High Court quashes Refugee Appeals Tribunal decision for failing to consider medical evidence on credibility.

[2015] IEHC 826

THE HIGH COURT

JUDICIAL REVIEW

[2013 No. 6 J.R.]

BETWEEN

I.M. (NIGER)

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY,

REFUGEE APPEALS TRIBUNAL,

IRELAND AND ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice Eagar delivered on the 17th day of December, 2015

1. The applicant seeks leave to apply for judicial review of an appeal decision by the Refugee Appeals Tribunal (hereinafter referred to

as “the Tribunal”) dated 10th October, 2012, affirming the recommendation of the Refugee Applications Commissioner (hereinafter

referred to as “the Commissioner”) that the applicant should not be declared a refugee. This was a telescoped hearing of the

application. The single ground upon which the relief was sought was, as follows:-

(a) The refusal of the applicant’s appeal was arrived at in breach of the minimum procedures laid down by the European

Communities (Eligibility for Protection) Regulations 2006 (S.I. 518/2006) (hereinafter referred to as “the Regulations of

2006”). In particular, and without prejudice, to the generality of the foregoing Article 5(2) of the Regulations of 2006

states:-

“The fact that a protection applicant has already been subject to persecution or serious harm, or to

direct threats of such persecution or such harm, shall be regarded as a serious indication of the

applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good

reasons to consider that such persecution or serious harm will not be repeated, but compelling reasons

arising out of previous persecution or serious harm alone may nevertheless warrant a determination that

the applicant is eligible for protection.”

No consideration of the applicability of this provision was carried out. In circumstances where it is doubtless that the

applicant suffers from severe depression and Post Traumatic Stress Disorder, it is insufficient to dismiss an asylum purely

on the basis of perceived lack of credibility especially where there exists prima facie evidence that the applicant did, in

fact, suffer prior persecution or serious harm, regardless of the precise source of that prior persecution or serious harm.

(b) In the circumstances where the applicant put forward evidence of suffering serious harm or persecution in the past, it

was for the first named respondent to assess same without any doubts recreated by such evidence. No attempt was

made to do this and the decision is invalid.

(c) No proper regard was had to the SPIRASI report furnished the applicant’s legal advisers. No allowance was made for

the possibility that the applicant’s account of his past might be inaccurate in whole or in part by reason of the mental

condition of the applicant. The provisions of paras. 202 – 212 of the UNHCR Handbook were not applied to the applicant’s

case despite evidence that he is a “mentally disturbed person”.

(d) The time taken to assess the applicant’s application for international protection has been manifestly unreasonable

thus invalidating the refusal of the applicant’s appeal.

2. An extension of time was sought and it was conceded by the respondents.

Decision of the second named respondent – the applicant’s claim

3. The applicant was born on 20th October, 1953, in Niger. He is of the Maradi ethnic group. He was a Muslim and has now converted

to Christianity. The applicant suffers from Hepatitis B and liver problems.

4. The applicant stated in his ASY1 Form that he went to the United Kingdom after he was threatened with death in 1997. He applied

for asylum there in 1997 but went back to Niger in the same year and withdrew his application for asylum. He claims that there was a

change of president and he thought it was safe to go back. The applicant claims that the government wanted to kill him because he

protested against the present government. The applicant was involved in giving presentations and holding rallies around the villages

objecting about the manner in which food was being distributed by the government.

5. In his questionnaire, he described himself as being of the Hausa ethnic group (as opposed to Maradi as stated in his ASY1 Form).

The applicant has had the benefit of twelve years education and was employed for over thirty years in the import and export of

goods. The applicant is married and according to his questionnaire has one dependant child.

6. When the applicant arrived in Ireland, he presented a doctor’s certificate in relation to his condition. The applicant has N-stage

renal failure, together with a congestive heart complaint and Hepatitis B.

7. In answer to the question as to why he left his country of origin, he stated that the situation in the Republic of Niger was so

severe that desperate measures were adopted by both domestic and international organisations because of the drought and

incessant and protracted civil war. Food, drugs and other relief materials were being distributed, however, he claims that his people’s

living conditions were not improved.

