Leave granted to challenge credibility assessment and medical evidence rejection in asylum refusal case.

Neutral Citation Number: [2010] IEHC 312

THE HIGH COURT

JUDICIAL REVIEW

BETWEEN

2007 1677 JR

K. K.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (BEN GARVEY)

RESPONDENT

AND

IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTIES

JUDGMENT OF MS. JUSTICE M.H. CLARK, delivered on the 15th day of June, 2010

1. The applicant is a national of the Democratic Republic of the Congo (“DRC”) who seeks leave to apply for judicial review of the

decision of the Refugee Appeals Tribunal, dated the 25th October, 2007 which affirmed the recommendation of the Refugee

Applications Commissioner that he ought not to be declared a refugee.

2. The application was heard on the 28th January, 2010. Mr Robert Haughton S.C. appeared for the applicant and for his wife H.M.W.,

whose leave application [2008 No. 33 J.R.] was heard on the 18th March, 2010. Ms Fiona O’Sullivan B.L. appeared for the respondent

in the husband’s case. The Court will also deliver judgment in his wife’s case today.

3. The applicant challenges the validity of the RAT decision on the basis that the decision contained errors of fact, deficiencies in the

assessment of documents furnished and in the assessment of credibility, flaws in the assessment of medical evidence proffered and

for failing to consider the future danger to the applicant if he were to be returned to his country of origin.

Background

4. The applicant applied for asylum at Dublin airport on the 25th August, 2004. His wife had previously applied for asylum also at the

airport on the 6th July, 2004 with their two infant daughters. She says she was unaware at the time that her husband was alive as

she had not heard from him in almost 18 months. Although his ASY-1 form is not before the Court and so it is not clear what he said

when he first arrived in Ireland, he has since said that he did not know that his wife and daughters were already in Ireland. The

husband’s account in his questionnaire was that he was born in 1967 in Kinshasa. He was in education for 13 years and then worked

as a trader at Matete market in Kinshasa. While he had been raised a Catholic he had ceased to practice. In late 1998 he joined the

BDK (Bundu dia Kongo) in Kinshasa because he liked their political opinion and religion. Following a period of nine months training in the

philosophy of the party he was sworn in as a member in 1999. He was in charge of propaganda and distributing leaflets and papers.

The BDK is described in country of origin documents as an ethnically-based spiritual and political movement seeking political autonomy

in the Bas-Congo province of western DRC, on the border with Angola. A UK Home Office Report of April, 2005 describes the BDK as a

politico-religious organisation which demands that its adherents renounce western and eastern religions and seeks to promote ancient

ancestral traditions.

5. He married his wife who lived in Bas Congo in October, 1999. He continued to work in Kinshasa until February, 2002 when -

following a complaint about what he considered to be unfair taxes on traders (retailers) - he was arrested at his home in Matete,

Kinshasa and taken to the police station where he was described as a trouble maker. His brothers secured his release by bribing a

policeman who permitted his escape during a planned transfer to Makala prison. He then left Kinshasa and went by truck and ship to

join his wife, daughter and mother-in-law in Luozi, some 350 km away. He stayed in Luozi, worked as a trader and continued his

political activities. No explanation was given (nor were any questions asked) on how the marriage was conducted between October,

1999 and February, 2002 when he moved to Luozi.

6. In Luozi on the 40th anniversary of the creation of Central Congo he took part in a march organised by the BDK. This was on the

22nd July, 2002 when he and others were beaten up and arrested and he sustained eye injuries. Other people around him were killed

and many were injured. His recital of events differed from that of his wife in that he did not mention any incident at a prayer meeting

two days previously nor did he mention the alleged disappearance of his mother-in-law. Following his arrest he says that he was

taken to a named camp where he was held to await trial in Kinshasa. He claimed that he was “tortured, beaten up, raped” while in

captivity.

7. On the 20th January, 2004 he was transferred to Wing 4 of Makala Central Prison in Kinshasa where he was relatively well treated

and was not tortured. However he developed typhoid in August, 2004 and became very ill. He was admitted to intensive care in

Kinshasa General Hospital where he spent five days. In the meanwhile his family in Kinshasa had been contacted by the authorities

and told of his detention in Makala and his subsequent move to the Hospital. They visited him and bribed a doctor to secure his

escape when being taken for an x-ray on the 10th August, 2004. His brother and sister were waiting outside and they took him to a

place to hide and receive treatment for two weeks while his brother arranged for him to leave for Ireland. On the 28th August, 2004

he flew to Dublin via Johannesburg and London using a borrowed Irish passport bearing a photo which resembled him. When he got to

immigration at Dublin airport, he applied for asylum.

