E (P)[Rwanda] v Refugee Appeals Tribunal & Min for Justice

JurisdictionIreland
CourtHigh Court
JudgeMS JUSTICE M. CLARK,
Judgment Date05 June 2013
Neutral Citation[2013] IEHC 253
Date05 June 2013

[2013] IEHC 253

THE HIGH COURT

Record No. 364 J.R./2009
E (P) [Rwanda] v Refugee Appeals Tribunal & Min for Justice
JUDICIAL REVIEW
Between:/
P. E. [RWANDA]
APPLICANT
-AND-
THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENTS
Between:/
PEACE EMERIGENO
APPLICANT
-AND-
THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENTS

REFUGEE ACT 1996 S13

T (R) v SECRETARY OF STATE FOR THE HOME DEPT UNREP 7.2.2008 2008 UKAIT 9

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

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

E (M) v REFUGEE APPEALS TRIBUNAL & ORS UNREP BIRMINGHAM 27.6.2008 2008/22/4746 2008 IEHC 192

L (J) & M (J) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP GILLIGAN 3.7.2008 2008/34/7384 2008 IEHC 254

A (TMA) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 15.1.2009 2009/2/434 2009 IEHC 23

K (RM) [DRC] v REFUGEE APPEALS TRIBUNAL (LINEHAN) & MIN FOR JUSTICE UNREP CLARK 28.9.2010 2010/27/6636 2010 IEHC 367

N (AM) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP MCDERMOTT 3.8.2012 2012/33/9613 2012 IEHC 393

REFUGEE ACT 1996 S11

A (S) [SOMALIA] v SECRETARY OF STATE FOR THE HOME DEPT 2007 IMM AR 236 2006 EWCA CIV 1302

Judicial Review – Asylum - Deportation - Medical evidence - Well-founded fear of persecution - Credibility - Inconsistencies - Proper consideration of evidence - Error of law

Facts: The applicant was a Rwandan national of Hutu ethnicity who made an application for asylum upon arrival in Ireland 2007. She claimed that her parents were arrested in 1995 on suspicion of participating in the crime of genocide in the country in 1994, with her mother only being released from detention in 2007 and her father still being held. She stated that from the time of her parents” arrest, the applicant and her siblings faced harassment from state authorities because of their ethnicity which was worsened because of their involvement in a public campaign for the release of their parents. It was further claimed that this harassment had manifested in her brother being shot dead by a government soldier in 1998 and an occasion of her being detained and tortured in 2007 as a consequence of her membership of a proscribed organisation known as Parti Démocratique de Renouveau. She left the country after this alleged incident, claiming that her application for asylum should be granted on the basis of a well founded fear of serious harm if returned to her native country.

The application before the Refugee Applications Commissioner was rejected on the basis that no medical evidence was forwarded that could establish whether she had been a victim of torture. A negative credibility finding was made on this basis. On appeal, two medical reports were submitted on her behalf, one from a clinical psychologist and one from a physician who worked for the SPIRASI organisation which specialised in examining persons who claimed torture injuries, with both indicating that her account of her experiences in Rwanda was consistent with the findings of an examination of her both physically and mentally. Despite this, the appeal was rejected on the basis of perceived inconsistencies in her account, including the fact that a US Department of State report indicated that long periods of detention and torture in the country were much less frequent than they had been in the mid 1990s. An application for judicial review was made against this decision on the basis that the medical evidence she presented was so compelling, that it should have outweighed the perceived inconsistencies outlined by the Tribunal.

Held by Clark J that it was established in case law that a decision-maker was obliged to have regard to documents which were capable of supporting a claim alleging past persecution in the form of torture, before deciding how much weight to attach to such evidence. Where the documents supported the claim, and appeared to be both credible and objective, the Tribunal would have been expected to deal specifically with this evidence in the final decision, and offer an explanation if little or no weight was ultimately attached to it. It was clear that on consideration of the medical reports offered by the applicant, they were undoubtedly credible and objective.

