Ndinda v Refugee Appeals Tribunal and Another

JurisdictionIreland
JudgeMr. Justice Herbert
Judgment Date16 November 2006
Neutral Citation[2006] IEHC 368
CourtHigh Court
Date16 November 2006

[2006] IEHC 368

THE HIGH COURT

RECORD NO. 68 J.R./2005
N (JJ) v REFUGEE APPEALS TRIBUNAL
JUDICIAL REVIEW
IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING)
ACT, 2000, THE REFUGEE ACT, 1996 (AS AMENDED)
AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO
APPLY FOR JUDICIAL REVIEW
BETWEEN/
JOSEPH JOHN NDINDA
APPLICANT

AND

DES ZAIDAN ACTING AS THE REFUGEE APPEALS TRIBUNAL
RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
FIRST NOTICE PARTY

AND

ATTORNEY GENERAL, IRELAND
SECOND NOTICE PARTY

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

REFUGEE ACT 1996

P & L & B v MIN FOR JUSTICE 2002 1 IR 164 2002 1 ILRM 38

R v SECRETARY OF STATE FOR THE HOME DEPT EX PARTE SIVAKUMARAN &ORS 1988 1 AER 193

REFUGEE ACT 1996 S(2)

Z v MIN JUSTICE 2002 2 ILRM 216

REFUGEE ACT 1996 S13(1)

SEKOUGAMARA v MIN FOR JUSTICE, REFUGEE APPEALS AUTHORITY, IRELAND & AG UNREP KELLY 26.7.2000

LELIMO v MIN FOR JUSTICE UNREP O'SULLIVAN 12.11/2003 2003/30/7198

OJELABI v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP PEART 28.2.2005 2005 48 10025 2005 IEHC 42

IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005 IEHC 416 2005/31/638

HATHAWAY LAW OF REFUGEE STATUS 1991

SYMES CASE LAW ON THE REFUGEE CONVENTION 2000

IMMIGRATION: asylum

The applicant sought to challenge the decision of the respondent by way of judicial review, refusing his application for asylum on grounds of lack of credibility as to his account of torture. The applicant contended inter alia that the

respondent had made errors of fact in failing to reference scars on his body displayed at the hearing to the respondent

and in failing to adequately consider the psychological ordeal suffered by the applicant.

Held by Herbert J., in refusing the application, that there was nothing in the medical reports that suggested that the

applicant was suffering from psychological problems. The respondent had not found credible evidence as to the applicant

having been tortured.

Reporter: E.F.

1

Mr. Justice Herbert delivered the 16th day of November, 2006.

2

In his decision, given on 8 th December, 2004, the Member of the Refugee Appeals Tribunal concluded as follows:-

"I have considerable hesitation is believing the whole story of the Applicant because of the inconsistencies and omissions between the information contained in the application for refugee status Questionnaire, the Interview notes and the evidence given by the Applicant at the oral hearing."

3

Having identified these "inconsistencies and omissions" in the following 2-4 pages of his decision, the Member of the Refugee Appeals Tribunal then continues:-

"For the reasons outlined above, I am not satisfied that the objective element for a well-founded fear as defined in the Geneva Convention as amended by the New York Protocol, and further outlined in the Refugee Act, 1996 (as amended) has been established by the Applicant. Similarly I cannot accept that he has established a well-founded fear of persecution owing to the reasons required by law. … I am also not satisfied that the Applicant met the standard of proof as set out in the Sivakumaran case. Equally, I am not satisfied that there is a reasonable degree of likelihood that he will be persecuted should he return to his country of origin. Accordingly, I must recommend that this appeal be refused."

4

The inconsistencies and omissions found by the Member of the Refugee Appeals Tribunal may be summarised as follows:

5

In the Questionnaire in his Interview and in evidence before the Refugee Appeals Tribunal, the Applicant claimed that he had been a member, though not an active one, of the Hutu, Frodebu Party, since 1980. County of origin information established that this political party was not founded until March, 1992.

6

The Applicant told the Refugee Appeals Tribunal that he had no contact with the agent who had brought him to this State after his arrival here. However, he stated at interview that he had heard from this agent who had told him that his daughter was suffering from A.I.D.S.

7

The Report of the Refugee Applications Commissioner noted that the Applicant did not have any evidence of identity, nationality or routing of travel to Ireland but had stated that he was expecting to obtain some such documents from the agent who had brought him to this State. The Applicant produced an identity card to the Refugee Appeals Tribunal which he claimed he had obtained from a friend who had brought it here. He was unable, however, to provide any meaningful information about this friend.