8. The husband attended for two s. 11 interviews in March and May, 2005. He submitted documents forwarded to him by his brother

including a national identity card bearing his photo and biographic details; a letter from the BDK dated the 20th October, 1999

attesting his membership; an “attestation de perte de pièces d’identité”; and a handwritten letter from his brother stating “they have

come to look for you”. He said his BDK membership card was lost when the police searched his belongings.

9. Unlike his wife, the husband provided extensive information about the BDK organisation and of his training before he was admitted

as a member. He provided details on the objects of the organisation and he gave a detailed description of the appearance of BDK

membership cards.

10. The Refugee Applications Commissioner made a negative recommendation basically because a series of country of origin

information (COI) reports on the BDK did not support the applicant’s account of being imprisoned until 2004 as a Presidential amnesty

in April, 2003 had effected the release of all BDK members arrested following the march. In addition, there was no evidence to indicate

that BDK members were persecuted after the amnesty.

The Appeal

11. The husband appealed and challenged the decision on 10 grounds including the validity of the Commissioner’s reliance on COI

which stated that all persons held in prisons in the DRC were released. It was asserted that many prisoners continued to be held in

secret detention centres after the amnesty. It was also submitted that the Commissioner failed to consider whether the applicant

would face persecution on his return to the DRC i.e. failed to apply a forward looking test. A series of COI reports on the BDK together

with medico-legal reports from SPIRASI outlining his injuries and psychological condition accompanied the appeal documents. He also

asked the Tribunal Member to consider seven previous RAT decisions concerning applicants from the DRC who had successfully

appealed negative ORAC recommendations.

12. A joint oral hearing took place on the 3rd September, 2007 at which the husband and wife were separately heard but represented

by the same counsel. An attendance note of the hearings is before the Court. The nature and difference in quality in the husband and

the wife’s evidence is apparent and may possibly be explained by age and education differences or because one or both of them are

untruthful. There are very considerable inconsistencies between their evidence especially as to their level of awareness of the BDK

organisation and the husband’s knowledge of the organisation appears of a very different quality to that of his wife.

13. At the hearing, the husband described how during his detention at the military camp he was accused of inciting tribal hatred,

tortured, given hard work, forced to stand naked and dance for soldiers, whipped and raped. The Tribunal Member in error believed

that this was the first time the issue of the rape was raised and asked why. The applicant explained that he was ashamed of what

happened but that his counsellor advised him that he should raise the matter. As he had not yet received this advice when he was

examined by the SPIRASI doctors who prepared the medico-legal reports, he did not raise the issue with them.

14. He explained that his family had located him in Makala because they assumed he would be there and were later officially informed.

No explanation was provided for the authorities’ failure to inform his wife of his whereabouts or his family’s failure to inform her that he

was alive. He suggested that perhaps his family might have “been trying to keep it secret because they knew something would

happen in the future”. He disagreed that there had been an amnesty in 2003 or that it would be safe to return to the DRC. He stated

that the BDK continued to be persecuted, referred to COI reports relating to events in 2007 and disagreed with the Presenting

Officer’s suggestion that the BDK had brought the 2007 attack on themselves as they were responsible for beating to death some

police officers and civilians.

The Tribunal Decision

15. The Tribunal Member rejected the applicant’s appeal and affirmed the negative recommendation of the Commissioner. He was

critical of the husband for raising the issue of rape for the first time at his oral appeal. He stated that he was taken by surprise by

this assertion and that it was difficult to assess its veracity. He then outlined a number of problems on credibility and highlighted a

series of inconsistencies between the husband’s evidence and that of his wife. While each incident of inconsistency outlined would

not necessarily stand on its own as a reason for rejecting credibility, cumulatively they were considered to put “a question mark over

whether in fact, he was ever in the BDK”. It followed that if the husband was not believed about his membership of the BDK, then his

recital of the persecution he alleged also fell away.

