N. R M. [DRC] v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: MS JUSTICE M. H. CLARK,
• Judgment Date: 20 January 2014
• Neutral Citation: [2014] IEHC 120
• Court: High Court
• Date: 20 January 2014

[2014] IEHC 120

THE HIGH COURT

Record No. 1179 J.R./2009

M (NR) [DRC] v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

Between:

N. R. M. [DRC]

APPLICANT

-AND-

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

RESPONDENTS

REFUGEE ACT 1996 S8

REFUGEE ACT 1996 S13

D (O S) (AN INFANT) & ORS v MIN FOR JUSTICE & ORS UNUREP CLARK 30.7.2010 2010/10/2304 2010 IEHC 390

C (R) & M (G G) [ZIMBABWE] v REFUGEE APPLICATIONS CMSR & MIN FOR JUSTICE UNREP 15.7.2010 2010/6/1485 2010 IEHC 490

SIVSIVADZE & ORS v MIN FOR JUSTICE & ORS UNREP KEARNS 21.6.2012 2012 IEHC 244

G (A) v REFUGEE APPEALS TRIBUNAL (LINEHAN) & MIN FOR JUSTICE UNREP MCDERMOTT 25.4.2013 2013 IEHC 247

REFUGEE ACT 1996 S11C

REFUGEE ACT 1996 S11B(I)

REFUGEE ACT 1996 S11B(F)

REFUGEE ACT 1996 S20(2)

M (N) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (ZAIDEN) UNREP MCGOVERN 7.5.2008 2008/38/8327 2008 IEHC 130

K (R M) [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 REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 15.1.2009 2009/2/434 2009 IEHC 23

Judicial Review – Refugee Appeals Tribunal Decision – Medical evidence – Post Traumatic Stress Disorder – Asylum assessment - Creditability Findings

Facts: This decision related to the treatment of medical evidence by the Refugee Appeals Tribunal in circumstances where the applicant”s claim has been rejected as implausible, inconsistent and not credible. The applicant appealed against the creditability findings of the Tribunal and asserted that the Tribunal decision ought to have been quashed by an order of certiorari as the Tribunal Member failed to properly diagnose post-traumatic stress disorder (PTSD). The Respondent Tribunal contemplated numerous factors in claim for asylum, one of which was the applicant”s honesty. She lied to asylum authorities on previous occasions and cast doubt on her claims that she was persecuted to the extent she portrays. Despite the lack of an in depth review of the medical report containing the PTSD diagnosis, which might have affected her asylum claim, the tribunal declared it sufficient to only refer to the diagnosis and in light of the numerous credibility issues highlighted it was not necessary to refer to such a medical report. Deliberating on the facts was Clark J. in the High Court.

Held: After considering all the factors that would affect the applicant”s asylum assessment Clark J. acknowledged that the tribunal acted reasonably and did not error in judgment when merely taking note of the medical report, that was all which was required. After deeming the applicant”s story of detention, rape and torture as contrived and having no substantial evidence which indicates that she was persecuted to the extent she explains, Clark J decided that the Tribunal had ruled correctly and that no order of certiorari should be ordered to quash the original decision of the Tribunal.

1 This decision relates to the treatment of medical evidence by the Refugee Appeals Tribunal in circumstances where the applicantapos;s claim has been rejected as implausible, inconsistent and not credible. The applicant argued before this Court that notwithstanding the credibility findings which are not challenged, the Tribunal decision ought to be quashed by an order of certiorari as the Tribunal Member failed to properly consider a SPIRASI medical report which diagnosed post-traumatic stress disorder (PTSD) and also failed to explain why that evidence was not given any or appropriate weight.

2 This argument was complicated by the fact that at a late stage in the proceedings the respondents brought a motion to dismiss the proceedings on the basis of the applicantapos;s lack of candour and good faith or alternatively as an abuse of process as information recently received from the United Kingdom Border Agency (UKBA) established that the applicant had been issued with a six month multi-visit visa for the United Kingdom not long before she claimed asylum in this State. UKBA records show that she entered the United Kingdom (UK) on the 3 ^rd February, 2008, when her fingerprints were matched to her visa. She travelled on a passport issued to her in Kinshasa in 2007 and there was no evidence that she had subsequently returned to the Democratic Republic of the Congo (DRC) from the UK nor did she claim asylum there.