8. The applicant claims in response to the inequalities in relation to the distribution of supplies, many organisations were formed. One

of them was Nryar Talakawan and Niger (“crying voice of the downtrodden of the country of Niger”). The applicant claims that he was

one of the people who formed this organisation and he was committed to humanitarian services. He claims that the activities of the

organisation were accepted and embraced by the people of Niger but incurred the wrath of the government.

9. He claims that the activities of the organisation were prescribed and its founders, including himself, were arrested, tortured,

maimed and killed. He claims that he was arrested, tortured, and whilst in prison a man injected a poisonous substance into his body,

he claims that this is the cause of his kidney failure and liver and heart problems. He claimed that his house was also burned down.

10. He claims that the problems were so bad that he was forced to flee Niger. At this point he fled to the United Kingdom and sought

asylum. The applicant claims that he was arrested and imprisoned between July 2006 and March 2007. He claims that if he returns his

life will be in danger and they will also kill members of his family believing they share the same views.

11. The applicant attended for a s. 11 interview in October 2007 and at interview, the applicant claims he was caught in a village or

town called Diffa. He claims that the soldiers arrived and took him to prison and he claims that the name of the prison was Central

Prison.

12. The applicant claims he was given injections everyday unnecessarily and that one of the prison guards told him they were giving

him these injections in order to kill him. The applicant remained in prison until 20th April, 2007. He claims he was assisted in escaping

by a group of maybe seven or eight men in uniform.

13. After escaping, the applicant attended a doctor called Dr. H. He claims that this man examined him and gave him an injection, but

did not tell him the type of illness he was suffering from. He had but told him that his condition would mean that he would die if he

remained in the country. The applicant arranged to leave the country. They left on 24th April, 2007, flying to Paris. He did not seek

asylum there because of his condition as he was unwell. He arrived in Ireland on 25th June, 2007.

14. At interview, it was put to the applicant that he had given another name but the applicant claims these were the names on the

document which he travelled under.

15. It was also put to the applicant that there was information that suggested he claimed asylum in the UK in 2000. The applicant

claimed he only sought asylum there in 1997.

16. It was also put to the applicant that according to the documents provided by the UK authorities, he claimed asylum in the UK in

July 1997 not February 1997, as he claims. The applicant claims that he has forgotten many things.

17. It was also put to the applicant that according to the UK documents, his appeal was refused and was heard and dismissed in June

1998. The applicant claims that as he had returned to his country in 1997, he did not have all the information.

18. It was put to the applicant that according to the UK authorities’ information lodged in the asylum claim in March 2000 but made

under the name of Davis, a Nigerian. The applicant claimed he was only there in 1997 and that this was incorrect.

19. According to the United Kingdom authorities, as apparent from the UK Home Office Border and Immigration Agency Report, the

applicant applied for asylum twice in the United Kingdom as a Nigerian.

20. By letter dated 12th June, 2007, the UK Home Office Border and Immigration Agency confirmed that a person with fingerprints

that matched those of the applicant had claimed to be the following person in the United Kingdom:

(i) R.A.; date of birth, 28th October, 1965; nationality, Nigerian;

(ii) M.D.; date of birth, 2nd November, 1959; nationality, Nigerian;

(iii) M.M.; date of birth, not known; nationality, not known.

The third reference was used when the Dutch police made an inquiry to the English authorities to the Consulate in Amsterdam in

October 2000, thus the applicant’s fingerprints again were connected with this particular identity in the Netherlands.

21. The applicant has claimed that his real problems began in 1996. He claims that his people were slaves or descendants of slaves.

He further claimed that they would be taken to farms and would have to work for them with little food and on occasion, no food and

without pay. He claims that in 1996, they were taken to a farm at 4am without any food and they worked until 2pm. At that point,

some people in another area decided that if they did not get food, they did not work. There was a military regime in place at the time

and the soldiers started beating them with whips and they started running in all directions. The applicant claims there was a general

strike in the country and many protests. The applicant claimed that he was in trouble because the Head of State asked who had

started the fight and because the applicant was one of those persons responsible, he was in danger. He claims that during 1996 and

1997, they were in hiding and he claims that they were preaching to raise awareness in other countries. He claims that when they

could not get hold of the applicant, they went to his home, killed his parents, burning his home. It should be noted that the applicant

made no reference to his children being burnt or harmed or killed on this occasion. The applicant confirms that it was the soldiers who

killed his parents.

