CB (DR Congo) v Refugee Appeals Tribunal

adminLeave a Comment


DR Congo
Respondent/Defendant:Refugee Appeals Tribunal
Court/s:High Court
Citation/s:[2012] IEHC 487
Nature of Proceedings:Judicial Review
Judgment Date/s:26 Jun 2012
Judge:Clark J
Category:Refugee Law
Keywords:Asylum (Application for), Asylum application (Examination of an), Country of Nationality, Country of Origin Information, Gender, Geneva Convention & Protocol, Nationality, Persecution, Persecution (Acts of), Protection (Application for International), Refugee, Refugee (Convention), Refugee Law, Sex
Country of Origin:Democratic Republic of Congo (DR Congo)
URL:https://www.courts.ie/acc/alfresco/99f30cf3-a5d8-4363-a135-9f214e3da2a1/2012_IEHC_487_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts

The applicant was a national of the Democratic Republic of Congo (DR Congo). She claimed that she came from South Kivu province in eastern DR Congo and that she had suffered arrest, detention, beating and rape because of her activities in organising a small informal group whose purpose was to educate people about rape and warn against the activities of the RDC militia and Rwandan troops in occupation in the eastern DR Congo. She stated that after she escaped detention she fled to Rwanda and ultimately to Ireland. When she applied for asylum in Ireland she did not disclose that she had spent time in Italy and had made a previous application in Belgium after going there from her native DR Congo. This material non-disclosure was the primary reason why negative credibility findings were made in respect of her narrative and she was refused refugee status. She was not afforded an oral hearing.

The applicant argued that the Refugee Appeals Tribunal failed to grapple in any substantial way with the submission that she feared persecution by reason of her membership of a particular social group, namely women in eastern DR Congo, and in doing so failed to apply a forward looking assessment of risk. It was also submitted that it gave insufficient consideration to documentary evidence furnished. These included medical reports, letters and personal documents, relevant previous Tribunal decisions, written submissions, and a large number of country of origin information reports which supported the application.  The Tribunal in its decision noted the documents submitted included country of origin information and, in particular, the submission that the applicant faced persecution because of her membership of a particular social group namely women in east Kivu. She also noted the negative credibility issues and questioned whether the events alleged had occurred at all and stated that the claim of gender based persecution on grounds of membership of a particular social group was a “bare assertion”.

Reasoning

The High Court held that the aspects of the applicant’s claim which were not specifically rejected were her gender and asserted nationality and possibly that she is from eastern DR Congo. In those circumstances, the Court found that it was arguable that, given the well documented prolonged violent conflict in that region, the Tribunal ought to have done on to apply a forward looking assessment of risk, based on those elements. There was strong support in the country of origin information reports which were before the Tribunal that particularly egregious gender-based persecution takes place in South Kivu in addition to generalised and indiscriminate violence. Forward looking submissions were made to the Tribunal which urged an alternative basis for refugee status in the event that the applicant’s narrative was disbelieved, grounded on that gender-based persecution and the Tribunal had not addressed that claim. It was arguable that that forward looking test should have been applied. On the basis of the country of origin information, it was arguable that gender is a relevant contributory reason for the rape and sexual violence suffered by women and a large amount of country of origin information was provided to the Tribunal to support the claim that violence in the DR Congo has a differential impact on women.

Decision

Given that the applicant’s gender and asserted nationality and possibly that she was from eastern DR Congo were not specifically rejected, the Tribunal had not addressed the claim grounded on that gender-based persecution.  It was arguable that that forward looking test should have been applied. On the basis of the country of origin information, indicating particularly egregious gender-based persecution, it was arguable that gender was a relevant contributory reason for the rape and sexual violence suffered by women and a large amount of country of origin information was provided to the Tribunal to support the claim that violence in the DR Congo has a differential impact on women.

The Court found that it was arguable that the Tribunal erred in the assessment of this part of the applicant’s claim as it failed to investigate or assess the possible risk to the applicant as a member of a particular social group, and instead dismissed it as a “bare assertion”. The Court found that there was no flaw in the Tribunal’s assessment and consideration of other documentation submitted by the applicant.

Principles:

It is arguable that where specific elements of a claim are not specifically rejected and there is well documented evidence of gender-based persecution, on which submissions are put to the Tribunal, it ought to apply a forward looking assessment of risk, based on the elements inter alia of gender and nationality.

The Tribunal must investigate or assess the possible risk to an applicant as a member of a particular social group, where there is information that gender is a relevant contributory factor in sexual violence suffered by women and that such violence has a differential impact on women.

Go Back

Leave a Reply

Your email address will not be published. Required fields are marked *