3 Obviously, if she was in the UK from the 3 ^rd February, 2008, the later part of her claim which relates to events in March, 2008 could not have happened. In an affidavit sworn by the applicant, she accepted that she was in the UK for the purposes of selling Congolese dried fish and gold jewellery and buying clothes for subsequent sale in Kinshasa markets. She says she entered the UK twice on her visa - first for three weeks November, 2007 and then for two weeks in February, 2008. She admitted lying about never having held a passport and saying she had never been out of the DRC. She claimed that she returned to the DRC in iate February, 2008 but as her passport was stolen after her return she was unable to establish the truth of that averment. She claimed in her affidavit that she had no reason to leave the DRC earlier or to seek asylum when she was in the UK as she was happy and successful in her work as a trader, was making a good income and had no problems. Those averments wiil be set against her asylum claim in due course.

4 The Court agreed to hear both applications together and to consider the motion to dismiss after the assessment of the claim for judicial review where the parties had agreed to a telescoped hearing. At the hearing, the twenty-eight general and repetitive grounds originally claimed were reduced to one sole challenge, namely the inadequate treatment of the findings of PTSD made in the SPIRASI medical report. Mr Mark de Blacam S.C. with Mr Karl Monahan B.L. appeared for the applicant and Ms Fiona Oapos;Suilivan B.L. appeared for the respondent Tribunal.

Background

5 When the applicant applied for asylum on the 27 ^th March, 2008, she said she had left Kinshasa two days earlier and travelled to Ireland via Congo Brazzaville, Morocco and Turkey using a Portuguese passport provided by a facilitator and that she had never held a passport and had never been outside of the DRC. She claimed that she was born in 1976 in Kinshasa and that she feared persecution at the hands of the DRC government by reason of her religion and political opinion, In relation to the religious aspect of her claim she said she was a long-standing member of Pastor Kutinoapos;s É glise Armée de Victoire and politically she said she was a member of Jean Pierre Bembaapos;s Movement for the Liberation of Congo (MLC).

6 Her fear of persecution on both grounds was complexly woven together and in the view of the Court her story consisted of three parts. Her problems began when Pastor Kutino was arrested on the 14 ^th May, 2006. She said she hid in his church in an office while soldiers arrested him. She was discovered by the soldiers who then tried to rape her and in attempting to do so one of them tried to remove her trousers with a knife but he stabbed her in the stomach and she lost consciousness. She spent three months in hospital in Kinshasa, initially for treatment and then to undergo two operations necessitated by iatrogenic medical complications. Significant abdominal scarring was objectively present and referred to in a number of medical reports and photographs furnished to the asylum authorities. By January, 2007 she had fully recovered and returned to her voluntary work with her church where she visited hospitals and prisons and distributed food as part of a social group in the Church, and also to her main occupation as a trader in the market.

7 A separate aspect of her claim involved her membership of the MLC which she joined in 2006. She sought to advance their cause by recruiting members while at her work in the market. This activity caused her to be assaulted on a number of occasions and she was even abducted for short periods. During such abductions she was warned to give up her support for the MLC or face death. All of these threats and assaults occurred in 2007. When she began to fear for her life she cut back on her activities. 1

8 The third issue arose on the 12 ^th March, 2008 when two government agents came to her home and offered to pay her $20,000 to poison Pastor Kutino who was in jail. She understood that if she refused she would be killed so she accepted part payment of $10,000 together with the small vial of poison which the men had brought with them. She immediately informed the Pastorapos;s wife of what had happened and they went to the prison to speak to Pastor Kutino himself. He advised the applicant to leave the country immediately. She organised her documents and stayed with a friend that night in anticipation of her flight to Congo-Brazzaville. On the same night - the 14 ^th March, 2008 - she was arrested at her friendapos;s house by government agents who detained her for five days. During this time she was beaten, humiliated, tortured and repeatedly raped. A prison guard eventually recognised her surname as he had worked for the state security service with her father. He agreed to help her to escape if she would pay him a substantial sum of money. She gave him $8,000 from the money she received to poison the Pastor and paid a further $4,500 to a man introduced to her by the guard. This man then brought her to Ireland using his wifeapos;s Portuguese passport but the man took back this passport from her after they went through Dublin airport. She obtained the money from her bag of documents left at her friendapos;s house before she was arrested on the 18 ^th March, which included her savings / capital from her...