V. -v- Refugee Appeals Tribunal & Anor,  IEHC 268 (2009)
|Docket Number:||2008 639 JR|
|Party Name:||V., Refugee Appeals Tribunal & Anor|
THE HIGH COURT
JUDICIAL REVIEW2008 639 JR
REFUGEE APPEALS TRIBUNAL (RICARDO DOURADO) AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENTSJUDGMENT OF MS. JUSTICE IRVINE, delivered on the 28th day of May, 2009.
This is an application for judicial review of the decision of the Refugee Appeals Tribunal (RAT), dated 10th April, 2008, to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicant should not be granted a declaration of refugee status. Leave was granted by Birmingham J. on 21st January, 2009, on the following ground:-
The Tribunal Member erred in jurisdiction and in law in the conclusion he has reached with respect to the issue of refoulement. The Tribunal Member has erred in jurisdiction and in law in concluding that refoulement is not within the remit of the Tribunal in circumstances where submissions were made on behalf of the Applicant that he would be at risk of persecution if refouled to Togo as a failed asylum seeker.
The applicant is seeking an order of certiorari quashing the RAT decision and a further order directing that his claim be remitted for rehearing.
The applicant claims to be a national of Togo. He says that before coming to Ireland he and his wife lived in Lomé with their two children. Their neighbourhood was a stronghold of the ruling party, the Rassemblement du Peuple Togolais (RPT). In 1999 he joined the opposition party, the Union des Forces de Changement (UFC). He claims to have became well known in his neighbourhood as a UFC activist and that his role was to distribute propaganda tracts.
The applicant claims that his troubles began after elections took place on 1st June, 2005. He acted as a coordinator at a polling station during the election. After the election the UFC suspected that the RPT had committed electoral fraud. The applicant says he was given UFC tracts to distribute, encouraging people to demonstrate if the ruling party was re-elected. Although the details are a little hazy it seems he attended a demonstration on 2nd June and distributed tracts there. The following day (3rd June), he was arrested at his home by four men who seized the remaining UFC tracts and took him to a detention camp. On 4th June it was announced that the RPT had won the election. The applicant says he was interrogated, beaten by various means and subjected to various invidious forms of torture including the burning of his feet with cigarettes, the pouring of water over his naked body, deprivation of food and medicine and the administration of electric shocks to his genitals.
The applicant says that he remained at the detention camp until 13th July, 2003, when he was helped to escape by a guard who was a family friend and who was bribed by the applicant's sister. He went to stay with his aunt in Ghana for 15 days. There, he received treatment for his injuries. A priest financed his travel to Ireland with a trafficker. They travelled by plane, with a 20-minute stop-over in Amsterdam. The trafficker gave him documents to get through immigration but he then took them back. The applicant says his wife and two children are in Benin with his sister.
The ORAC stage
The applicant applied for asylum upon arrival in Ireland in July, 2003. At all stages of the ORAC process he claimed fear of persecution by reason of his political opinion. He submitted various documents including a UFC membership card and contribution card, a sample UFC tract and a letter from the UFC in France attesting that he is an active UFC member. He also submitted a letter from the Eastern Health Board confirming that he had attended the psychology service on nine occasions and received therapy for stress management.
A negative recommendation issued from ORAC on 21st January, 2005. Various negative credibility findings were made with respect to the applicant's account. The authorised ORAC officer found that he was involved at a politically low level in the UFC and was unlikely to be in a position to attract the attention of the Togolese authorities. It was found that his knowledge of the UFC was consistent with that which one might expect of a Togolese national but not at the level one would expect from a political activist. It was noted that the applicant was unfamiliar with a new electoral commission established in 2003 and with the Lomé Framework Agreement and it was stated that it was not unreasonable to suggest that a political activist would have a good knowledge of political structures in their country.
The applicant appealed to the RAT and a negative decision issued but was challenged in judicial review proceedings which were compromised and the appeal was remitted for rehearing. Supplementary grounds of appeal were forwarded on 6th July, 2006. Of particular relevance is the following submission:
"The applicant's fear of persecution arises also by reason of his status if refouled to Togo as a failed asylum seeker and/or a failed asylum seeker who sought asylum abroad on grounds of his political opinion and/or by reason of his status as a failed asylum seeker if refouled who is opposed to the ruling regime."
In that regard the Tribunal Member's attention was drawn to two appended country of origin information (COI) reports - a UNHCR Position on the Treatment of Asylum Seekers from Togo (2005) and an Amnesty International (AI) report entitled "Togo: Will History Repeat Itself?" (2005). Also appended were a further AI report on Togo of 25th May, 2005 and an IRIN report dated April, 2006, entitled "Benin-Togo: A year on, only a handful of refugees have returned." Receipt of these documents was acknowledged by the RAT. I will return to the relevant portions of these documents in due course.
In June, 2007 the applicant submitted ten previous RAT decisions relating to Togolese applicants and two further relating to applicants from Cameroon and Albania. He also furnished updated COI including a Swiss Refugee Council (SCR) report of September, 2006 entitled "Togo - Danger for returning Exiles who were involved in Oppositional Activities". In June, 2007 the applicant furnished a SPIRASI report which records that he has scars "typical of" cigarette burns on his feet, other non-specific scars "consistent with" the abuses that he attributes them to, and an episode of haematuria which "consistent with" having sustained trauma to the abdomen. The report found that his psychological assessment would be "consistent with" a post-traumatic state such as would follow his alleged experiences in prison.
On the morning of his fresh oral hearing the applicant furnished the Tribunal Member with a previous RAT decision dealing with an applicant from Zimbabwe who claimed, inter alia, that her life would be at risk from members of the Zanu-PF party if returned to Zimbabwe. The Tribunal Member in that case expressed some doubts about the applicant's story but accepted that she was a national of Zimbabwe and found as follows:-
Having regard to country background information it is clear that returned asylum seekers are liable to face persecution on their return to Zimbabwe (UK Home Office report October 2005 re treatment of returned failed asylum seekers) [ ]. Having regard to the above I believe I should be giving the Applicant the benefit of any doubt I have in respect of her. It seems reasonably likely that if the Applicant was returned to Zimbabwe she could be persecuted for a Convention reason.
In Mr. V.'s case, a fresh oral hearing finally took place in June, 2007 at which he was legally represented. The hearing was adjourned owing to interpretation difficulties and was completed in November, 2007. No attendance note of what was said at the hearing is before the court but the RAT decision gives a detailed summary of the evidence given. Of note is that the applicant is recorded as saying that he was an active UFC member and that he had heard people speak about the election commission and the Lomé Agreement but he was not interested and it was not important to acquaint...
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