22. He claims that a man called H. from Nigeria was supporting them, providing food and he helped the applicant to go to the United

Kingdom as they were looking to kill him. The applicant claims that they sought asylum but after a number of days, H. told him there

was a change of government or the Head of State had died and he followed him back home.

23. It was later put to the applicant that at interview he stated that the former dictator, himself, had, in fact, phoned him and told

him that he could come back as he had been cleared of any charges of being implicated and brought against him, and that the

dictator had personally apologised to the applicant for the killing of his parents. The applicant claimed there must have been a

problem with the interpreter and that he had never said such a thing. He claims that H. told him that the Head of State had died that

H. was a very close friend of Head of State and this is why he returned.

24. The applicant made no reference to returning to the United Kingdom at any time. In the interim, he claims that the next problem

started again in 2005. He claims that food assistance in aid was not reaching the people and people were dying and that they started

to regroup. The applicant claims that they put people on the streets before the government could get there and that they could

distribute it to poor people. The applicant claimed the government realised that if they did not they would have trouble and they

started following them. The applicant claims that they would start moving around. How the applicant claimed in his questionnaire that

he was arrested in July 2006 (and released in 2007). At the hearing, the applicant claims he was caught in 2007. This is only a minor

issue, however, according to the second named respondent.

25. The applicant claims that one of his friends sold him out. He claims that when he was captured, he said the Head of State wanted

him and he was taken to jail. He claimed they started pouring water on him. They removed his clothes and tied his hands behind his

back. He claims they would haul him from the ceiling from his feet and beat him and he would be upside down. He claimed that he

would be beaten with whips and sticks all over his body and was beaten and regularly injected. He claims that he was beaten

everyday. He claims that they would inject him so that he would die as a result of the injection. He claims that they were injecting

him with a disease.

26. The applicant was asked a number of detailed questions by his own legal representative in relation to the treatment he alleges he

has suffered during the detention. It should be noted that in any of the previous stages of this process, the applicant referred to

being beaten and injection but never referred to being stripped naked, subjected to water torture or to being hung upside down or to

have his hands tied behind his back, nor to having his genitals interfered with so that he would become aroused then beaten.

27. The second-named respondent noted that a SPIRASI report was being sought by the applicant’s legal representative and it was

queried why this was not done since 2007 as the applicant had the same doctor since then. It was submitted on behalf of the

applicants that it was simply a thing that had fallen through the gaps but the applicant had, in fact, attended Spirasi in late 2009 and

that photographs had been taken and he had been examined. The applicant claims if he returns the government would kill him

because slavery is still ongoing in Niger and they will believe that he wants to empower the masses there and they will kill him.

28. The applicant was asked whether he had any contact with his family. He claims that he had spoken with his wife a month ago. He

was a asked about any children and he explained there was only one child, that they killed them all bar one. The applicant was asked

when this happened. He claims when they went to his house they killed his parents and his children. He claims that three children

were killed at that time. It was put to the applicant that his questionnaire referred to the killing of his parents and cousin and he also

made no mention today of the killing of his children at that time. The applicant claims he did not fill in the questionnaire himself and in

relation to not mentioning it today, he only recollects some things sometimes.

29. It was put to the applicant that he had stated before the Tribunal that the government had changed. In fact, what he had

stated was that the head of state had died and so he returned to his own country in 1997. It was put to the applicant that at

interview he had said something entirely different and he was asked if he remembered what he said. He claims that H. told that the

head of state was dead, it was ok to go back after some weeks. The applicant states that the head of state was H.’s friend. It was

put to the applicant that at interview he had stated the former dictator phoned him personally and told him he could come back and

the applicant stated it was possible that the interpreter did not interpret correctly and he denied everything. The applicant was asked

whether he was mistaken and he stated that the dictator did not call him, did not tell him he could come home, or did not apologise

for the killing of his parents.

30. It was put to the applicant that he had claimed that his group had a lot of contact with aid agencies and yet there was no record

of any existence of this group and it was put to the applicant that it would have been open to him to contact some of these aid

agencies to get a letter of referral or confirming that they had in fact contacted with this group, support his case. The applicant

claimed that these groups were not registered but that everyone in Niger would know of them. There were also questions put to the

applicant about coming to the Netherlands.

