NRM (DRC) v Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland and the Attorney General

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Respondent/Defendant:Refugee Appeals Tribunal and Minister for Justice and Law Reform, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2014] IEHC 120
Nature of Proceedings:Judicial Review
Judgment Date/s:20 Jan 2014
Judge:Clark J.
Category:Refugee Law
Keywords:Asylum, Persecution, Refugee
Country of Origin:Democratic Republic of Congo
URL:https://www.courts.ie/acc/alfresco/6dbbede4-0b49-49a1-b541-6733e9bce818/2014_IEHC_120_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:

The applicant, a national of the Democratic Republic of Congo (“DRC”) applied for asylum in March, 2008, claiming to have left Kinshasa two days earlier and travelled to Ireland via Congo Brazzaville, Morocco and Turkey using a Portuguese passport provided by an agent. She said that she had never held a passport and had never been outside of the DRC before. She claimed to fear persecution at the hands of the DRC government by reason of her religion and political opinion. In relation to the religious aspect of her claim she said she was a long-standing member of one Pastor Kutino’s Église Armée de Victoire and, insofar as the political ground of her claim was concerned, said that she was a member of the Movement for the Liberation of Congo (“MLC”).

She said that her problems began when Pastor Kutino was arrested in 2006. She was discovered by the soldiers who arrested him who then injured her with a knife in the stomach, resulting in significant abdominal scarring, which was referred to in a number of medical reports and photographs furnished to the asylum authorities. By January, 2007 she had fully recovered and returned to her voluntary work with her church. Separately, she claimed that she had been persecuted in the DRC on account of her membership of the MLC, suffering assaults and abductions in 2007, during which she had been warned to give up her support for the MLC or face death. Lastly, she claimed that in 2008, two government agents came to her home and offered to pay her a sum of money to poison Pastor Kutino, who was by then in jail. She decided to flee but was apprehended, jailed, and then tortured and repeatedly raped. A prison guard who knew her father arranged her escape, and took her to Ireland using his wife’s Portuguese passport.

The applicant’s major problems on credibility derived from a letter which she presented to the Refugee Applications Commissioner which purported to be from the MLC, dated the 17th November, 2007. It described the applicant as an active member, but was unhelpful to her claim owing to the fact that it stated that she was living abroad, which was inconsistent with her claim never to have left the DRC.

The Commissioner considered her claim to lack credibility and recommended that she not be declared a refugee. She appealed that decision and submitted a corrective, explanatory letter from the MLC which stated the type of letter that had been provided to her was regularly delivered on a proactive and systematic manner to certain party faithful who had suffered because of their activism, and that the description of her as being out of the national territory or as living abroad was for the convenience of the holder of the letter.

She also submitted a SPIRASI medical report, in which the doctor noted that her mood was subjectively and objectively depressed, that she was suffering with a depressive disorder, that she had an irregular abdominal scar which was highly consistent with her reported history of stabbing in 2006, and that she fulfilled the criteria for a diagnosis of PTSD. She also submitted photographs of her abdominal scarring and a discharge note from a Dublin hospital outlining a recent admission for acute abdominal pain and investigations which revealed the presence of fibroids and also extensive scarring from abdominal surgery post stabbing, allegedly with a machete.

The Tribunal upheld the Commissioner’s recommendation on the basis of a number of adverse credibility findings.

The applicant sought to quash the Tribunal’s decision by way of judicial review on the basis that, notwithstanding the credibility findings which were not challenged by her, the Tribunal had failed properly to consider the SPIRASI medical report and also failed to explain why that evidence was not given any or appropriate weight.

Simultaneously with the leave application, the court also heard an application by the Tribunal to dismiss the application on the basis that information received from the United Kingdom Border Agency (“UKBA”) established that she had been issued with a six month multi-visit visa for the United Kingdom not long before she claimed asylum in the State. The UKBA records showed that she entered the United Kingdom in February, 2008, when her fingerprints were matched to her visa. She travelled on a passport issued to her in Kinshasa in 2007 and there was no evidence that she had subsequently returned to the DRC from the United Kingdom, nor did she claim asylum there.

In response to that, she swore an affidavit saying that she had been in the United Kingdom on business, entering it twice on her visa, first for three weeks in November, 2007 and then for two weeks in February, 2008. She admitted lying about never having held a passport and saying she had never been out of the DRC. She claimed that she returned to the DRC in late February, 2008, but as her passport was stolen after her return, she was unable to establish the truth of that averment. She claimed in her affidavit that she had no reason to leave the DRC earlier or to seek asylum when she was in the United Kingdom as she was happy and successful in her work as a trader.

Reasoning:

The court refused leave to challenge the Tribunal’s decision.

