Judgment Title: M.T.T.K (Democratic Republic of Congo -v- Refugee Appeals Tribunal & Ors
Neutral Citation: 2012 IEHC 155
High Court Record Number: 2008 1337 JR
Date of Delivery: 20/04/2012
Court: High Court
Composition of Court:
Judgment by: Cross J.
Status of Judgment: Approved
Neutral Citation 2012 [IEHC] 155
THE HIGH COURT
[2008 No. 1337 J.R.]
M.T.T.K. (DEMOCRATIC REPUBLIC OF CONGO)
REFUGEE APPEALS TRIBUNAL
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
JUDGMENT of Mr. Justice Kevin Cross delivered the 20th day of April. 2012
1. This is an application for judicial review of the decision of the Refugee Appeals Tribunal (RAT) dated 29th October, 2008, which affirmed the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicant should not be granted a declaration of refugee status. Leave was granted by Hogan J. on 17th November, 2011, on a number of grounds that centred on the following three issues:-
(b) the risk arising to the applicant by virtue of his position as a failed asylum seeker; and
(c) any benefit that the applicant is derived from the South African immigration system by virtue of his marriage to a citizen of that country.
4. The applicant based his application on a fear of persecution arising from reasons of race, imputed political opinion and members of a particular social group. He alleged that he is of mixed ethnicity as his father was Congolese and Lulua ethnicity and his mother is a Rwandan of mixed Tutsi ethnicity. In the DRC, some would view the applicant as Tutsi or as having Rwandan connections.
5. The applicant claimed that in 2004 that he was arrested by the authorities in the DRC and accused of being a supporter of the Rwandan government/militia and spent two months in jail during which time he was tortured. He then alleged that he escaped when the Rwandan militia attacked the place of detention.
6. The applicant claims that he went to Rwanda but was arrested there as he had no J.D. documents. He claims he was detained in that country until January 2006, until his uncle made arrangements with a police officer to have him released. Thereafter, he travelled to Ireland via a number of countries.
7. The ORAC made a recommendation on 17th October, 2006, which was communicated to the applicant on 28th December, 2006, that he should not be declared to be a refugee and thereafter, the applicant appealed to the RAT. The RAT rejected the appeal as it did not believe the applicant's narrative.
The Applicant's Submissions
9. The applicant submitted that if someone established that they are from the DRC and that they would perceived to be a Tutsi or affiliated with Rwanda that they are likely to be entitled to refugee status based upon that point alone. Such an entitlement would not be lost merely because the decision maker was not satisfied as to the truth of their story.
10. The applicant then argued that where there was no finding by the RAT, the court should in accordance with the principles set out in Muia v. Refugee Appeals Tribunal  I IEHC 363, proceed on the basis that the applicant was accepted by the RAT as being such a person. In the alternative, the applicant submitted that the decision is vitiated by the failure of the Tribunal to make clear whether or not he was rejecting the claim. See Salim v. Refugee Appeals Tribunal (Unreported, High Court, Birmingham J., 15th September, 2010).
11. The applicant submitted that the RAT misunderstood its own jurisdiction and consequently failed to adjudicate upon the risk to the applicant if he returned to the DRC as a failed asylum seeker; the court having already ruled that this was within the remit of the RAT. See F.V. v. Refugee Appeals Tribunal  IEHC 268. The applicant further reasoned that the determination of the eligibility for refugee status entails a forward looking test which involves considering what would happen to the applicant if returned to the DRC.
12. The applicant submitted that should the court find that a jurisdictional error has occurred, it must return the matter to the RAT without further investigation, as well as the material was implausible or is not a matter for the court to decide. He submitted that the court should depart from the discretionary approach adopted in F.V. and instead followed the logic of the Supreme Court in Talbot v. An Bord Pleanála  IESC 46,  1 IR 375, which, in the opinion of the applicant made it clear that the High Court may not presume for itself how a statutory decision maker would assess an application where the application remitted to the statutory body following a successful judicial review.
13. It was argued by the applicant that having made a distinct claim that he feared persecution on the basis of his status as a failed asylum seeker, he was entitled to have that claim assessed by the RAT. Reliance was placed on S.I v. Minister for Justice  IEHC 165 (Unreported, High Court, Finlay Geoghegan J., 11th May, 2007) in that regard.
14. Finally, the applicant contended that it was only pure speculation on behalf of the Tribunal Member that led him to believe that the applicant was entitled to any legal status in South Africa arising from his marriage to a South African citizen.
The Respondent's Submissions
16. The respondents then stated that even if the Tribunal Member had erred in not considering whether the applicant would face a risk of persecution due to his status as a failed asylum seeker, the matter was an irrelevance as the evidence before the RAT was implausible, for the documents in question did not achieve the minimum level of materiality and credibility, a requirement articulated by F.V. Furthermore, the court in Okito v. Refugee Appeals Tribunal (Unreported, 16th July, 2010), already rejected the very material relied upon by the applicant in support of this assertion.
17. The respondents contended that the court was indeed allowed and entitled to review the country of origin information, previously ignored by the RAT in order to ascertain if it reached a certain level of applicability. The respondent cited numerous cases in support of this proposition- F.V. (above); Mutombo v. Refogee Appeals Tribunal (Unreported, McCarthy J., 2009); Y.L. v. Refugee Appeals Tribunal (Unreported, 7th October, 2009); and Okito (above). These cases, the respondents argued, established that in order to justify quashing a decision of the RAT on this basis, it will be necessary to demonstrate that cogent, authoritative and objective country of origin information exists to show that failed asylum seekers are being targeted for persecution. In addition, these places clearly stated that as well as this stated claim there must also be evidence of a Convention nexus as this type of claim could easily manufactured.
