MM v Refugee Appeals Tribunal and Another

CourtHigh Court
JudgeMs. Justice Faherty
Judgment Date10 March 2015
Neutral Citation[2015] IEHC 158
Date10 March 2015

[2015] IEHC 158


[No. 1313 J.R./2010]
M (M) v Refugee Appeals Tribunal & Min for Justice


M. M.



Judicial Review – Order of Certiorari – Persecution – Religion – Refugee Appeals Tribunal – Credibility – Sexual Abuse – Post Traumatic Stress Syndrome – Practice and Procedures – Evidence

Facts: This case was concerned with a telescoped hearing wherein the applicant sought judicial review by way of order of certiorari quashing the decision of the Refugee Appeals Tribunal dated 24th August 2010 and which was notified to the applicant by letter dated 21st September 2010. The applicant, an Egyptian national arrived in Ireland in October 2009 and applied for asylum on the 3rd November 2009. The applicant's claim for refugee status was that he feared persecution at the hands of both the Egyptian government and Sunni extremists in Egypt on grounds of religion and that he would be persecuted as a failed asylum seeker if he were to return or be returned to Egypt. It was submitted on behalf of the applicant that: (1) The Tribunal failed to conduct a rational analysis of the medical and psychological evidence which supported the applicant's claim and failed to explain on the basis of cogent and adequate reasons why, in the light of that medical and psychological evidence, the applicant's credibility was not accepted or why the medical evidence was rejected. It is submitted that the Tribunal Member erred in law in rejecting the report as not independent and erred in law and fact in failing to regard the report as independent evidence of torture; and (2) When holding against the applicant's credibility the fact that the applicant had not disclosed his sexual abuse in his Questionnaire or during his s.11 interview, the Tribunal failed to take into account the expert evidence contained in the SPIRASI report dated 2nd July 2010 which demonstrated the applicants sensitivity, reluctance to discuss the abuse, and his Post traumatic stress disorder.

Held by Justice Faherty in light of the available evidence and submissions presented that the Tribunal Member did not say that the report was not independent evidence. Accordingly, the applicant's argument on that issue was rejected. In respects of the evidence presented to the Tribunal, including the medical and psychological reports, it was reasoned that the Tribunal Member did not engage in any substantive manner with the contents of the reports. None of the medical findings was recited in the Decision. The Tribunal Member, it was further reasoned restricted his assessment to noting the physician's dependency on the applicant to ground his various conclusions. It was clear that the report's findings did not weigh with the decision maker in any regard to counter the negative credibility findings set out in the Decision. The Court was also of the opinion that the Tribunal did not engage with all the evidence before it. Justice Faherty stated that if sufficient weight had of been given and rejected, in all the circumstances, it was incumbent on the Tribunal Member to afford a more detailed consideration to the report and to provide cogent reasons for rejecting its probative value. While the Court did not accept that the Tribunal Member rejected the report as not being independent, its independent nature was nonetheless regarded as too readily disregarded: the report warranted more than a mere reference to Dr. Leonard having been dependent on the applicant to ground his conclusions. The Tribunal's failure in those regards lead inexorably to the conclusion that its decision was flawed to the extent that it could not be allowed to stand. Thus, the Court was satisfied that the applicant had made out a substantial case which warranted the granting of leave. As this was a "telescoped" hearing, Justice Faherty granted leave and made an order quashing the Decision. The matter was remanded back to the first named respondent for reconsideration before a different Tribunal Member.


JUDGMENT of Ms. Justice Faherty delivered on the 10th day of March 2015


1. This is a telescoped hearing wherein the applicant seeks judicial review by way of order of certiorari quashing the decision of the Refugee Appeals Tribunal dated 24 th August 2010 and which was notified to the applicant by letter dated 21 st September 2010.