31. Written submissions were presented on behalf of the applicant under cover of a letter dated 10th of September, 2012. One of the

written submissions was a reference made to a letter from Mr. David Hickey, the Director of Transplantation Urology and Nephrology

Services, from Beaumont Hospital dated the 11th March, 2011, which points out that from a medical point of view returning the

applicant to Niger would in fact amount to a death sentence, because the treatment that he requires will not be available to him if he

is returned there. In other words without the treatment that he requires, the applicant would have a very short life expectancy.

32. It was also submitted that the country of origin information supports the fact that there was torture of detainees in Niger and,

while constitutional law prohibits arbitrary arrest and detention, police in practice ignore the provisions. It was also submitted that

any assessment of state protection is irrelevant as the applicant claims to fear the state apparatus and internal relocation was also

not an option given that he feared the state. The second-named respondent noted that there was no reference in the country of

origin information to support any contention that the applicant, on any basis, would be discriminated against in the provision of health

care if returned to Niger.

33. The Presenting Officer pointed out that the applicant had been untruthful in the manners identified above and this affected his

overall credibility. The Presenting Officer said there were a number of areas in which the applicant’s account was called into question

as he had made no reference to the Tribunal as to his children’s death, yet this was arguably one of the worst things that could

happen to a parent in one’s life. He also pointed out that the phone call from the dictator was now being denied there was not any

record of this group that the applicant claimed to be involved with.

34. The second-named respondent noted that by letter dated 19th September, 2012, the SPIRASI report was submitted and the date

of assessment was 27th April, 2010. The second-named respondent noted that while the applicant claims that when the authorities

could not get hold of the applicant they went to his house and killed his parents, burning his home, and confirmed that it was the

soldiers who killed his parents. The SPIRASI report refers to them dying from violence under a previous regime. She also noted that he

claims that his problems arose because of his political opposition effectively, in the SPIRASI report it is recorded that he stated the

authority to realise that he was not paying tax on stocks. His arrest occurred at a mud house when a stranger came up and identified

him as a friend of the applicant’s then host, the applicant confided in him. The man excused himself and then went back shortly with

about a dozen soldiers.

35. She also noted that there was no reference in the SPIRASI report to the applicant being stripped naked, being subjected to water

being poured over him, or to having his genitals interfered with so that he would become aroused and then beaten, and the second-

named respondent said that the applicant had made no mention of these aspects of his torture to the SPIRASI examiner (noting that

the assessment took 2 ½ hours). The SPIRASI report also notes the existence of non-latrogenic scars allegedly caused by the actions

of the Niger authorities. It was found that these scars were consistent with injury in the manner alleged over many other possibilities

and the report concluded that the evidence of having been injected with an unknown substance is an adequate explanation for the

renal failure and hepatitis B and that a physical examination was highly consistent with the stories told and the applicant remains a

very ill man in need of care.

Analysis of the applicant’s claim

36. The second-named respondent said that she found the applicant’s account to be lacking in credibility for the reasons that had

been identified in the interviews. She did not find the applicant’s attempt to role back on previous evidence and previous denials at

hearing to be truthful. She dealt with the various travels by the applicant to the United Kingdom and to the Netherlands and noted

that whenever there was a problem the applicant claimed that perhaps the interpreter did not understand him but there had never

been any complaint about the interpreter and the applicant had signed the bottom of every sheet of the interview notes when read

back to him.

37. The second-named respondent found it strange that if this group is as widespread as the applicant claims it was, there would be

absolutely no record of it at all in any country of origin information. He said she did not believe there was such group and that if it did

have contact with the agencies claimed it did there would be reference to it.

38. The second-named respondent held that that she was not willing to accept that the applicant was tortured in the manner he

alleged he was for the reason he alleged he was. She says it was possible the applicant received the ill-treatment that he did

however she wanted to point out the implausibility. She states,

“the Applicant claims that he was beaten every day and that the authorities injected him regularly with a disease so that

he would die from the disease and that no one would ever find out that he had been beaten to death, however this

makes no sense whatsoever. The Applicant is now claiming there are marks all over his body which show that he was

beaten and that if this was indeed the case, then this would in any event have been evident. The SPIRASI report refers

to many scars, the cause of which was dialysis and surgery and others consistent with latrogenic procedures.”

