HK v Refugee Appeals Tribunal and Another

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Respondent/Defendant:Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2015] IEHC 65
Nature of Proceedings:Judicial Review
Judgment Date/s:05 Feb 2015
Judge:Faherty J.
Category:Refugee Law
Keywords:Refugee
Country of Origin:Democratic Republic of Congo
URL:https://www.courts.ie/acc/alfresco/7fd97459-974d-411a-a35d-4dba569939d0/2015_IEHC_65_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicant was a national of the Democratic Republic of Congo (“DRC”). He arrived in Ireland in August 2009 and claimed asylum. He claimed that his cousin, who was a member of an opposition group with militant tendencies and who was wanted by the authorities, had come to stay with him whilst he made arrangements to flee the country. The applicant told a neighbour about this in confidence; however, the neighbour requested that he send him away. Some days later, armed men came to his house and took the applicant and his cousin away. He alleged that he was beaten and detained for three and a half months. He was told that he was going to be transferred to a prison where he would be executed or detained for life. After two months in prison, he became ill and had his appendix removed. He remained in prison under armed guard. A contact of his then visited him and told him that a rich client had decided to use his money to have him released. They subsequently left the hospital after handing over money to two guards, travelling by motorbike to Rwanda, before flying to Ireland via a number of intermediate countries. On arrival the applicant spent a day in Dublin city and did not apply for refugee status until the person who had accompanied him left the country.

Having investigated his claim, the Refugee Applications Commissioner made a negative recommendation on it, which was affirmed by the Refugee Appeals Tribunal, whose decision the applicant challenged in these proceedings.

The Tribunal rejected the applicant’s credibility. The applicant impugned its decision.

He argued that the Tribunal had failed to consider the full extent of the medical and psychiatric evidence, including a SPIRASI report noting some scarring and symptoms of mental suffering, which were said to be consistent with his account of ill-treatment.

The court quashed the Tribunal’s decision.

Reasoning:
The court noted that the Tribunal had taken the report into account. However, it was not satisfied that its summary of it was sufficiently accurate as to enable it to assess the validity of the process by which the Tribunal reached its conclusions on credibility. It had alluded to an appendix scar, a diagnosis of mild to moderate depression and the existence of an element of PTSD. However, the court noted there was no reference in it to the applicant’s anxiety disorder or to the other physical findings outlined in the report. It held that, given the absence of any indication in the decision of the probative value which had been attached to the report by the Tribunal or, at the very least, absent a more accurate recital of its physical and mental health findings, it was not satisfied that the Tribunal had considered the entire report and weighed the medical findings in it in the balance. Accordingly, it was not satisfied that the Tribunal, in assessing credibility, had had regard to the full picture or had given reasons for discounting the probative value of the report.

The court held that the Tribunal had erred in rejecting the credibility of the applicant’s claim to have received medical attention, finding this inconsistent with his claim that the authorities allegedly wanted to have him executed. In the court’s view, it failed to assess his explanation that they thought he might be able to give useful information to them about his cousin’s opposition group.

The court held that the Tribunal ought not to have taken an adverse view of the applicant’s credibility on the basis of his delay in claiming asylum, particularly when he had explained that the agent with whom he had travelled had told him to wait until he had left the country before claiming asylum, which in its view was not implausible.

The court held that the Tribunal had erred in making an adverse credibility finding on the applicant’s travel to the State by reference to s. 11B(b) of the Refugee Act 1996, there being no evidence that the applicant specifically claimed Ireland was the first safe country he encountered after leaving his country of origin.

The court rejected the applicant’s argument that his mental state was a factor which should have been taken into account by the Tribunal when it was deciding whether or not he had given a coherent explanation for not seeking international protection in the countries he travelled through before coming to Ireland. There was no suggestion in the recital of evidence given by him that he had cited psychological impairment as the reason for his not having sought protection prior to arriving in Ireland. The SPIRASI report did not afford any basis for such a belief.

Decision:
Having regard to the cumulative effect of the findings which had been set aside, the court decided to quash the Tribunal’s decision.

Principles:

When assessing a medical report, a decision-maker should set out sufficient basis in the decision to enable the subject of the decision and any court on review to know the basis upon which the contents of the report were discounted for the purpose of assessing credibility.

Section 11B(b) of the Refugee Act 1996 should not be relied upon where an applicant does not claim that Ireland is the first safe country he or she reached.

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