In relation to the perceived inconsistencies mentioned by the Tribunal, it was held that whilst some of them might appear unduly harsh, it could not be said that the Tribunal was not entitled to make such findings when the evidence was considered as a whole. The problem for the Tribunal was that this included the two medical reports. On consideration of the Tribunal”s decision, it appeared to the court that the corroborative potential of the medical evidence was rejected too quickly because of the negative credibility findings. The extent of the mental and physical damage noted in the medical reports appeared to far outweigh the minor nature of the perceived inconsistencies. It was therefore held that the decision did not adequately consider the medical reports before deciding how much evidential weight to attach, giving rise to an error of law.

Order of certiorari quashing the decision of the respondent Tribunal made. Matter remitted.

1

JUDGMENT OF MS JUSTICE M. CLARK, delivered on the 5th day of June 2013.

2

1. The applicant in this case seeks to challenge a decision of the Refugee Appeals Tribunal on the basis that the Tribunal erred in law in the manner in which certain medical reports were dealt with. The application for leave was treated as the application for judicial review by way of a telescoped hearing.

Background
3

2. The applicant is a young Hutu woman from Rwanda whose claim as presented to the asylum authorities is that in 1995 her parents, in common with many other Hutus, were arrested on suspicion of participation in the 1994 genocide. According to her narrative, her father was accused of murdering a young man, but when this man subsequently proved to be alive and unharmed her father's detention was continued as the authorities claimed that another investigation was pending. The applicant was the youngest child in a family of five and was cared for by her older siblings until her mother's eventual release in 2007 after twelve years detention without trial. Her father is still in detention. She and her siblings suffered harassment at the hands of the authorities because of their Hutu ethnicity, especially on their frequent visits to their parents in the detention centre. The family petitioned on many occasions to secure the release of their parents and these petitions brought them to the attention of the authorities. In 1998, her brother was shot dead by a government soldier for reasons associated with his parent's detention but the authorities neglected or refused to investigate his death. In a separate incident her cousin was beaten up and died before he could be treated in hospital. Her sisters were arrested and detained without trial and one is still missing. Family property was confiscated and the family's means were limited, so at age 14 in 2002 she joined the youth wing of the proscribed Parti Démocratique de Renouveau (P.D.R.) / Ubuyanja party as they promised to provide financial support for her schooling. Her role was to deliver messages and distribute anti-government leaflets to discourage young Hutus from going to fight in the conflict in neighbouring DRC where Tutsi and Hutu hostilities continue. Government soldiers frequently entered their home to loot and on one occasion in 2007 she was arrested after the authorities found PDR literature in her home which she then shared with her mother. She was accused of propagating genocidal ideology and taken to a named illegal detention camp where she was tortured. The extent of that torture and the manner in which she described her experiences is a key issue in this case.

4

3. Ms P.E. claims that if she is returned to Rwanda, she will face persecution because she is Hutu and furthermore, she will be suspected of genocide ideology and she may be re-arrested or killed.

5

4. At the time of her interview with an officer on behalf of the Refugee Applications Commissioner she had no medical evidence to support her claim of having been tortured. However, she submitted a number of documents which she claimed established her identity and the death of her brother and she also furnished copies of petitions written by her and her siblings in an attempt to secure her parents' release. She additionally provided country of origin information (COI) reports from a number of Hutu Rwandan organisations confirming the existence of and reliance by the Government on genocidal ideology legislation to control opposition to Government policies.

6

5. The credibility of the applicant's claim was rejected by the Commissioner whose s. 13 report observed that in the absence of medical evidence, it could not be proven or refuted that the applicant was a victim of physical or mental abuse. Her representatives, the Refugee Legal Service, sought to repair this deficiency by presenting two medical reports at her appeal hearing. These were from a clinical psychologist dated April 2008 and a report from November of the same year from Dr Bastible, a physician attached to SPIRASI.

7

6. The psychologist describes a young woman who was distressed, distrustful and withdrawn and unable to control feelings of despair in relation to traumatic loss. Her opinion was that the applicant's response to therapy and her hesitant disclosure of her traumatic past indicated that she had lived through extremely traumatising events.

8

7. Dr Bastible of the SPIRASI organisation is a specialist physician experienced in examining persons who...

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