8

The Applicant claimed that in or about 5 th May, 2002, his first wife, his daughter and himself were beaten by the Genda and his daughter was raped. When asked by the Member of the Refugee Appeals Tribunal why he had fled from Burundi leaving his first wife and daughter, and his second wife and four other children in Burundi, the Applicant said that he did not have enough money to take them with him and that it was "him they were looking for". The Member of the Refugee Appeals Tribunal found these explanations, "unsatisfactory".

9

The Applicant claimed that he had been severely tortured, causing him serious injuries, no later than three days before he had fled Burundi. Though he claimed to have travelled to this State via Zambia, Congo, Paris and London, he could not satisfactorily explain why he had not sought asylum in any of these countries.

10

The Applicant stated that from 1972 to 1982 he had lived with his father in Angola and from 1982 to October, 2000 he had worked and lived, without any apparent problems, in Swaziland, visiting Burundi on occasions. The Member of the Refugee Appeals Tribunal considered it very suspicious that the Applicant had not returned to Swaziland.

11

The Applicant told the Authorised Officer at Interview that as far as he was aware his second wife and four children "lived in the family home". However, he told the Refugee Appeals Tribunal that they were in Burundi, "but not in the family home".

12

The Applicant claimed to have been detained and tortured for seven days at Muyinga Barracks, Bujumbura. However, in the history recorded in the S.P.I.R.A.S.I. Report, produced by him to the Refugee Appeals Tribunal, the torture is stated as having taken place at, "a Government House".

13

Having dealt with these matters, the Member of the Refugee Appeals Tribunal then continues as follows in his decision:-

"The Applicant submitted three medical reports. The first is from S.P.I.R.A.S.I. dated 29 th October, 2002, the second is from Dr. Ryder dated 3 rd February, 2003 and the third is from Dr. Ryder dated 3 rd June, 2004. I note the contents of these reports. Dr. Ryder indicated that the Applicant had a cyst on his back. The Applicant had informed the Doctor that this was the site where he was first injected during his time of torture. I note that Dr. Ryder indicated 'the cyst may be caused by that or it may be a sebaceous cyst'. I also note that Dr. Ryder indicated that a sperm count was performed which showed that the Applicant is infertile. The Doctor stated that this may be due to the alleged assault outlined by the Applicant. I have had the benefit of the Istanbul Protocol, dealing with the effective investigation and documentation of torture and other cruel, inhumane or degrading treatment or punishment submitted to the United Nations High Commissioner for Human Rights dated 9 th August, 1999. The Istanbul Protocol specifically addresses the interpretation of medical reports. It provides that the word consistent means 'the lesion could have been caused by the trauma described, but is not specific and there are many other possible causes.' The S.P.I.R.A.S.I. Report makes a reference to the Applicant being branded and burned with a soldering iron on his arms and legs. Dr. Ryder's history of this patient is silent as to this aspect of the claim. The author of the S.P.I.R.A.S.I. Report concluded that the marks on his legs and arms are consistent with superficial burns. Again, in this regard I have had the benefit of and I am mindful of the provisions of the Istanbul Protocol. The S.P.I.R.A.S.I. Report concluded by saying it is quite possible that the Applicant's prospects of having a family are seriously diminished by the injury to his genitalia during the torture."

14

By Order made 3 rd February, 2006, the Applicant was given leave to seek judicial review in the form of an Order of Certiorari quashing the decision of the Member of the Refugee Appeals Tribunal, - the respondent herein, - on the following grounds:-

15

(1) The respondent made a basic and fundamental error of fact in making no reference to the scars on the Applicant's body in his decision which scars he displayed at his oral hearing.

16

(2) The respondent made a basic and fundamental error of fact in failing to record in his decision the fact that the Applicant was tortured while in detention, the detailed methods of torture that were inflicted upon him which he outlined in detail at his oral hearing and are also set out in detail in his S.P.I.R.A.S.I. Medical Reports.

17

(3) The respondent erred in law in implying in his decision that he had to believe the whole story of the Applicant before he could grant him refugee status.

18

(4) The respondent erred in law in failing to consider adequately or at all the issue of the burden and standard of proof in respect of the Applicant who is suffering psychologically from his ordeal, is under the care of a consultant psychiatrist and undergoing ongoing counselling and made no allowance in this respect having regard to the fact that there were these medical reports before him and in holding that the burden of proof lay primarily with the Applicant.

19

As is apparent from the passage of the decision of the Member of the Refugee Appeals Tribunal which I...

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