High Court grants leave to challenge Refugee Appeals Tribunal decision on failed asylum seeker status and evidence delay.

Neutral Citation Number: [2009] IEHC 185

THE HIGH COURT

2008 639 JR

BETWEEN

F.V.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL and MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

JUDGMENT OF MR. JUSTICE BIRMINGHAM delivered the 21st day of January, 2009.

Yesterday, I had indicated my intention to grant leave on ground and on ground only. I do not propose to elaborate on

that to any great extent, save to put it in context.

The applicant claims that he is a national of Togo, and his account as he presents it is that he was born Zaire in 1967 but

returned to Togo at a young age. He married and has two young children. On his account, he joined the UFC or the Union

des Forces de Changement. His family live in a stronghold of the ruling party, the RPT, and he was known in the area as a

member, activist and supporter of the opposition party. The applicant's difficulties are said to have arisen after the

election of the first of June 2003, a disputed election. He says that he acted as a co-ordinator at a polling station in a

suburb of Lomé and that there was massive election fraud. He claims that the UFC candidate actually won the election

but that he was aware, as others were aware, that the ruling RPT Party would declare themselves winners. As a result,

on the second of June 2003, before the winner was announced, his UFC superiors gave to him for distribution what has

been described as tracts, and these stated that the leader of the UFC had actually won the election and appealed to

people to come out on to the streets to protest before the results were announced. He says, the following day, a protest

of about 100 people took place, that efforts were made to arrest the protesters and, when they tried to flee, they were

kicked and beaten.

That day, four persons raided the applicant's house, took away his identity papers and as well as the remainder of the

tracts that he had been engaged in distributing. They took him to a detention centre in Lomé, placed him in a small cell,

stripped him to his underwear. He says that thereafter and, in particular, after the announcement that the RPT had won

the election, he was interrogated about the source of these tracts. This involved being beaten every second day with

batons, with a rope with steel ends and with an electric cable. He says that soldiers burnt his feet, using cigarettes, they

poured water over his naked body, that they deprived him of food and medicine and that they administered electric

shocks to his genitals. He says that he was one month at this detention camp until he was helped to escape by a guard

who was a family friend and who was bribed to offer assistance by the applicant's sister. The applicant claims that the

guard arranged for his escape during a football game that took place on the 13th of July 2003, that the guard opened his

cell door, gave him a jersey and boots and instructed him to mingle with the spectators and players and then leave

through the main gate.

Having escaped from the detention centre, the applicant went to Ghana, where he lived for some 15 days, received

treatment for his injuries and then a priest helped to organise funds that would allow him to leave. He claims to have

travelled with an agent by plane from Ghana to Ireland, the flight involving a 20-minute stopover in Amsterdam, and that

the agent gave him a passport to get through immigration.

There are a number of aspects that emerge from the Tribunal decision to which the tribunal member attached

significance, and they might be summarised perhaps as: first of all, the applicant's lack of knowledge about the national

electoral commission of Togo, the so-called CENI, and also about the so-called Lomé Agreement; secondly, discrepancies

as to whether protesters were killed on the third of June 2003 and as to what the applicant's state of knowledge was in

that regard, a view formed by the Tribunal member that if the RPT wanted an opportunity to get the applicant, why was

it that his neighbours in the RPT stronghold in which he lived did not report him to the authorities and why indeed was he

not killed, even though there were several opportunities to do so. Next, that he failed to mention the fact that he was

subjected to electrical shocks in his questionnaire and in the section 13 interview, that it was regarded as implausible that

it was possible to escape, badly beaten as he was, that there were certain discrepancies in his account of how he

escaped and who helped him, in particular that a colonel emerged well through the narrative. It is regarded implausible

that a friendly guard would risk his career or life so as to help the applicant escape. The reference to a stopover for 20

minutes in Amsterdam was seen as implausible. So too is the fact that he was not detected at the airport travelling on a

false passport. Certain documentation that he submitted were not viewed as having been authenticated. A SPIRASI

report, to which I will be referring in a moment, was seen as not corroborating his evidence and also the fact the issue of

refoulement was not within the remit of the RPT, and I refer to that aspect again.

