Judgment Title: O. & Anor -v- Refugee Appeals Tribunal & Anor
Composition of Court:
Judgment by: Cooke J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 501
THE HIGH COURT
2008 238 JR
A.O. AND D.B. (A MINOR SUING BY HIS MOTHER
AND NEXT FRIEND A.O.)
REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
JUDGMENT of Mr Justice Cooke delivered on the 25th day of November, 2009
The Credibility Issue
“She claims she worked for a newspaper called “La Manchette’ and that it was published everyday. This was contradicted by country of origin information referred to in the section 13 report and when the contradiction was put to the applicant at her oral hearing, she was vague, unconvincing and left the Tribunal with the distinct impression that she had little, if any, dealings with this newspaper despite assertions that she worked for it for three years. This fundamentally undermines the applicant’s claim because the rest of her evidence centred around this newspaper and her alleged involvement with the man called R.B.E. who was a journalist for the same newspaper. It is widely reported that the said R.B.E. was kidnapped in or around 13th December, 2005.”
8. Although the Tribunal Member thus seems to attach some weight to this issue as to the publication frequency of the newspaper, it is clear that it is not the sole basis for the rejection of the applicant’s story as incredible. A number of other issues are identified as follows:-
• She had been asked if anyone else from the paper had been arrested and she had said “no”: country of origin information on the other hand indicated that the publisher and a director of the paper had been arrested in March, 2005.
• It was doubted whether she had in fact been really involved with R.B.E. as it had been widely reported that this man had been kidnapped on 13th December, 2005;
• Considerable disbelief was expressed about her claim to have been kidnapped and detained. She was repeatedly asked why she thought she had been released but could give no explanation:
• She was not believed when she described how people she did not know brought her to the house or how her child who had been kidnapped with her partner when arrested managed to arrive at the house. She was vague about the occupants of the house and did not know where her child had been for the preceding three months.
• She said she left the DRC on 12th June, 2006 and had a birth certificate. This, she said, had been given to her by a woman living in the house but she did not know how the woman had obtained it. The birth certificate bore the date 12th June, 2006.
• She had described how, while in detention, she had been brought to a place of execution with two others who were shot in front of her. She could not explain why the soldiers would release her when she had witnessed the shooting of the two others.
9. The Tribunal Member concludes:
“Regarding all of the evidence provided by the applicant – including documentation – and assessing the manner in which the evidence was delivered and her overall demeanour, the Tribunal is satisfied that the alleged connection with La Manchette is contrived, implausible and not credible. The Tribunal has considered the submission made in relation to failed asylum seekers and restates the function of the Tribunal as outlined in the 1996 Act, as amended. It is the responsibility of the appropriate Minister of Government to deal with the outcome of any decision from the Refugee Appeals Tribunal.”
10. There is therefore a very clear and definitive finding by the Tribunal Member that the applicant’s claim could not be believed. While there was some ambiguity about the evidence as to whether La Manchette was a daily or twice weekly paper or, perhaps, one that had been twice weekly but had become a daily paper, the Court does not consider that any discrepancy in the way in which the Tribunal Member appears to have dealt with that specific issue (he seems to have assumed the country of origin information was the more reliable,) is sufficient to vitiate the reliance placed on the overriding weight of the other aspects of the account which are found to be incredible. The points thus identified as implausible and incredible arise logically and obviously out of the account as given and do not appear to have involved any element of conjecture or speculation on the part of the Tribunal Member. This is not, therefore, a finding on credibility which could be upset by the court as being perverse, irrational or unreasonable given the implausibility of the various aspects of the account identified by the Tribunal Member.
The returned asylum seeker ground
“The Tribunal has considered the submission made in relation to failed asylum seekers and re-states the function of the Tribunal as outlined in the 1996 Act, as amended. It is the responsibility of the appropriate Minister of government to deal with the outcome of any decision from the Refugee Appeals Tribunal.”
13. This matter was raised for the first time in the additional grounds of appeal lodged on 2nd October, 2007. In support of the argument, two particular documents were relied upon. Neither appears to come within the description of “country of origin information” in the sense in which that term is most frequently used namely, authoritative reports on political, social, administrative or economic conditions prevailing in a country from which refugees are in flight and issued by some government service or international agency.
“As individuals who have claimed asylum in Europe, deportees are automatically regarded by the ANR as threats to national security in Congo. Simply because they have claimed asylum in the West, Congolese authorities consider them political dissidents.”
17. It is not necessary on this application for leave to decide whether these accusations are well founded or whether the documents in question constitute reliable sources of information about the DRC as a country of origin or that they are representative of the contents of other more authoritative sources. If those matters fall to be decided, they must first be examined by the administrative decision maker and if necessary by recourse to appropriate enquiries carried out under s. 16 (6) of the 1996 Act.
“Of those who cannot bribe their way out, many will be handed over to the national security agency (ANR) which operates its own extra judicial prisons where people are detained illegally for long periods of time. As individuals who have claimed asylum in Europe, deportees are automatically regarded by the ANR as threats to national security in Congo. Simply because they have claimed asylum in the West, the Congolese authorities consider them political dissidents.”
26. Notwithstanding, therefore, some possible reservations as to the lack of authoritative status and objectivity in the two documents relied upon, the Court considers that the contents, taken together, were sufficient to put the Tribunal Member on inquiry as to whether, if regard was had to more contemporaneous and authoritative source material, the applicant’s claimed fear of persecution as a returned asylum seeker might come within the definition on the basis of imputed political opinion as the pretext for a systematic treatment of such persons in the DRC.
“This definition includes characteristics which are historical and therefore cannot be changed and those which, though it is possible to change them, ought not to be required to be changed because they are so closely linked to the identity of the person or are an expression of fundamental human rights. If a claimant alleges a social group that is based on a characteristic determined to be neither unalterable nor fundamental, further analysis should be undertaken to determine whether the group is nonetheless perceived as a cognisable group in that society. So, for example, if it were determined that owning a shop or participating in a certain occupation in a particular society is neither unchangeable nor a fundamental aspect of human identity, a shopkeeper or members of a particular profession might nonetheless constitute a particular social group if in the society they are recognised as a group which sets them apart.”
31. It is therefore arguable that, independently of any element of imputed political opinion, a group comprised of young men of military age liable for military service could, on the basis of appropriate evidence, be demonstrated to be regarded in a particular society as a recognised social group which sets them apart. Similarly, there does not appear to be any reason of principle why, again on the basis of appropriate evidence, it might not be established that in a particular society, returning failed asylum seekers were regarded as a distinct group. Furthermore, having applied for asylum abroad and failed, that characteristic of their status would obviously be incapable of change in the sense that it is an historical fact of their lives just as a person could not undo the fact of having been married and divorced or having fought in a foreign war.
“ The decision of the Tribunal of 27th January, 2008 is wrong in law in refusing to examine and consider as outside its jurisdiction, the applicant’s claim to be a refugee within the meaning of the definition of that term is s. 2 of the Refugee Act 1996 (as amended) on the basis of her claim to fear persecution if returned to the Democratic Republic of Congo on the ground of imputed political opinion or, alternatively, as a member of a particular social group comprised of returning failed asylum seekers.”
36. The costs of the present application will be reserved.