Judgment Title: Nanizaya -v- The Minister for Justice and Equality
Neutral Citation:  IEHC 126
High Court Record Number: 2011 533JR
Date of Delivery: 23/03/2012
Court: High Court
Composition of Court:
Judgment by: Cross J.
Status of Judgment: Approved
Neutral Citation 2012 [IEHC] 126
THE HIGH COURT
[2011 No. 533 J.R.]
THE MINISTER FOR JUSTICE AND EQUALITY
JUDGMENT of Mr. Justice Cross delivered on the 23rd day of March, 2012 Introduction
1. The applicant is a national of the Democratic Republic of Congo and appears to have arrived in the State in June, 2008. He applied for asylum on the 12th June, 2008, basing his claim on his alleged membership of the Bunda di Congo (BDK) and the risk of persecution on the basis of his return to the DRC.
2. The applicant's application was rejected by the Refugee Applications Commissioner who found that he submitted documents which appeared to be false and the credibility of the applicant was rejected by the ORAC on a large number of grounds.
3. The applicant appealed to the Refugees Appeals Tribunal (RAT) and again his account was disbelieved and rejected as incredible. The RAT also took into account the fact that the applicant claimed to have travelled through France on his way to Ireland but had failed to claim asylum there without explanation.
4. The RAT considered a SPIRASI Medical Report dated the 20th December, 2008, and the Tribunal Member concluded that the inconsistencies and credibility issues arising in the applicant's evidence were such that they were not explained by his medical condition and that the medical report relied upon the applicant's account for the reasons for his difficulties and for its conclusions.
5. The RAT summarised its conclusions by saying:-
7. By decision of the 29th March, 2011, the Minister rejected the application for subsidiary protection and the decision maker specifically relied upon the Tribunal's decision when considering the applicant's personal credibility.
8. Leave for judicial review was granted by order of Birmingham J. dated the 4th July, 2011, and the applicant's objections to the decision were, in essence, very simple:-
10. This, it is submitted, is a breach of the requirement of Article 4(1) of the Council Directive 2004/83/EC, which requires protection decision makers to decide "in co operation with" the applicant in order to assess the relevant elements of the application. It is further submitted that the failure of the respondent to furnish the COI report to the applicant meant that the applicant did not know the information upon which the Minister relied and that there was a breach of fair procedures. The third ground on this point is that the Minister's failure to furnish this document to the applicant is a breach of the principle of "equivalence" in that the RAT is obliged by virtue of s. 16 of the Act to furnish all documents considered to an applicant and if the Minister failed to do this and if there is no requirement on him to do this, then there is a breach of the principle of equivalence.
11. A further ground of complaint by the applicant which is separate from the above is the allegation that the decision maker failed to consider the contents of the applicant's SPIRASI Medical Report which indicated that the applicant had both mental and health problems and physical marks "consistent to highly consistent" with torture. In the premise it is alleged that the Minister failed in his obligation to consider all relevant statements and documents submitted by the applicant in accordance with the mandatory requirements of Regulation 5(1)(b) of the 2006 Regulations.
12. The claim in relation to the medical report is separate and I shall deal with that first and then deal with the other grounds subsequently.
The Medical Report
14. The doctor also found a non-specific area of tenderness in his upper back without limitation of movement or signs of muscle atrophy which was non-specific but he stated common in survivors of torture.
15. In relation to the applicant's mental health the doctor diagnosed post-traumatic stress disorder involving signs of intrusive memories, recurrent nightmares, emotional numbing, irritability, outbursts of anger, inability to remember parts of his traumatic experience, loss of trust in people, sense of guilt and shame.
16. The doctor concluded that the findings of the mental state examination "are highly consistent with the history of ill-treatment while in detention, the loss of family members and of the alleged history of prolonged state of fear and worry for his and his family's safety while forced to act as an informer between the two periods of detention". The doctor concluded that it was her professional opinion that "the physical and mental state examination is consistent to highly consistent with the history".
17. On the face of it that is a strong medical report. The difficulty from the applicant's point of view is that the physical examination is stated to be "consistent". It is the mental health. examination that is stated to be "highly consistent".