The Court’s Assessment

16. The Court has some concerns that the accumulation of credibility findings that led to the rejection of the applicant husband’s

appeal may in fact lie in the wife’s claim. Had the wife’s story not been so bizarre and inconsistent, there is a possibility that the

husband’s narrative might, if considered on its own, have been considered more credible. The Tribunal Member’s error in believing that

the applicant complained of being raped for the first time at the oral hearing may have taken on more importance in the assessment

of the husband’s credibility than such an error would normally warrant. Had the husband been recounting his own experiences in the

BDK and the persecution that followed because of such membership, there may not have been such a comprehensive rejection of his

recital of events, of his documents and of his medical report. There remains the lingering doubt that had he been believed in his

assertion that he was a BDK member, the medical report may not have been rejected as being “contingent upon whether the Tribunal

believes the applicant’s story about how he came to suffer the injuries he claims to have sustained at the hands of the authorities in

the DRC”.

17. The documents he furnished were undoubtedly secondary evidence to be weighed in the light of his other testimony. However, if

the Tribunal Member had not rejected the husband’s credibility because of the inconsistencies with his wife’s evidence, those

documents may have been considered supportive of his identity and his membership of the BDK. The reasonableness of the

assessment of the documents clearly depends on the validity of the assessment of his credibility. The documents which were ignored

by the Tribunal Member relate to the key issue of the husband’s BDK membership. While the oddly-worded 1999 letter from the BDK

may have required some explanation, no questions seem to have been raised in that regard at the hearing and no assessment of its

content or relevance was made. Similarly no assessment or comment was made on the other documents being the “attestation de

perte de pièces d’identité” or the note from his brother. As the Tribunal Member did not find the applicant credible in relation to his

membership of the BDK at all and therefore did not believe that he was imprisoned and tortured because of adherence to the BDK, the

weight he attached to the documents produced was minimal.

18. Credibility findings are exclusively within the remit of the Tribunal Member as the decision maker and it is not the function of the

High Court in judicial review to conduct a fresh assessment of credibility or to substitute its own view for that of the Tribunal Member.

The same Tribunal Member conducted the appeals of the husband and the wife on the same day. It was he and not this Court who

heard each appellant’s version of events and formed a view on credibility and he had the advantage of seeing and hearing the parties.

However, the Court harbours misgivings as to possible unfairness to the husband in the process whereby his credibility was assessed.

The Court remains concerned that major discrepancies in the separate stories infected the evidence of both parties where the

evidence of the husband on his own may have been credible. The Court has not granted leave to the wife to challenge the negative

credibility findings in her case notwithstanding a strongly worded and supportive medical report, as the primary credibility findings

were entirely rational having regard to her evidence. This is a different situation because the husband was well able at every stage to

describe how he joined the BDK and to describe the aims and objectives of the organisation. The SPIRASI medical report which noted

that the husband’s “scars and the marks have the random appearance of repeated physical abuse which would be consistent with

the story that he gives” may have taken on a greater weight if the applicant’s basic credibility had not been rejected. Leave will be

granted to challenge the way in which credibility of his membership of the BDK was assessed.

19. This brings the Court to the last point in the applicant’s challenge which is that the Tribunal Member failed to apply a forward-

looking test and to assess whether, if the applicant is returned to the DRC, he would face a risk of persecution by reason of his BDK

membership. COI before the Tribunal Member referred to the death of 100 BDK members at the hands of government forces at a post-

election demonstration in Bas-Congo in January / February, 2007. The respondents argued that because the applicant’s asserted

religion / political opinion was not believed, there would have been little reality in applying a forward looking test. This is unarguably

correct but if there is any frailty in the assessment of credibility in relation to membership of the BDK then the failure to assess the

possibility of future risk might also be impugned. The ground relating to a forward looking test was not mentioned in the applicant’s

statement of grounds or in the written submissions filed on his behalf, and was raised for the first time at the hearing of the leave

application. For this reason, leave will not be granted on this ground but if the hearing of the substantive action is successful then

this point should be addressed at the rehearing.

Conclusion

20. In sum, while recognising that the assessment of credibility where major inconsistencies in the husband and wife’s evidence must

have presented a challenge for the Tribunal Member, the Court has concerns that the husband’s credibility was infected by the

negative findings against the wife. Leave to argue will be granted on the following grounds:

(i) The respondent acted irrationally and unreasonably in reaching his decision on credibility in that he was

disproportionately influenced by flaws in the narrative given by the applicant’s wife and ignored the husband’s greater

knowledge and awareness of the BDK; and

(ii) The respondent’s negative assessment of credibility led him to wrongly reject the medical evidence.