Yesterday I summarised the challenges that are advanced and the issues raised as being essentially four in number, four

depending on whether you see it as being an individual one or as a subset, four or five, they being the failure to

adequately consider this SPIRASI medical report, an error of law with regard to the jurisdiction of the Tribunal, and that

relates to the question of the Tribunal's entitlement of obligation to embark on consideration of the question of whether

as a failed asylum seeker he was at risk of persecution; a failure to consider credibility in the context of country of origin

information; a complaint that the Tribunal member engaged in impermissible speculation and conjecture; and as I say,

perhaps as a subset of this, flawed treatment of the evidence in respect of electric shocks.

While the decision has been broken down in this regard, it is, I think, important to stress that what is required is that the

decision be viewed in the round and that the overall impact of the decision should be considered. My colleague, Mr Justice

Cooke, in a judgment given in the last couple of days, a case of Kiuni, where he gave judgment on the 13th of January,

warned against the tendency to deconstruct decisions. It seems to me that that is a warning that is well made because

all of these cases turn to a significant extent on their own facts. So, to take but one example, it may be that the manner

in which medical evidence is considered in one situation, may be regarded as inadequate but comparable situation against

a different factual background might be regarded as perfectly acceptable.

Having made those preliminary remarks, I will just say a few words about the individual criticisms. The Tribunal dealt with

the issue of the medical evidence in the following terms. "The Tribunal is asked to accept the SPIRASI report as

collaborating the applicant's evidence. A doctor does not usually assess the credibility of an applicant, and it would not

be appropriate for him to do so. The Tribunal member has more material than the doctor and will have heard the evidence

tested. A doctor will always accept at face value what an applicant tells him about his history. Therefore, the report,

subject to exceptions, has a limited value in advancing the applicant's claim or in assessing his credibility. This application,

taking into consideration the questionnaire, the interview notes and his testimony at his appeal, I believe that the

applicant has fabricated a story to give credence to his allegation that he is fleeing persecution."

It seems to me that this Tribunal member was entitled to adopt the approach to the medical evidence that he did. The

most that any physical examination can do is to record what was observable and comment on whether their physical signs

are consistent with the account put forward. As we know, in commenting on the significance of medical evidence, a

practice is to do so by reference to a scale that is set out in the Istanbul Protocol.

However, what a medical report cannot do is offer any assistance as to the circumstances in which the applicant has

come by his injuries. So, marks on feet can be consistent with cigarette burns, but there is no assistance to be obtained

as to whether those burns were inflicted in prison during the course of torture or whether they were caused to be

inflicted for the purpose bolstering the applicant's account. The Tribunal member clearly believes, in this case, that it was

just that which has happened. As the person who has observed the applicant give his evidence, he was best placed to

meet that assessment, and accordingly I do not believe that the applicant's challenge on this ground is made out. It

seems to me too that there is some substance in the argument made by Mr Moore, counsel on behalf of the respondent,

that the medical report is significant as much for what it does not record as what it does. And certainly the findings set

out seemed quite limited in the context of the account given of repeated severe torture.

The question of consideration of credibility in the light of country of origin information

The applicant's account of his escape was regarded a implausible, in that it was felt unlikely that a prison guard would risk

his career, and indeed his life and liberty, by arranging an escape in return for the payment of a bribe. The applicant

points to the fact that country of origin information indicates that bribery and corruption was widespread.

The situation here is that the Tribunal member has stated specifically that country of origin information was in fact

considered by him. In the light of that specific statement, there is an onus on the applicant to overcome that assertion.

That he has failed to do. It must be said that this was not a case where the country of origin information was of

enormous significance. Notwithstanding the prevalence of corruption, the point made about the risks being undertaken by

someone accepting a bribe to facilitate the release of a prisoner of considerable interest to the authorities, remains valid.

