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Cite as: [2007] IEHC 377

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[2005 No. 635 JR]

Neutral Citation No: [2007] IEHC 377

BETWEEN

T.G.

APPLICANT

-and-

THE REFUGEE APPEALS TRIBUNAL (Tribunal Member Paul McGarry), THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND

RESPONDENTS

EX TEMPORE JUDGMENT OF MR JUSTICE BIRMINGHAM delivered on the 7th of October 2007

The applicant states that he was born in Lome on the 1st of September 1963 and that he is a national of Togo. The applicant arrived in Ireland on the 26th of January 2002 having travelled to Benin and France and then submitted an application for refugee status the following day.

In order to put the issues central to this hearing in context, it is helpful to refer briefly to the basic case made by the applicant in support of his claim for refugee status. He states that in 1993 he joined the Union for Forces of Change, UFC, an opposition party in Togo and thereafter was active in the party attending approximately two meetings a month as well as attending marches.

An election was held on the 21st of June 1998; and it is his case that he was active in support of the opposition candidate, Mr Gilchrist Olympio. The government candidate was declared the winner against a background of allegations of vote rigging. Demonstrations ensued as supporters of the opposition took to the streets. The opposition march was broken up by police using tear gas; and according to the applicant many people, of whom he was one, were arrested. He says that following his arrest he was brought to the police station where he was detained for some 24 hours. It is his case that during this period he was beaten with sticks and belts.

Mr. G. indicated that following his release he remained active in the party and indeed upped his level of activity - becoming a member of the UFC Committee, playing a role in relation to the security of political events as well as providing security for the party leaders.

Legislative elections were held on the 27th of October 2002. It appears that at least some opposition forces boycotted these elections and that the election results when declared were met with protests. The applicant states that he was arrested on the 9th of November 2002 at a march organized by opposition parties. He recites that the police blocked the march and that in the disturbances that followed that he was struck a number of times with batons. He says that he was arrested and that following his arrest he was brought to the Commissariat Centrale where his party card and his national ID card were confiscated. He remained in detention until December 18th of 2002. During this period of detention, he was interrogated on a number of occasions and he says was beaten on these occasions. On the 18th of December 2002 he succeeded in escaping. The circumstances of the escape are described by him as being that he and another prisoner were assigned to sweep the yard outside the police station in the early morning and at the time it was still foggy. A traffic accident occurred outside the station and the sole guard supervising the prisoners went over to the accident scene giving him an opportunity to escape - an opportunity which he took.

Following his escape from the police station, he went to a friend's house, who contacted his uncle, and he in turn was put in touch with an agent, a Mrs Johnson. Accompanied by Mrs Johnson, he left Togo on the 20th of December 2002, arriving in Ireland, as I stated, on the 26th of January 2002. On route he had stayed for a period in Benin and he had stopped over in France for a brief period of something of the order of an hour or so. Mr. G.'s application for asylum was considered in the ordinary way by the Office of the Refugee Applications Commissioner (ORAC). While the details of that procedure are not directly relevant, two elements of the decision are worth noting.

The ORAC report placed considerable emphasis on a document that had been generated by the Canadian Immigration and Refugee Board, Research Directorate, indicating that UFC members were not subjected to ill treatment. In addition, reference was made to the fact that the applicant had not submitted any valid documents from Togo to establish his identity. The relevance of these aspects of the ORAC decision is that the applicants went on to address these when appealing - specifically he submitted a country profile prepared by the US State Department which was critical of the human rights situation in Togo. In addition, the applicant submitted a document described as a document of certification, which was purportedly signed by Emmanuel Akitani Bob, the vice president of the UFC. This document referred to Mr. G's active membership of the UFC and that he had been forced to leave his native country as a result of his political activities.

The applicant submission:

The hearing of the Refugee Appeals Tribunal took place on the 16th of March 2005 and by letter dated the 23rd of March 2005 enclosing the decision, the applicant was informed of the facts that his appeal had been unsuccessful. On the 22nd of November 2006 leave to seek judicial review was granted by Mr Justice De Valera. In the context of the present proceedings, it should be noted that the applicant was refused leave on a number of grounds, including grounds related to the treatment of the credibility issue. The grounds on which leave was in fact granted were as follows:

(1) The tribunal member erred in law and acted ultra vires in failing to consider and/or properly and adequately consider and/or to give weight to all the country of origin information before him.

(2) The first named respondent erred in law and acted in breach of national and constitutional justice in failing to put to the applicant or give the applicant an opportunity to address the authenticity or otherwise the certificate of membership of the UFC dated the 28th of January 2004, submitted by the applicant in support of his plea.

In the course of argument these two points have been referred to in shorthand as the party membership certificate point and the country of origin information point. I will adopt that formula.

