T.M.A.A. v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Mr Justice Cooke
• Judgment Date: 15 January 2009
• Neutral Citation: [2009] IEHC 23
• Docket Number: [No.1257 JR/2006]
• Court: High Court
• Date: 15 January 2009

[2009] IEHC 23

THE HIGH COURT

[No.1257 JR/2006]

A (T M A) v Refugee Appeals Tribunal & Min for Justice

BETWEEN/

T.M.A.A.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S2

IMMIGRATION

Asylum

Appeal - Role of court in assessment of credibility - Whether cogent reasons for reaching adverse findings on credibility - Obligation to give reasons - Purpose of requirement for reasons - Physical evidence possibly linked to mistreatment - Failure to give adequate explanation for discounting of physical evidence -Finding that well founded fear of persecution not established - Assessment of credibility - Whether failure to consider medical and psychiatric evidence properly - Whether failure to give opportunity to explain discrepancies - Significance of scars - Post traumatic stress disorder -Refugee Act 1996 (No 17), s 2 - Certiorari granted (2006/1257JR - Cooke J - 15/1/2009) [2009] IEHC 23

T(MA) v Refugee Appeals Tribunal

Mr Justice Cooke

1 This is an application for judicial review brought by the applicant against a decision (the "Contested Decision") of the first named respondent ("The Tribunal") dated 25^th August, 2006, which rejected her appeal against the report and recommendation of the Refugee Appeals Commissioner that she not be declared a refugee. The Tribunal member concluded that the applicant had not established that she had a well founded fear of persecution as defined by s. 2 of the Refugee Act 1996, as amended (the "1996 Act").

2 The applicant's background as set out in this Contested Decision can be summarised as follows. She is a Sudanese national, a member of the Beni Amer tribe and was born in 1979. She claims that in Sudan she was a member of the Beja Congress, a political organization which seeks to vindicate the rights of her people. In January, 2005, while taking part in a demonstration march she was arrested by security forces and detained until 5^th February, 2005, during which trial she was tortured, beaten with a plastic hose and had cigarettes stubbed out on her legs. The applicant's brother, father-in-law and brother-in-law were killed in July, 2005, in an attack on their village by security forces.

3 The applicant is now in Ireland with her husband who is also claiming asylum having suffered arrest and detention at the hands of the Sudanese security forces. Since arriving in the State she has suffered two miscarriages and in 2007 gave birth to a son.

4 An appeal hearing against the report and recommendation of the Commissioner took place on 13^th July, 2006. Leave to bring the present application for judicial review was granted by this Court (Feeney J.) on 4^th July, 2008, limited to two grounds which can be stated as follows:-

5 (i) The Contested Decision contains an error of fact in that it states that the decision was reached having considered the evidence adduced at the appeal hearing but the Tribunal member did not consider all the evidence properly and in particular the medical and psychiatric reports.

6 (ii) The Tribunal member has drawn negative inferences as to credibility but failed to put or adequately put to the applicant matters on which he had doubts and failed to give her any adequate opportunity to explain or clarify the perceived discrepancies or implausibilities.

7 5. In essence, this case turns on the Tribunal member's assessment of the applicant's lack of credibility and on how that conclusion was reached and explained in this Contested Decision. In particular, it turns upon the significance, if any, to be attached to the scars visible on the applicant's legs and on the weight which was given or ought to have been given to those scars or lesions which are described in the SPIRASI report of Doctors Ciaran O'Flaherty and Patrick O'Sullivan as being "typical of" burns inflicted by a cigarette. The qualification "typical of" is defined in the Istanbul Protocol as being an appearance usually found with the type of trauma described although there are other possible causes.

8 6. In the scale of causation of this protocol, this designation is second highest. Reliance is also placed on the medical reports as to the applicant's mental state - she is described as exhibiting, inter alia, post-traumatic stress disorder and psychomotor retardation - as elements which should have been weighed in the balance when assessing the factors consistent or inconsistent with her account of detention and torture. It is to be noted that this evidence was not before the Commissioner and was introduced for the first time before the Tribunal.

9 7. Having heard the submissions on either side it is clear that this is indeed a borderline case. Both counsel have referred to the spectrum of these credibility cases and the issue is, on what side of the line in that spectrum does this case fall? The respondent's argument on the approach to credibility is completely correct of course. It is for the adjudicator, whether it be the Commissioner or the member of the Tribunal taking the decision, to make that assessment and the only role of this Court is to examine the way in which the assessment is made and the basis upon which the conclusion as to credibility or incredibility has been reached. It is not for this Court, obviously, to make its own assessment of the factors that weigh in the issue of credibility. The respondent also correctly points to the fact that in this Contested Decision there have been a number of important findings made on different factors which are taken into account in assessing credibility and, understandably, this Court in granting leave refused to grant...