18. Far greater weight will of course be placed to medical examinations of a physical nature finding that physical marks and signs are highly consistent rather than psychiatric conclusions.
19. A doctor does not usually assess the credibility of an applicant, it is not usually appropriate for him to do so in respect of a patient or client. It is the task of the fact finder to assess credibility. For physical conditions to be mainly consistent with what is said by an applicant does no more, in the view of the court, than have the effect of not negating the claim- see Eduardo v. Refugee Appeals Tribunal (Unreported, High Court, Cooke J., 16th March, 2010). The Istanbul Protocol gives a hierarchy of terms to be used by physicians to indicate the degree of consistency between a lesion or patterns of lesions and the attribution given to it and defines "consistent with" as being "could have been caused by the trauma described, but it is non-specific and there are many other possible causes". The Protocol further describes "highly consistent" as being "could have been caused by the trauma described, and there are a few other possible causes". It is clear that the term "highly consistent" is much stronger than "consistent". However, in this case when one examines the SPIRASI Report the term "highly consistent" is used in respect of the psychiatric complaints of the applicant which is outside the terms of the Protocol. Indeed, the doctor says that they are "highly consistent" with the history of ill-treatment and other matters which she lists e.g., loss of family members etc, etc.
20. In any event, because of the conclusions reached by the RAT that the applicant was entirely incredible in the story that he gave, did not give weight to the SPIRASI Report or conclude that it had afforded the applicant the benefit of any doubt.
21. The applicant contends that the decision maker in the subsidiary protection made no reference to the medical situation in his reasoning.
22. It is true that the only reference to the SPIRASI or medical report is in the oblique fashion that the decision maker listed the fact that he had considered all of the documents referred to the RAT for its decision and this would have, of course, included the medical report.
23. In the absence of any evidence that the Minister had not considered the medical report, he is not obliged to specifically list the medical report but it is submitted on behalf of the applicant that the medical report ought to have been considered in view of the provisions of Regulation 5 and, in particular, Regulation 5(2).
24. It is correct that the respondent's submits that specific leave was not granted or sought in respect of Regulation 5(2) but I believe that the applicant is entitled to make the argument in relation to the obligations of the decision maker under Regulation 5(2) as part of the leave that has been granted in respect of the medical report issue. Certainly I would not in this case fault the applicant on any failure to specifically refer to Regulation 5(2) in seeking leave.
25. The decision maker is obliged under Regulation 5(2) to consider whether the fact that:-
27. The applicant's account of his past life was rejected on entirely rational and reasonable grounds by the ORAC and the RAT. His credibility was entirely disputed. Accordingly, the case is not equivalent in any way to that of R.C. v. Sweden (41827/07) (9th March, 2010) (ECHR) or that of Mibanga v. Secretary of State for Home Development  EWCA Civ 367, but is far more akin to the case of S. v. Secretary of State for Home Development  lmm. A.R. 1, as in both the R.C. v. Sweden and Mibanga cases there was finding of defective reasoning by the decision maker in relation to credibility and ignoring of powerful medical reports. Accordingly, it is not the view of the court that this case falls into any of the above exceptional circumstances in which the decision maker is to be criticised for failing to specifically refer to the medical report,
28. The reasoning of the Minister in his decision is quite clear that there is nothing before him that would alter the conclusions previously arrived at in the ORAC and RAT that entirely discredited the applicant's credibility. He did not refer to the Report in his decision but in the circumstances of this case given the strong credibility findings, he was not obliged to do so.
29. If that decision was reasonable and rational (which l believe it was), then Regulation 5(2) does not arise at all.
30. As Cooke J. stated in Pamba v. Refugee Appeals Tribunal  I 040 J.R. (19th May, 2009):-
32. Accordingly, I would reject the applicant's grounds of judicial review on this point.
The Issue of Fair Procedures
34. In particular I believe that this issue revolves around the issue of fair procedures.
35. In Victor Nendah v. Minister for Justice and Law Reform & the Refugee Appeals Tribunal (Cooke J., 16th February, 2012) (2011 No. 95 J.R.), Cooke J. stated:-
37. Indeed, the case of Nendah (above) not alone comprehensively rejected arguments based on equivalence but rejected it on the basis of a extensive examination of existing High Court authorities in which a number of different nuances on this point had been explored and rejected.