The party membership certificate: The tribunal member dealt with this issue at Paragraph 22 of the decision. He did with these terms:

"In addition, the applicant has provided no photographic identification documents in support of his claim. The applicant has provided a birth certificate and a nationality certificate and subsequent to the issue of the Section 13 report he allegedly obtained a document dated the 28th of January 2004, which purports to be a certificate of a member of the UFC. This document appears to be drafted in support of the applicant's claim for refugee status. Even if I were able to accept its authenticity, it is extraordinarily that it does not corroborate the applicant's suggestion that he was detained and tortured following the march of the 9th of November 2002."

On behalf of the applicant it is submitted - this paragraph which I have quoted - was central to the decision and in the circumstances that there was an obligation on the tribunal member to indicate the concerns that he would appear to have in relation to the document and to give the applicant an opportunity to address these concerns.

In advancing this argument the applicant has relied on Moysola v. RAC, a decision by Mr Justice Clarke on the 23rd of June 2005; another decision of Mr Justice Clarke, Idiakheua v. Minister, 10th of May of 2005; and Obatungi vs. Refugee Appeals Tribunal, a decision of Ms. Justice Finlay Geoghegan of the 7th of April 2006.

In truth there was little difference between the parties in relation to the legal principles that applied. Instead, the respondents dispute the significance of the paragraph. This emerges most clearly in the statement of opposition which states at Paragraph 4 of that document:

"The question of the authenticity of the letter dated 28th of January 2004 was not a matter of substance or significance to the tribunal." This argument on behalf of the respondent was pressed in written submissions where the point was firmly made that the tribunal did not make the finding that the letter was not authentic. The finding of the tribunal in regards to the letter was merely that it does not corroborate the applicant's account of his arrest."

I think it is noteworthy that Paragraph 22 would be complete and self-contained even if the controversial sentence had not been included. It seems to me that it is proper to interpret the focus of the paragraph as being the failure to produce photo identification and that the reference to the certificate was in the nature of an aside by way of contrast. This view is reinforced by the terms of Paragraph 23, which draws a contrast between the ability to access the membership certificate and the inability to produce documentary evidence by way of identification.

While I do not base this aspect of the judgment on this, I would add that the observations in relation to the contents of the document and indeed what it omits could hardly take the applicant, his advisors, or anyone else by surprise. The contrast between the views of Mr Bob as set out in the certificate which contains those references to intimidation, threats, arbitrary arrest and imprisonment and the views expressed by the same gentleman when interviewed by Canadian Immigration and Refugee Board clearly invited comment. In these circumstances this ground of challenge fails.

The country of origin issue: The Refugee Appeals Tribunal relied heavily, as indeed had the ORAC, in the first instance on material obtained from the Canadian Immigration and Refugee Board. The document is based on telephone conversation with the executive vice-president, Emmanuel Akitani Bob, of whom reference has already been made, on the 13th of January 2003.

The memo of the phone conversation with Mr Bob records him as saying he was not aware of a single incident in which a UFC member had been subjected to ill treatment by government authorities. However, he did say that during the period leading up to the 27th of October 2002 elections that the police arrested a few members of his party and took them into custody for a few days before finally releasing them. According to the UFC party leader; these militants were accused of being in possession of and distributing handouts that urged people not to take part in the 27 October 2002 elections.

As was inevitable very considerable reliance was placed on this report at first instance. In these circumstances the applicant decided to address the issue before the appeal by submitting alternative country of origin information, that which was most directly relevant being a 2004 US State Department country profile. There is no doubt that this report presents a bleak picture of the human rights situation in Togo.

The following extracts, which perhaps are the most relevant, give a flavour of the document, though these extracts are not comprehensive.

(I) "While civilian authorities generally maintained effective control of the security forces, there were a few instances in which elements of the security forces acted independently of government authority. Members of the security forces committed serious human rights abuses."

(II) "The Government human rights record remained poor. Though there were a few improvements, serious problems remained."

And then later that quotation continued:

"The government jailed and at times tortured political opponents and critics of the government. Prison conditions remained very hash, arbitrary arrests and detention were problems."

(III) "The law prohibits torture and physical abuse of prisoners and detainees. However, there were reports such practices occurred. Some former prisoners credibly claimed that security forces beat them during their detention."

(IV) "Security forces reportedly detained and tortured opposition members."

(V) "Security forces harassed, intimidated and beat journalists."

(VI) "Security forces forcibly dispersed demonstrations and injured people."

It should be noted that there was nothing in the report that suggests that these abuses were an aberration. On the contrary, the report indicates the year under discussion actually saw limited improvements in areas such as permitting access to prisons by NGO's. It appears that these improvements, such as they were, arose from contact between Togo and the EU.

The decision of the tribunal member makes no specific reference to the US State Department document. The decision does, however, recite at Paragraph 32:

"This decision has been reached in light of the oral evidence to the tribunal and having considered the notice of appeal and the grounds thereof, together with all the documentation, records and reports, including country of origin information that had been submitted to the tribunal.

