN FOR JUSTICE & ORS UNREP EDWARDS 4.7.2007 2007/54/11621

DA SILVEIRA v REFUGEE APPEALS TRIBUNAL (HURLEY) & MIN FOR JUSTICE UNREP PEART 9.7.2004 2005/15/3102

1 This is an application for leave to apply for judicial review of the decision of the Refugee Appeals Tribunal ("RAT") dated 22 ^nd November, 2005, which affirmed the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicant not be declared a refugee within the meaning of the Refugee Act 1996, as amended.

Factual Background

2 The applicant is a national of Sierra Leone. She is of Krio ethnicity, and is a Roman Catholic. She is now 27 years old, having been born on 16 ^th June, 1981. She speaks English and Krio. She applied for asylum in this State on 18 ^th July, 2005 on the basis of her claimed fear of persecution owing to the political opinions that she says were imputed to her. Her application was based on the following circumstances. The applicant says that she lived with her parents and brother near Makeni in Sierra Leone. She claims that in 2005, the Revolutionary United Front ("RUF"), a rebel army, visited their home on several occasions, attempting to forcibly recruit her father, who resisted their attempts. She says that on 5 ^th June, 2005, members of the RUF attacked their home and, owing to his refusal to join the RUF, beat her father to death. She says that on this day, she and her brother were abducted and taken to separate places.

3 The applicant says that the RUF took her to a small camp, where she claims to have been raped by three soldiers and beaten, over a five-day period. Of note is that she has produced a medical report compiled by a General Practitioner based in Cork that she says supports her claim that she was beaten. One of the primary bases for the applicant's challenge to the Tribunal Member's decision concerns her treatment of this report. I will, therefore, return to this issue.

4 The applicant says that after five days at the camp, the leader of the camp took her to an isolated spot with what she presumed was the intention to rape or kill her. She claims that she escaped by kicking him in the groin and running off. She says that she arrived at a road and got a lift to an area some distance from Makeni in which her mother's friend lived, and that this friend arranged for her to leave Sierra Leone. She says that with his help, she travelled by night to a port, from which she departed by ship for Ireland on 12 ^th June, 2005. She says that the ship stopped for a time in Liberia, but she did not disembark.

5 The applicant says that prior to her departure from Sierra Leone, photographs were taken of the injuries that she claims to have sustained in the camp. The photographs that the applicant has produced show a bloodied lip, which the Tribunal Member recorded. There are no photographs of the applicant's back or the injuries that she claims to have sustained in that area.

6 The applicant arrived in this State on 18 ^th July, 2005 and applied for asylum in the ordinary way. It is noteworthy that the applicant was pregnant upon arrival in Ireland, she says as a result of the rapes suffered at the RUF camp, and a baby was indeed born in February 2006. ORAC issued a negative determination in respect of the applicant, and she exercised her right of appeal to the RAT. An oral hearing took place on 27 ^th October, 2005. The RAT, in a decision dated 22 ^nd November, 2005, rejected the applicant's appeal.

Extension of Time

7 The applicant seeks an extension of time. There was a lapse of several weeks between the expiry of 14 days after the RAT decision and the issue of the present proceedings. As an explanation for this delay, counsel on behalf of the applicant points out that in the intervening period, which included the Christmas holidays, the applicant was awaiting legal advice from the Refugee Legal Service ("RLS"), which was not forthcoming until mid-January 2006. The applicant thereafter engaged the services of her present solicitor, who proceeded with due expedition to obtain the applicant's file and to issue the present proceedings.

8 While one can identify a day here and a day there where the applicant might have acted more speedily, I am satisfied that she was anxious to institute proceedings from the time when she received the RAT decision. Thereafter she moved with reasonable expedition and certainly, once she engaged the services of her current solicitor, matters moved with very considerable expedition indeed. In the circumstances, I am satisfied that there are good and sufficient reasons for extending time, and accordingly I do so.

The RAT Decision

9 As noted above, the RAT rejected the applicant's appeal in a decision dated 22 ^nd November, 2005, which decision is the subject of the present challenge. The question of the assessment of credibility was central to the decision of the Tribunal Member. In that regard, the Tribunal Member identified a number of elements which led her to conclude that the applicant's claims were not credible.

10 So, the fact that the applicant did not known whether the house to which she escaped was north, south, east or west from her home, nor could she name the district in which the house in question was located, nor could she identify any district it was near, was seen as raising credibility issues. The Tribunal Member also stated that she found it incredible that the applicant could not explain satisfactorily how she knew that the driver from whom she hitched a lift was going in the direction of her mother's friend's house.

11 The applicant's account of not knowing to what port she travelled was likewise regarded as incredible. In both instances, the Tribunal Member in forming the view that she did would seem to have been influenced by the applicant's educational background, her profile and her competence at the hearing in explaining the case.

12 The Tribunal Member was also influenced by the fact that the applicant could not describe the countryside between her home district and the capital. That she could not say whether the ship on which she travelled docked anywhere other than Liberia, and that she could not say at what port she disembarked in Ireland, even though English was her mother-tongue, was also found incredible.

13 Again, the applicant's account of destroying the documentation she had in her possession following her arrival in Ireland was found to be implausible. Also, in relation to her entry into this State, the Tribunal Member was influenced by what was seen as a material inconsistency as to how entry to the State was achieved. In the course of the ORAC interview, the applicant said that she did not go through Immigration at all, while at the RAT oral hearing she said that she had presented the documentation in her possession to Immigration at the port. It may be noted that this discrepancy does indeed exist.

14 Still focusing on the question of documents, the fact that the applicant said that she could not obtain documentation since her arrival in Ireland because she was not in contact with her mother, and could not write to her mother's friend as she did not know the address, was rejected.

15 The Tribunal Member additionally considered it incredible that the applicant would not know if money...