A (v F A) v Min for Justice & Refugee Appeals Tribunal

JurisdictionIreland
JudgeMr. Justice Birmingham
Judgment Date20 April 2010
Neutral Citation[2010] IEHC 117
CourtHigh Court
Date20 April 2010

[2010] IEHC 117

THE HIGH COURT

[No. 15 J.R./2008]
A (V F A) v Min for Justice & Refugee Appeals Tribunal
V. F. A. A.
APPLICANT

AND

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

N (AZ) v REFUGEE APPEALS TRIBUNAL (GARVEY) & MIN FOR JUSTICE UNREP CLARK 7.10.2009 2009 IEHC 432

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009 IEHC 353

IMMIGRATION

Asylum

Credibility - Understatement of supportive elements - Irreconcilable divergence - Whether matters of real importance addressed - Whether major errors of fact - Injury in riot - Description injury deliberate - Decision suggestive of misfortunate injury - Interpretation of Spirasi report - Choice of less favourable version - Whether appreciation of essence of complaint - Omission of parts of narrrative - Significance of omission in light of finding abusive treatment isolated incident - Whether finding conflicting accounts justified -Individual issues not of major significance - Issues in isolation not justifying reliefs - Whether justice dictated cumulative effect required rehearing - Authenticity of arrest warrant - Freedom of political party - Finding in conflict with country of origin information - Importance not deconstructing decision - Nasser v Refugee Appeal Tribunal [2009] IEHC 432 (Unrep, Clark, 7/10/2009) considered - R(I) v Minister for Justice, Equality and Law Reform [2009] IEHC 353 (Unrep, Cooke J, 24/7/3009) approved - Certiorari granted (2008/15JR - Birmingham J, 20/4/2010) [2010] IEHC 117

A(VFA) v Minister for Justice Equality and Law Reform

1

EX -TEMPORE Judgment of Mr. Justice Birmingham delivered the 20th day of April, 2010

2

1. By order of Edwards J. dated 6 th November 2009 the applicant was granted leave to apply for judicial review. In granting leave Edwards J. delivered a very full and very careful written judgment. In the course of the judgment he set out in detail the applicant's background as set out in the tribunal member' decision over pp. 2, 3 and 4 of his judgment and set out in full the tribunal members analysis of the applicant's claim at pp. 4 to 10 of the judgment. I do not propose to repeat the exercise but instead will refer to some aspects of the tribunal decision and comment on them in turn. It is said on behalf of the applicant that matters of real importance were not addressed or considered at all, that in relation to other aspects that there were major errors of fact, that the consideration of issues of fact was tainted by the failure to have regard to country of origin information and in some cases by a misunderstanding or misrepresentation of the county of origin information and it is said that the tribunal member engaged in impermissible speculation, notwithstanding adverting specifically to the fact that speculation was impermissible.

The tribunal decision
Extract
3

2. "She did not have a specific post in either of these parties [/Social Democratic Front/SDF and Southern Cameron National Council/SCNC and one of her medical reports indicates that her involvement was at a relatively low level".

4

Comment: The reference to the medical report is accurate as far as it goes and certainly the case has never been made that she was a leading figure in the organisations with which she says she had been involved. However, a more finely balanced assessment of the nature of her involvement might have seen a reference to a document submitted or purportedly submitted by SCNC, which, even allowing for its polemical language, suggests that the applicant was a strong and courageous member and indeed to the fact that on the applicant's own account she suffered as a result of her political activities on a number of occasions over an entire decade.

Extract
5

3. "In 1997… She claims the police intercepted their group and intimidated them".

6

Comment: It is, first of all appropriate to refer to the manner in which the tribunal member dealt with this aspect when he came to consider the significance of the event. He dealt with the issue in these terms:-

"She stated in 1997 that a riot broke [out] when the police intercepted a rally and she received a blow to the head".