It observed that misrepresentation and dishonesty in the asylum process could not be taken lightly. Section 11C of the Refugee Act 1996 imposed on each asylum applicant a duty to cooperate in the investigation of his or her claim and in the determination of any appeal, and to furnish to the asylum authorities all relevant information in his or her possession, control or procurement. Section 11B (i) required the Commissioner and the Tribunal, when assessing credibility, to have regard to whether the applicant had complied with Section 11C, and s. 11B(f) further required them to have regard to whether the applicant had produced manifestly false evidence in support of the claim, or had otherwise made false representations, whether orally or in writing. It also noted that it was a criminal offence under s. 20(2) of the Act of 1996 to give or make to the Commissioner or the Tribunal or any immigration officer any statement or information which, to the asylum seeker’s knowledge, was false or misleading in any material particular. It therefore held that it was not adequate when misrepresentation had been established to accept that what had been said was untrue, and then apologise for the lies, without giving a clear, coherent, substantial and reasonable explanation for actively misleading the asylum authorities. It stated that misrepresentation and dishonesty must not be rewarded and should have consequences, especially when an applicant had had many opportunities to disclose any earlier misrepresentation motivated, for example, by fear of being returned to the country from which he or she had fled. It noted that, in the case before it, there was nothing to prevent the applicant from telling the truth to the Commissioner about her passport and her visa for the United Kingdom on the two occasions she was interviewed by him, and it inferred that she had something to conceal.

The court held that the Tribunal’s assessment of the SPIRASI report was lawful. It noted that there was nothing to suggest that the applicant had been specifically targeted in 2006 or that members of her church were generally persecuted, or that if she were returned to the DRC that she would be persecuted because she was a member of the pastor’s church. It pointed out that her claimed specific fear of persecution was based on her asserted refusal to poison the pastor in March, 2008, and the events which followed, over which, it noted, there was a great deal of scepticism. As the events of 2006 were not the cause of her asserted flight and were not the cause of the PTSD described in the SPIRASI report, then awful as the scarring was to the applicant, it had no real relevance to her claim or to the SPIRASI report, except that it contributed to her low self-esteem.

The court held that, given the credibility concerns, it would require a SPIRASI report containing very compelling objective findings to require a fair-minded decision-maker to pause or reconsider the plausibility of the applicant’s story. It noted that, apart from the scarring which was not related to the applicant’s alleged flight, no objective findings were made in the SPIRASI report apart from the doctor’s opinion that she suffered PTSD and a depressive disorder. No evidence was produced to support her claim of having been struck by handguns by two soldiers until she lost consciousness, as she had alleged occurred, nor was there any suggestion of scarring or marking consistent with alleged regular kicking by soldiers when she was in detention in 2008.

The court took the view that it was difficult to understand what more a Tribunal was supposed to do with a subjective medical report (which is highly dependent on the narrative of the applicant, who knew that her asylum claim had failed at first instance) other than to note its content, especially when the balance of the evidence was overwhelmingly in favour of a finding of a lack of credibility, particularly in light of the contents of what it said were two manifestly dishonest letters purporting to come from the MLC. It stated that it was absurd to suggest that the Tribunal’s findings should be invalidated simply because the applicant’s self-reporting of events to SPIRASI was consistent with her account to the Commissioner and the Tribunal, and that that was especially so given that it was quite reasonably doubted that the events of 2008 had ever occurred and on which further doubt had arisen following recent revelations of her travel to the United Kingdom and her inability to prove that she ever returned to the DRC.

The court held that it was self-evident from the Tribunal’s findings that, if the applicant had depression or PTSD, they could not have been caused by the claimed detention, torture or multiple rapes in March 2008, because those events were found to have been contrived. It held that the case was therefore not one which was governed by the basic principle that where an applicant provided a story which might be true and the medical evidence tended to confirm the story, then the overall assessment of the evidence should weigh in his or her favour.

The court concluded by stating that it was satisfied that the PTSD diagnosis was not capable of corroborating the applicant’s account of detention in March, 2008, nor explain the many aspects of her claim which ran counter to common sense and which the Tribunal validly found to be unconvincing. Nor did it explain the inconsistency of the MLC letters with her account, or her failure to tell the truth to the authorities about her travel to the United Kingdom.

Where the balance of the evidence suggests that an applicant’s claim for refugee status lacks credibility, a SPIRASI report which contains

Decision:

The court accordingly refused leave to challenge the Tribunal’s decision.

Principles:

It is not sufficient when misrepresentation on the part of an applicant for asylum has been shown for that applicant to accept that what has been said is untrue, and then apologise for the lies. The applicant must give a clear, coherent, substantial and reasonable explanation for actively misleading the asylum authorities. Misrepresentation and dishonesty must have consequences, especially when an applicant has had many opportunities to disclose any earlier misrepresentation motivated, for example, by fear of being returned to the country from which he or she had fled.

A Tribunal’s findings will not be invalidated simply because an asylum applicant’s self-reporting of events to a medical practitioner, as may be working on behalf of SPIRASI, is consistent with his or her account to the asylum authorities, particularly where aspects of the claim related by the applicant lack credibility.

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