Duty for Co-operation/Fair Procedures
21. It must also be borne in mind that a claim of non-compliance with such a duty of "co-operation" or the principle audi alteram partem cannot be made as a purely academic point divorced from specific facts"
40. In asserting this case and the fact that the applicant's own COI documents submitted in relation to indiscriminate violence were not specifically referred to by the decision maker, it should be stated that the Minister has an obligation to consider most recent COI in relation to applications for subsidiary protection. If he failed to do so, he could be criticised. The document considered by the Minister under the heading was in fact an updated version of the main document submitted to the Minister (UN Security Council Documents) and accordingly, it was not new or different documentation. Under the heading of "serious and individual threat to the civilian's life or person, by reason of Indiscriminate Violence in situation of international or internal armed conflict" the applicant submitted a number of human rights reports which indicated serious and ongoing violence which might well be described as indiscriminate violence in the Eastern and Northern regions of Congo. It is always open until the decision maker makes his decision for an applicant for subsidiary protection to furnish new documentation. The applicant indeed has an obligation to prove his case and the decision maker when furnishing his decision sourced the most recent COT from the United Nations Security Council, which indicated that the overall situation in most of the DRC remained "relatively stable'.' however there was conflict in the Eastern part of the country.
41. The Minister concluded, not unreasonably, that "outside of the Eastern regions of the country most of the Democratic Republic of Congo remains free of armed conflict", and after analysing the decision of Elgafaji v. ML. concerning what amounted to indiscriminate violence the decision maker concluded that the evidence "does not support a conclusion that levels of indiscriminate violence are so high in many parts of the Democratic Republic of Congo that anyone returned to many parts of that country would be at risk from indiscriminate violence".
42. The decision maker went on then to consider in each case the individual circumstances of the applicant to ascertain whether he personally would be of any real risk of violence and the decision maker concluded that he would not.
43. In Ahmed v. MJELR Birmingham J., (24th March, 2011) dealt with a very similar point as now being raised by the applicant and stated:-
18. In my view there is no general obligation on the decision maker to return to an applicant and inform him or her what documentation has been sourced. The applicant is aware of the task facing the decision maker and must expect that he or she will prepare themselves by making sure that they are fully up to date. However, I would emphasise that while that may be the general position, one can certainly envisage that there may be particular cases where a document sourced late in the procedure has the capacity to alter radically the entire basis of the application; which would require that contact be made with the applicant. Again one could imagine that if it were the situation that a decision make had access to a stream of information which was not publicly available but was in conflict with publicly available material then different considerations might arise. However, nothing of the sort is in issue here the question of whether the applicant could safely locate in any part of Iraq was always going to an issue and indeed that that was so, was anticipated by the applicant. The documents assessed by the official are publicly available and form part of a series of contrary reports that are referred to constantly, in the course of asylum cases and related cases."
45. Accordingly, the court is not of the view that the decision of Cooke J. in B.J.S.A. (Akila) v. MJE & Ors (above) in any way alters the position advanced by Birmingham J. in Ahmed (above). The principle of audi alteram partem would apply if the Minister got into his possession private documents or indeed entirely new documents, which radically altered the situation claimed in relation to indiscriminate violence etc, as submitted by the applicant. The document actually referred to by the Minister in his decision is not "new facts, information or documentation not previously examined" but rather is a updating of previous documentation furnished by the applicant. Had the Minister merely examined the applicant's COI information dealing with indiscriminate violence and concluded that there was no basis for indiscriminate violence, then that decision would have been entirely unimpeachable as the COI submitted by the applicant could, and I believe would, have led to the conclusion that apart from the east and parts of the north of the DRC there was equally no basis for any conclusion of indiscriminate violence. What the Minister has in this decision done is gone further and produced up to date versions of the same information which has indicated some improvement in the DRC but is not "new information" that would require in the interests of natural or other justice the applicant to be informed of the documents and required to comment upon them. Accordingly, no issue of want of fair procedure arises in this case.