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AON v Refugee Appeals Tribunal

Applicant/Plaintiff: A.O.N.
Respondent/Defendant: Refugee Appeals Tribunal
Citation/s: [2016] IEHC 465
Court/s: High Court
Judgment Date/s: 29 July 2016
Judge: MacEochaidh C.
Category:Refugee
Keywords:Asylum application (Examination of an); Persecution; Protection (Application for International); Refugee Law;
Country of Origin: Uganda
Geographical Focus:Other

Facts:

The applicant was a Ugandan national who applied for refugee status in the State. She claimed that she was detained in 2007 and 2011 because of her involvement in politics, and that while in detention she was physically abused and sexually assaulted. She submitted a medical report in support of her claim which noted that she exhibited scars typical of burns and that she had diffuse bruising on her lower limbs which was consistent with her history of being beaten with a baton.

The applicant’s application for asylum was refused at first instance on credibility grounds. Her refugee appeal was dismissed by the Tribunal. The Garda Technical Bureau had examined an identity card she submitted and concluded that it was not genuine.  In relation to the medical report, the Tribunal Member noted that while it recorded the applicant’s injuries as being consistent with her account, it was not possible to say how the injuries were inflicted or by whom. The Tribunal Member also rejected the applicant’s credibility on the basis of her demeanour, on the grounds that the manner in which she gave her evidence strongly suggested she was recounting a ‘learned off’ version of events. The Tribunal Member noted that when the applicant was asked a question which interrupted her account she became confused; this was described as ‘a typical indicator of recital of memorized version of events as opposed to a spontaneous recall and recounting of experienced events’. Having rejected the applicant’s credibility comprehensively the Tribunal Member, in relation to the medical evidence, concluded that she was not rejecting the medical evidence, but simply pointing out its limitations in terms of constituting corroboration of events alleged to have occurred in another country, or constituting events of the reason for the infliction of wounds that have since healed but have left scars.

The applicant brought judicial review proceedings challenging the legality of the decision, arguing that the Tribunal Member had failed to have proper regard to the medical report and failed to give adequate reasons for rejecting the report. The applicant also complained at the manner in which her credibility was rejected, and that the Tribunal Member had failed to consider the “compelling reasons” test in Regulation 5(2) of the European Communities (Eligibility for Protection) Regulations 2006.

Reasoning:

The court dismissed the complaint that the Tribunal Member failed to have proper regard to the medical report. The court was satisfied that that report was fully considered and reasons given for why the Tribunal Member rejected the report.

In relation to the assessment of credibility, the court held that it was not incumbent upon the decision maker to comment upon each factual allegation or assertion made by the applicant. MacEochaidh J.  held that the Tribunal Member was entitled to form an overall assessment of credibility and reject it provided the rejection was explained, and was satisfied that this was precisely what happened in this case. The decision maker was entitled to make findings as to credibility based on demeanour provided these were fully explained and based on accurate observation. The court was satisfied that there was no conjecture or speculation about factual events as recounted by the applicant. MacEochaidh J.  stated “No illegality attaches to a decision which accepts that a person is scarred but suggests that events other than those described by the applicant caused these injuries. Such reasoning does not constitute unlawful speculation or conjecture where the reason for the rejection of the applicants account is given.” The court said that once the Tribunal Member decided that the applicant was not telling the truth, but nonetheless displayed emotion such as crying and distress, she was entitled to attribute these expressions to matters other than those in the applicant’s narrative which was decided to be a false claim for asylum.

The court held that the duty on the decision maker to make inquiry and to apply the counter exception in Regulation 5(2) only arose in circumstances where there was proof of past persecution or serious harm, as defined in the Directive and the Regulations. The court noted that the only evidence of past persecution or serious harm in this case was that offered by the applicant, which was rejected on credibility grounds. In those circumstances, MacEochaidh J. was satisfied that there was no acceptable evidence of past persecution or past serious harm and, therefore, the obligation to consider the counter exception in Article 5(2) did not arise.

In relation to the medical report, the court held that the report was not evidence of past persecution or past serious harm. MacEochaidh J. noted that a medical report can only describe the injury and while such a report may be evidence as to whether the injury observed is consistent with the narrative of the patient and description of how the injury was inflicted, in a case where credibility was rejected, as it was here, mere consistency between the applicant’s claim as to the circumstances in which the injury was inflicted and the injury as observed by the doctor was not a circumstance which would trigger an inquiry under Regulation 5(2) of the Protection Regulations.

Decision:

Application for leave to challenge the decision of the Refugee Appeals Tribunal dismissed.

Principles:

A refugee decision maker is entitled to make findings as to credibility based on demeanour provided these are fully explained and based on accurate observation. A medical report is not evidence of past persecution or past serious harm; such a report can only describe the injury and whether the injury observed is consistent with the narrative of the claimant.


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