18. In relation to the South African issue, the respondents submitted that this decision was made in the context of credibility findings and if there was an error, it was a minor one that did not render the decision as a whole irrational.
(A) The risk of persecution based on ethnic origin or perceived connections to Rwanda
22. Turning to the examination at hand, it is quite clear to the court that at no point in the five page analysis of the decision did the Tribunal Member weigh the merits of this claim. I do not accept, as urged by the respondents that the applicants totally lack of credibility is commentary enough.
23. However, I also do not accept that it was correct to infer, as is proposed by the applicant that silence on this issue should amount to its inferred acceptance. Unlike Clark J. in Muia v. Refugee Appeals Tribunal  1 IEHC 363, where she held at para. 3.8 that she was "prepared to accept that where there is ambiguity as to the extent of a finding of lack of credibility then the applicant is entitled to the benefit of any such ambiguity", this is a substantive hearing not a leave application and therefore, I am not prepared to render "ambiguity" as evidence of acceptance of ethnicity or Rwandan affiliation, particularly in the light of a wholly unreliable applicant. Similarly, however, I am not prepared to infer, in the face of deafening silence that the applicant was found not to be of Tutsi extraction or Rwandan affiliation. If the Tribunal Member wished for the court to draw such a conclusion, then he should have be explicit in his remarks and stated that this as his conclusion.
24. The court would consider that the failure to grapple with the issue is similar to the failure as identified in the case of Salim v. Refugee Appeals Tribunal (Unreported, High Court, Birmingham J., 15th September, 2010) where Birmingham J. stated at p. 7 of the judgment:-
(B) The risk arising to the applicant by virtue of his position as a failed asylum seeker
29. Therefore, I accept the reasoning as outlined in F.V. and as supported by Okito both of which make clear the level of consideration that this Court can pay to this type of evidence. However, before elaborating on the substance of the decision, I would emphasise that this line of reasoning does not bring the court into conflict with the Supreme Court decision of Talbot.
30. In Talbot, the High Court judge attempted to predict the outcome of a planning permission decision, concluding that it had no prospect of success. In F V., the High Court was deciding whether the RAT had a duty to consider something, in respect of which no cogent evidence had ever been supplied to it and found that it did not. The discretion was exercised not on the basis that the applicant would ultimately fail, but on the basis that no cogent evidence had been put before the RAT to support the claim so as impose a duty to consider it.
31. Therefore, having faced the alleged conflict between Talbot and F.V. and having found there to be none, I will now turn to the manner in which this Court may assess the evidence.
32. In F V., Irvine J. expressed the view that failed asylum seekers are not, as a matter of course, members of a social group. Irvine J. recognised the possibility that this type of claim was open to abuse, and accordingly required that particularly cogent evidence would be required before the RAT decision would be quashed for a failure to consider it. The test outlined at para. 37 of F V., which I accept is as follows:-
35. In examining the evidence to ensure that it reaches a minimum level of materiality and credibility, this Court considered a number of documents including two articles extensively highlighted by the applicant in his submission: an Observer article by Ms. Diane Taylor entitled "torture fate awaits UK deportees" dated 16th September, 2007; and a news report by the Institute of Race Relations entitled "the grim fate that await those deported to Congo" dated 2nd December, 2004. It should be noted that Ryan J. in Okito, already considered the merits of those articles and concluded that:-
37. However, amongst the applicant's country of origin information was an article dated 24th August, 2006 which contained a UNHCR response to the credibility of a BBC report that had alleged a risk to failed asylum seekers returning to the DRC. This document stated that while they did not have evidence to suggest that there was systemic abuse of failed asylum seekers on being returned to Kinshasa Airport, it did advise against the forced returned to Kinshasa of persons of "Banyamulenge ethnic origin". Therefore, while it could not categorically be stated that all failed asylum seekers are at risk upon return to DRC, a category of them by virtue of their ethnicity are potentially at risk according to the UNHCR.
38. This Court does not know and does not speculate as to whether the applicant's ethnicity/Rwandan affiliation has any relationship to persons of "Banyamulenge ethnic origin" but strongly suspects that it does not. That, I feel, is not the point. In this case, the applicant in addition to the Observer and Institute of Race Relation articles which of themselves might not be sufficient had authoritative documentation which indicated that there was a risk to certain persons on return to the DRC by reason of their ethnicity/nationality. As the ethnicity/Rwandan affiliation of the applicant has not been yet adjudicated upon, the error by the RAT in declining to examine the consequences to the applicant of being forced to return to the DRC as a failed asylum seeker, was of such a nature of itself to warrant setting aside the decision in this case.
(C) Any benefit that the applicant is entitled to derive from the South African immigration system by virtue of his marriage to a citizen of that country
41. The court holds that the Tribunal Member went far beyond the question of the credibility of the applicant when he made a number of assumptions about South African immigration law. I say "assumptions" because the Tribunal Member never supported these conclusions in any substantive matter by reference to law or policy of South Africa.
42. It may be correct to state that the applicant is indeed entitled to such benefit but there is nothing in the decision to support this proposition and neither indeed was this matter put to the applicant at any stage. Accordingly, the court cannot presume to rely upon this decision and I can only deduce that the conclusion was unreasonably made.
43. The court does not accept that the decision was made in the context of the credibility findings or that it was such a minor error that did not render the decision as a whole irrational.