2. The applicant is an Egyptian national born in 1960. He received primary, high school and university education and ultimately qualified as an accountant. Post qualification he worked in Saudi Arabia for 18 years followed by one year's unemployment in Egypt after which he emigrated to Kuwait in 1991 where he remained until late 2008. The applicant was married but is a widower since 1995. He has five children. The applicant was raised a Sunni Muslim but maintains that he converted to Shia Islam around the end of 2004 while working in Kuwait. In August 2008, he claimed to have been interrogated by the Kuwaiti authorities about his conversion to Shia'ism. He claimed that this interrogation was carried out at the behest of the Egyptian authorities who wished to find out which of their nationals had converted to that branch of Islam. He said he was asked to become a spy on his fellow Egyptian Shia but that he refused to do so. The applicant claims to have returned to Egypt in or about November 2008 to visit his family. He stayed in Egypt for approximately one month and returned to Kuwait in December 2008. He claims to have been detained by the security services at Kuwait Airport and while detained there claimed to have been insulted and ill treated. He was deported back to Egypt in December 2008. The applicant's claim is that he was then detained and abused (including alleged sexual abuse) by the Egyptian authorities in a series of detentions and claimed to have been detained four times in total. The applicant claims that apart from fearing persecution at the hands of the Egyptian authorities, he also fears persecution at the hands of Sunni Islam extremists in Egypt. He claimed that in August 2009, a member of one of those groups threatened to kill him because he was a Shia Muslim and claims that the individual who issued the threat would have known his religious affiliation from information obtained from the intelligence services.


3. The applicant applied for a visa to enter a number of countries. Ultimately his visa application to enter Ireland was successful and he arrived in the State on the 20 th October 2009. He then applied for asylum on the 3 rd November 2009. The applicant's claim for refugee status was that he feared persecution at the hands of both the Egyptian and Sunni extremists in Egypt on grounds of religion and that he would be persecuted as a failed asylum seeker if he were to return or be returned to Egypt. Procedural History


4. An ASY 1 form was completed on the 3 rd November 2009 and the Questionnaire was completed on the 12 th November 2009. The s. 11 interview took place on 26 November 2009. In a report dated 5 th January 2010, the Refugee Applications Commissioner refused his application for asylum and the applicant appealed this decision to the Refugee Appeals Tribunal on the 10 th February 2010. An oral hearing took place on 3 rd August 2010.


On 30 th July 2010, in advance of the oral hearing the applicant's solicitor submitted a SPIRASI report dated 2 nd July 2010 compiled by Dr. Ciaran Leonard who examined the applicant on 21 st May 2010. The report, which ran to some twelve pages, outlined in detail an account given by the applicant of the claimed circumstances in Kuwait and Egypt which led to his asylum application in Ireland, in particular the alleged ill-treatment by the Egyptian authorities while the applicant was detained. The examining physician reports, inter alia, as follows:-

"He said that from [ ] Airport he was taken by Al-Geeza Security to a building in [ ] City. He said that there followed ten days of imprisonment, interrogations and abuse. He alleged that he suffered the following list of abuses:"


i i. That he was placed in solitary confinement in a small cell measuring about 8 by 6 feet. He said that this cell contained no bed and no toilet facilities. He said there was no window but there was a small light. He said that in this cell he was fed once a day on bread and old cheese. He said he received a cup of water twice a day in a dirty mug.


ii ii. That was taken out of his cell on a daily basis for aggressive interrogations. He said that these interrogations included being spat at by the guards, being kicked and punched and occasionally hit by a stick and a flexible hose. He said the interrogations comprised three soldiers and one officer.


iii iii. That on a few occasions cold water was thrown over him during the interrogations.


iv iv. That they identified the surgical scar on his lower back and they targeted this for kicking and striking.


v v. That he was placed spread eagled against the wall as he was lashed from behind.


vi vi. That on one occasion three of the guards tried to sexually molest him. When he fought back they did not persist. He said that he was under the impression that if he had not resisted he would have suffered sodomy from them.


vii vii. That on more than one occasion a guard manually squeezed his penis to the point of ejection of blood. He said that he had never mentioned this abuse to anybody else before this interview.


At this stage of the interview [the applicant] became very upset [The applicant] said that upon his release from detention he had a problem withurination for some time including blood in the urine and difficulty at micturition."


5. The report also...

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