There is, therefore, a specific statement that the country of origin information was considered. In that context the observations of Mr Justice Hardiman in GK vs. Minister (2002, 2 Irish Reports, 418) are very much in point. He comments:

"A person claiming that a decision-making authority has contrary to its expressed statement ignored representations which it has received must produce some evidence, direct or inferential, of that proposition before it can be said to have an arguable case."

Mr Justice Feeney JR in Banzuzi vs. Minister 2005/735/J.R., is firm in his view that there is no obligation on a decision maker to refer to every aspect of evidence or to identify all the documents within its written decision - a proposition which subsequently received endorsement of Ms Justice Dunne.

For my part I respectfully agree with the remarks of Mr Justice Hardiman and Mr Justice Feeney and Ms Justice Dunne. However, the applicant in the current case would suggest that there is indeed evidence of an inferential nature - to use the language of Mr Justice Hardiman - that the US State Department document has been overlooked. In support of that argument, he would point to certain language in the decision which he says is suggestive of US document being ignored or overlooked. He points to the observation at page 25 that it is noteworthy that none of the documents provided by the commissioner supports the applicant's contention that persons were arrested following the demonstration that took place on the 9th of November 2002.

Again in Paragraph 28 the tribunal member comments that the applicant has been unable to produce a single source to support his claim that he would be incarcerated on the grounds of his UFC membership when he returns to Togo. The member then contrasts this failure to produce a single document with the production of a telephone interview with Mr Bob produced by the commissioner.

Now, while it is true, as counsel for the respondent has said, that the document produced does not offer any direct evidence in relation to the events of November 2002, it does have a degree of relevance in that insofar as it suggests mistreatment and incarceration of opposition figures does in fact occur, it makes it easier to accept that the case being put forward by the applicant might be true. To that extent it might be said that the document supports his claim, though obviously the extent of that support and the weight to be attached to it is for the tribunal.

Notwithstanding some surprise at the language with its reference to "none of the documentation" and "not a single document," I am not persuaded that the tribunal member overlooked the State Department document. I am of that view not only because of the clear statement in the decision that the country of origin information was considered but also because of the circumstances by which the report came to be submitted to the tribunal. The Canadian Memo was heavily relied on by the ORAC, and this document was being produced in the appeal stage for the specific purpose of providing an alternative perspective to the Canadian view. In these circumstances it is very hard to believe that the document could have been overlooked. However, that is not the end of the matter. I have already indicated my complete agreement with the comments of Mr Justice Feeney and Ms Justice Dunne, that there is no obligation to refer to every item of evidence or every document. However, that is not to say there cannot be evidence or documents which do demand specific mention.

I am of the view that unusually there are factors present such that fair procedures require specific reference to the document from the State Department and an indication of the analysis which would lead to it being discarded. As I have already stated on more than one occasion, the document was submitted to the tribunal as a specific response to the Canadian document. If the tribunal member was proposing to allow the Canadian Memo to direct his decision, as it had the decision at first instance, fair procedures required that there should be some indication why the US State Department document was not seen as relevant. It need hardly be said that there were in fact a number of factors present which would have fully justified the tribunal member viewing the Canadian Memo as the more reliable, including the fact that it was specifically created for use in an immigration context whereas the US document is more of an all-purpose document. Furthermore, the views of a party leader, such a Mr Bob, that his members have not been subjected to arrest, might be thought to be particularly compelling.

I have reached the conclusion which I have that in the very particular circumstances of this case fair procedures require more and that a more specific and transparent analysis of the alternative country of origin reports is required. Proper consideration required that the consideration and analysis on this point be transparent. This was a case which required not only the document be considered but that it be seen to be considered. So on that basis, and subject to hearing counsel, I am disposed to remit the matter to RAT for further hearing.

I would just add a brief postscript. The documentation issue in this case - that is to say the Canadian Memo on one hand and the US State Department on the other - have already been the subject of consideration in the High Court. In Da Silveira vs. Refugee Appeals Tribunal, a decision of the 9th of July 2004, Peart J. was called on to consider the documents in the context of a new application. He had this to say:

"It also arguable in my view that in choosing to accept the version of facts contained in the Canadian Report concerning the treatment of UFC members as the correct one and thereby implicitly excluding the US State Department report and the Amnesty International report from his consideration of the applicant's credibility, the tribunal member erred in the manner in which he assessed credibility and that maybe he ought to have kept all the reports under consideration and conducted a weighing exercise. If he had done so, he might still have come to a conclusion that there was a 10 per cent chance or a real chance that the applicant had a well-founded fear. That is another possible error which is in my view arguable."

I have not overlooked the judgment of Mr Justice Peart. But in a situation where his observations were made in the context of a leave application and that against the background of arguments addressed to him emphasizing the distinction between a leave application, including the application on notice pursuant to Section 5 of the Illegal Immigrants (Trafficking) Act applied and a substantive hearing, I thought it better not to ground this judgment on the approach that he took. Clearly there can be an enormous chasm between what is arguable and can be the subject of substantive argument and what would ultimately be made out.

Approved: Birmingham J.