She also queried how someone who was regularly injected with an infectious disease did not show signs of it prior to leaving prison. If

the applicant was indeed being injected from the very beginning with such an infectious disease, she queried why he did not require

medical attention while in detention. She said she noted the SPIRASI report referred to a series of letters or documents, all of which

have not been provided to the Tribunal. The SPIRASI report does not detract from the negative credibility findings and she then

indicated that going from an objective viewpoint, she can certainly conclude that the applicant would probably die if he returned to

Niger, as the level of medical care that he has benefited from her will likely not be available to him in Niger but she said that this was

a matter for another Tribunal and she affirmed the recommendation of the Refugee Applications Commissioner made in accordance

with s. 13 of the Act.

Submissions on behalf of the applicant

39. Michael Lynn S.C. (with Paul O’Shea B.L.) opened the applicant’s submissions by stating what he described as a well-established

principle of refugee law:

“untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner’s responsibility to

evaluate such statements in the light of all the circumstances of the case.”

This is an extract from para. 199 of the UNHCR Handbook on procedures and criteria for determining refugee status.

40. Counsel on behalf of the applicant accepted that a number of adverse credibility findings were made against the applicant by the

Refugee Appeals Tribunal which are not susceptible to challenging judicial review. However a SPIRASI report provided important

evidential support for his account of past persecution. He submitted that the report was not addressed by the Tribunal in a fair and

lawful manner. He said in general that the applicant’s appeal was refused on the basis of a general negative assessment of his

credibility. This assessment was based on a number of adverse credibility inferences or findings and he said that what was at issue in

the proceedings was (a) the failure of the Tribunal to apply and weigh in a lawful manner the supporting SPIRASI report which was

submitted in the course of the applicant’s appeal and which had a bearing on the issue of the credibility of his account of past

persecution and (b) as a consequence of the failure of the Tribunal to make a fair assessment of whether the applicant had been

subjected to past persecution such as to warrant a granting of his appeal pursuant to Regulation 5 (2) of S.I. 518 (2006). Mr. Lynn

cited the quotation in the conclusion of the SPIRASI report:

“It is my opinion that the physical examination was highly consistent with the story told. His limited musculoskeletal

function and gave a consistent degree of evidence that his general body was punished as described. He described very

haphazard injecting of poison into his body by a person with no medical orientation. That is adequate explanation for both

the renal failure and the hepatitis B. The heart disease may or may not be an independent factor; any comment on mitral

valve disease and torture is outside my area of competence. It is of course very clear that I.M. remains a very ill man and

is in need of medical care beyond what is reasonable to expect the country of Niger to provide him.

It is also my opinion that the mental health assessment was also highly consistent with the story told. Mr. M. declared

innocence and perplexity in respect of his misfortune and described a mental profile of posttraumatic stress disorder. The

items are listed above. Mood dysfunction is a well-recognised feature of PTSD as is interference with cognition. It is my

view that the critical physical illness may have blurred the PTSD profile in Mr. M.’s case but the BDI score of 41 testified

to the severity of his depressed mood. Chemical treatment of his moods has been rendered difficult by his medical state

and will remain under review by his experts.”

41. Mr. Lynn describes the Tribunal’s dealing with the SPIRASI report as terse, and he stated that no reasons were given as to the

basis for holding that the SPIRASI report “does not distract from the negative credibility findings.” He also complained that no or no

cogent assessment was made of the independent expert evidence based on a clinical examination of the applicant as both his

physical condition and his mental state were highly consistent with his account of persecution.

42. There was independent expert evidence before the Tribunal which was strongly corroborative of the applicant’s account of past

persecution yet the Tribunal dismissed the SPIRASI report as in effect having no influence on the negative credibility findings already

made by the Tribunal. Counsel complained there were no reasons given for this dismissal of the SPIRASI report. Reference was made

to letters or documents being referred to in the SPIRASI report which the Tribunal remarked were not forwarded to the Tribunal.