7

This summary might suggest that the blow, was almost a matter of chance, and indeed, in the nature of things persons involved or even in the vicinity of a riot, wherever it occurs may find themselves at risk of being struck whether accidentally or deliberately by one of those involved. However, the account of this incident recited in the medical report to which the tribunal member makes reference in another context was in these terms.

"She was forced by the police to sit down on the public road and struck on the back of the head".

8

The interview notes record that the party members were asked to sit on stones, that there was a struggle which ended in a riot and in the course of this, they were hit with guns and that she in particular was hit by a gun.

9

3. The tribunal members treatment of this issue is suggestive of a degree of chance or misfortune or at the very least that it was one of those things that was to be expected but the account as set out in the medical report indicates that there was a deliberate assault at a time when the applicant was helpless, having been made sit on the ground.

10

4. The difference in tone and emphasis which I discern might not seem enormous, and certainly if taken in isolation would be of little significance, particularly given that the events in question were far removed in time from the alleged events that precipitated her departure to Ireland.

Extract
11

4. "In 2003 she claims she was at a gathering of twenty to thirty people who were walking and singing on the day of the funeral of the chairman of the SCNC. They were met by local police who antagonised them and the crowd reacted. The police arrested the applicant and others and forced them to walk to the local police station which was seven miles away. They were released and warned to discontinue their membership of the SCNC as it was an illegal organisation".

12

Comment: In the analysis section the refugee appeals tribunal member deals with it in these terms:

"She and other members of SCNC were going to a funeral, but on the way they were detained for a number of hours during which time the applicant was subjected to pressure to undertake a physical task and after encountering this ordeal, she was allowed to go free. The applicant said it was an SCNC event. As the party is illegal in Cameroon, the police were within their rights to intercept it. She told the tribunal that a quarrel arose when the crowd were told they were going to be arrested. While the overreaction of the police cannot be justified, they nonetheless released the applicant and her colleagues after a number of hours. The tribunal is satisfied that this was not persecution".

13

5. In fact if looks at the account given by the applicant it is that she, and I think also her companions were obliged to engage in "pick a pin" a procedure which involves balancing on one foot while reaching downwards with one hand and says that when she was no longer able for this that she was beaten.

14

6. The incident as described by the applicant involves a degree of deliberation and indeed humiliation and sadism on the part of the police which does not really emerge, either from the tribunal members narrative or his assessment.

15

7. As with the treatment of the 1997 incident, in isolation this would be of marginal consequence, if any, but when these two matters are taken together, and given that each involves an under statement of the claim being put forward by the applicant, the situation gives rise to greater concern.

16

8. Before coming to the alleged events of 2004, which of course are at the heart of the asylum claim, I intend to refer briefly to two matters that were canvassed at the leave stage. They were not regarded as matters of substance by Edwards J. who refused to grant leave in respect of this. A Spirasi report was submitted on behalf of the applicant which concluded "it is the professional opinion of the examining physician that Mrs. A. current symptoms and the findings on physical and mental examination are consistent with the history that she gives of the ill treatment that she receives". When he comes to deal with the report the tribunal member refers to it as saying that certain marks could be consistent. At one level pointing to this divergence of language might seem mere semantics, and indeed Edwards J. was not impressed with the arguments advanced in that regard on behalf of the applicant. The inclination to agree with that approach is re-enforced, if one has regard to the fact that the question of consistency is addressed at two different sections of the medical report, and on one occasion the formula used is "could be consistent". Once more the issue on its own would be of little or no significance. Consistent as referred to in the Istanbul protocol meaning only that the findings could have been caused by the trauma described, but as the protocol makes clear it is a finding that is non specific and there are many other possible causes. It does nonetheless represent another occasion when the tribunal member had options and has chosen the version less favourable to the applicant.

17

9. The introduction to the treatment of the alleged events of 2004 is in these terms:-

"The next event occurred in September, 2004 when the applicant and others were returning from a memorial service for a SDF member".

18

Once more, this introductory remark does not entirely reflect the full history presented by the applicant. In her account the applicant refers to the fact that, in the intervening period, the home of her...

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