It must also be said that sadly the fact that corruption and bribery is widespread in Togo, and indeed throughout much of

that part of Africa, is something that is widely known. So, again, the challenge on this ground also fails.

Speculation and conjecture

A number of the findings are criticised as speculation and conjecture, including findings in relation to the manner of

escape, the very capacity to escape, given the severity of the torture to which it is subjected, and the details of his

travel to Ireland. It is trite law to say that a decision must not be based on speculation and that it must be grounded on

something more than gut instinct. However, while the Tribunal member should not engage in speculation, he is not

expected to leave his ability to reason outside the hearing room. He is fully entitled to draw inferences and make

deductions. The standard instruction to a jury in a criminal trial, that they should avoid all speculation but are free to

draw inferences, comes to mind. My view of the conclusions reached are in the nature of inferences drawn, as distinct

from amounting to impermissible speculation.

The Tribunal member did, as I believe he was entitled to do, draw on his own experience of travelling by air. He was, to

my mind, fully entitled to attach significance to the fact that, to his knowledge, there is no flight from Ghana to Dublin

which involves a 20 minute stop-over in Amsterdam, or indeed, let it be said, any flight where the route involves Accra,

Amsterdam, Dublin. Had the Tribunal member been in error in that regard, I have no doubt that would have been pointed

out and the case would have been made that the decision was vitiated by a fundamental mistake of fact.

In relation to the treatment of the evidence in relation to electric shocks to the genital areas, I must say that it was not

clear to me, when I first read the report of Dr Bulublia, that he was not referring to this issue in its report, albeit doing so

without specifying the area to which the shocks were applied. However, when the subject was raised with the applicant,

his response was to indicate that the doctor had been told about this, but that the doctor had chosen not to include it in

the report, but had instead urged him to raise the issue at the appeal. The Tribunal member is criticised for not taking on

board how difficult it can be for the victims of torture, more particularly, torture involving sexual abuse, to describe in

detail what has happened.

Once again, it seems to me that the Tribunal member is uniquely advantaged in identifying the reason for the delay.

Having seen and heard the applicant, he formed a clear view that the delay to disclosure and, as he saw it, the initial

non-disclosure could not be explained by shyness or reticence. That was a conclusion that was open to him, and so I

reject this ground of challenge also.

The issue relating to him being a failed asylum seeker

The Tribunal member dealt with this issue in these terms. "Ms Walsh, counsel on behalf of the applicant, submitted that

the applicant is in fear of persecution if he is refouled. Under paragraph 5 of the Refugee Act, 1996 as amended,

refoulement is not within the remit of the Tribunal."

I have to confess that this is the area I have had most difficulty with. In so far as the remarks can be interpreted as

saying that when an asylum application has been rejected, what happens thereafter is not a matter for the Refugee

Appeals Tribunal but for others. Then there is nothing objectionable whatever. However, in so far as he might seek to

exclude the possibility that someone who fears persecution as a failed asylum seeker could be a refugee, the matter is

more troubling. The case advanced on this ground, it may be said, was not a particularly strong one. I cannot find

anywhere in the papers that the applicant himself has ever expressed fears about his position as a failed asylum seeker,

as distinct from his position as a returned prison escapee. Neither does the applicant or indeed his advisers seemed to

have addressed the question of whether any difficulties that might face a failed asylum seeker could be overcome by the

simple expedient of a voluntary return. Indeed, it seems that the case that is made in this regard has its roots in research

carried out on the internet by the applicant's lawyers.

However, the strength or weakness of the case, would not seen to have been considered at all, but rather the Tribunal

member seems to have proceeded on the basis that he lacks jurisdiction. In this regard, it seems arguable that he was in

error. Having advanced a case on a particular basis, the applicant was entitled to have it considered. In these

circumstances, I believe that there substantial grounds for challenging the decision and accordingly I propose to grant

leave on this limited basis only.