Counsel criticised the second-named respondent for not seeking the document if any finding was to be made on that basis. Mr. Lynn

referred to jurisprudence starting in April 2007 and finishing in July 2015 where a Tribunal’s failure to have sufficient regard for medical

evidence with a direct bearing on the applicant’s case and/or its failure to provide a cogent reason for such medical evidence renders

the Tribunal decision unlawful. He referred in particular to A.M.N. v. the Refugee Appeals Tribunal, a decision of McDermott J. on the

3rd August, 2012. It was a case similar to this case as there were negative credibility findings. He also cited the decision of Stewart

J. in A.T. (DRC) v. the Minister for Justice & Equality [The High Court, 23rd July 2015].

Submissions on behalf of the respondents

43. Ms. Ann Harnett O’Connor B.L. made a submission that Article 5 (2) of the 2006 Regulations provides as follows:

“The fact that a protection applicant has already been subjected to persecution or serious harm or to direct threats of

such persecution or such harm shall be regarded as a serious indication of the applicant’s well-founded fear of persecution

or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will

not be repeated for compelling reasons arising out of previous prosecution or serious harm, though, may never the less

warrant a determination that the applicant is eligible for protection.”

44. She stated that where in this case, Article 5 (2) becomes operational and where compelling reasons are proffered in such

circumstances, there would appear to be an onus on the decision maker to consider whether the reasons are so compelling as to

warrant a determination that the applicant should be given the protection of this state, either as a refugee or by way of subsidiary

protection.

45. Ms. Harnett O’Connor submitted the Tribunal did not believe the applicant and such past persecution was not accepted as having

occurred and quoted from N.B. v. the Minister for Justice Equality & Law Reform, a decision of Faherty J. [2015] IEHC 267.

46. Counsel submitted that the second-named respondent did indeed assess the applicant’s evidence of suffering persecution and

determined that there were too many holes in the applicant’s evidence of suffering persecution and determined that there were too

many holes in the applicant’s evidence for her to apply the benefit of the doubt.

47. She also submitted that the second-named respondent clearly had regard to the SPIRASI report. There was evidence that the

applicant had scaring on his body, the most prominent of this being, according to the SPIRASI report submitted in September 2012

and based on a medical examination in April 2010, latrogenic. The remaining scars were considered by the author of the SPIRASI

report to be consistent both the history of repeated beatings and with many other possibilities. The categorisation of a scar as

consistent is at the lower end of the Istanbul Protocol. Paragraph 187 (b) of the Protocol defines its meaning as:

“The lesion could have been caused by the trauma described but it is non-specific and there are many other possible

causes.”

48. She submitted that the SPIRASI report is internally inconsistent as the author goes on to state that the events that the applicant

describes satisfy the Istanbul criteria of torture, and then states that the physical examination was highly consistent with the story

told, which is not consistent with the finding in regard to the scarring. Dr. Ennis then goes on to say that the applicant’s

musculoskeletal function and gave a consistent degree of evidence that his body was punished as described and that the very

haphazard injection of poison into his body as described by the applicant was adequate as an explanation for both the renal failure

and the hebatitis B. Neither of the latter descriptions nor the earlier one is equivalent to a finding of “highly consistent”. It was clear

from the report of the second-named respondent that the SPIRASI report was considered and that she came to the conclusion that it

did not detract from the negative credibility findings made by her. She quoted the decision of Stewart J. in A.G.G.R.C. v. the Minister

for Justice & Ors. [previously cited]. The court found there was no evidence from the decision of the Tribunal in that case that the

SPIRASI report and its contents had been engaged with. These cases, counsel submitted, required that the Tribunal deal with or

engage with and refer to the medical report and state why the Tribunal does not accept the report. In the instant case, she argued

that the Tribunal has done so and that the requirement is not that the Tribunal should take each and every finding in the report and

negate it.

Discussion

49. The only issue in relation to this case is how the second-named respondent dealt with the findings of Dr. Kieran Ennis provided in

the SPIRASI report. Dr. Ennis first of all lists documents used in compiling the report. It would have been more helpful for the solicitor

who acted for I.M. to submit all of the documents which Dr. Ennis used in compiling the report and in particular the letter from

Professor Conlon and the letters from Beaumont Hospital, and a letter from Dr. Keane to Dr. Ennis dated the 23rd August 2007. If any

of those documents are in the possession of the solicitor for the applicant these should have been forwarded to the second-named

respondent. However the second named respondent could have sought this documentation but failed to do so.

50. The second-named respondent said in her ruling that she was not willing to accept that the applicant was tortured in the manner

he alleged he was for the reasons he alleged. She points out that the applicant claimed that he was beaten every day and that the

authorities injected him regularly with the disease so that he would die from the disease. She referred to the SPIRASI report referring

to many scars the cause of which was dialysis and surgery and others consistent with latrogenic procedures. However the SPIRASI

report also lists some scars and injuries and Dr. Ennis indicated that this was consistent with both the history of repeated beatings

and many other possibilities. The second-named respondent does not refer to these aspects of the report of Dr. Ennis. Rather that

she does query as somebody who has regularly injected with the disease did not show signs of it prior to leaving prison. However the

reality from the point of view of the evidence was that within three or four days of leaving the prison the applicant had arrived in

Ireland and was admitted to hospital.

51. There have been a substantial number of authorities in relation to the obligation of how SPIRASI reports ought to be treated by

the Refugee Applications Tribunal. In G.L.A. v. the Minister for Justice Equality & Law Reform & Anor. [2013] IEHC 84 MacEochaidh J.

reviewed many of the decisions starting off with the decision of McMenamin J. in Kahzadi v. the Minister for Justice Equality & Law

Reform [unreported, 2nd May 2006]. This was an application for leave, and a substantive hearing in this case was decided by Gilligan

J. on the 19th April, 2007 when Gilligan J. quashed the decision and said:

“Now, I take the view in the circumstances that arise that the Tribunal Member in considering any assessment of the

Applicant’s credibility was required to consider, as part of his deliberations, the medical evidence in total that was before

him and was obliged as part of a rational analysis to explain having considered the medical evidence along with the other

evidence that was before him why in the view of the Tribunal Member the Applicant was not telling the truth and his

credibility was undermined.”

He continued:

“My overall conclusion is that the medical evidence that was before the Tribunal Member should have been considered,

weighed in the balance and a rational explanation given as to why it was being rejected in circumstances where the

Tribunal Member was making a finding that the Applicant was not credible.”

He referred to a decision to which this court was directed to, A.M.N. v. the Refugee Appeals Commissioner [2012] IEHC 393, a

decision of McDermott J. In this case the SPIRASI report stated that the conditions were consistent with the history given the prison

condition described in that case. It also deals with lacerations which were consistent with the history. The doctor in question

concluded that the findings of the physical examination were “overall consistent to highly consistent with the history” and she also

assessed the state of the applicant’s mental health. MacDermott J. dealt with Istanbul Protocol in which “consistent with” is

described as: “the lesion could have been caused by the trauma described but it is non-specific and there are many other possible

causes” and “highly consistent” he describes as: “the lesion could have been caused by the trauma described and there are few

other possible causes.”

MacDermott J., in discussing the issue, stated that:

“However, while medical reports are rarely capable of providing clear corroboration of a claim, it is well recognised that

there are occasions when examining physicians report on objective findings and use phrases which attach a high

probative value to those findings.”

52. Counsel for the respondents stated that as in the A.M.N. case, there was a confusion within Dr. Ennis’s report as to what was

“consistent” and “highly consistent”. However this issue was not dealt with by the Tribunal member and in particular the Tribunal

member did not refer to dealing with the mental health assessment which he says is highly consistent with the story told and he also

refers to a physical examination which is highly consistent with the story told.

Decision

53. This Court is satisfied that the law is set out in A.M.N. [previously cited] and G.L.A. [previously cited]. The Court concludes that

the second-named respondent had erred in law in failing to describe what significance was attached to the medical report and if

significance was attached to it, why it was discounted.

54. This Court also finds that it was open to the second-named respondent to seek from the solicitors the documents which Dr. Ennis

had apart from the documents relevant to the application for refugee status.

55. As this is a telescoped hearing for leave to apply for certiorari, I will grant the leave application and make an order quashing the

decision of the second-named respondent and direct that the appeal of the applicant be dealt with by a separate member of the

Refugee Appeals Tribunal.

56. I would also make a recommendation that the solicitors for the applicant provide all the medical reports and letters to the Refugee

Appeals Tribunal.