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Cite as: [2008] IEHC 192

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Neutral Citation: [2008] IEHC 192

THE HIGH COURT

2006 156 JR

BETWEEN

M. E.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

EX TEMPORE JUDGMENT OF MR. JUSTICE BIRMINGHAM delivered on the 27^thday of June 2008.

This is an application for leave to apply for judicial review of the decision of the Refugee Appeals Tribunal ("RAT") dated 22^nd November, 2005, which affirmed the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicant not be declared a refugee within the meaning of the Refugee Act 1996, as amended.

Factual Background

The applicant is a national of Sierra Leone. She is of Krio ethnicity, and is a Roman Catholic. She is now 27 years old, having been born on 16^th June, 1981. She speaks English and Krio. She applied for asylum in this State on 18^th July, 2005 on the basis of her claimed fear of persecution owing to the political opinions that she says were imputed to her. Her application was based on the following circumstances. The applicant says that she lived with her parents and brother near Makeni in Sierra Leone. She claims that in 2005, the Revolutionary United Front ("RUF"), a rebel army, visited their home on several occasions, attempting to forcibly recruit her father, who resisted their attempts. She says that on 5^th June, 2005, members of the RUF attacked their home and, owing to his refusal to join the RUF, beat her father to death. She says that on this day, she and her brother were abducted and taken to separate places.

The applicant says that the RUF took her to a small camp, where she claims to have been raped by three soldiers and beaten, over a five-day period. Of note is that she has produced a medical report compiled by a General Practitioner based in Cork that she says supports her claim that she was beaten. One of the primary bases for the applicant's challenge to the Tribunal Member's decision concerns her treatment of this report. I will, therefore, return to this issue.

The applicant says that after five days at the camp, the leader of the camp took her to an isolated spot with what she presumed was the intention to rape or kill her. She claims that she escaped by kicking him in the groin and running off. She says that she arrived at a road and got a lift to an area some distance from Makeni in which her mother's friend lived, and that this friend arranged for her to leave Sierra Leone. She says that with his help, she travelled by night to a port, from which she departed by ship for Ireland on 12^th June, 2005. She says that the ship stopped for a time in Liberia, but she did not disembark.

The applicant says that prior to her departure from Sierra Leone, photographs were taken of the injuries that she claims to have sustained in the camp. The photographs that the applicant has produced show a bloodied lip, which the Tribunal Member recorded. There are no photographs of the applicant's back or the injuries that she claims to have sustained in that area.

The applicant arrived in this State on 18^th July, 2005 and applied for asylum in the ordinary way. It is noteworthy that the applicant was pregnant upon arrival in Ireland, she says as a result of the rapes suffered at the RUF camp, and a baby was indeed born in February 2006. ORAC issued a negative determination in respect of the applicant, and she exercised her right of appeal to the RAT. An oral hearing took place on 27^th October, 2005. The RAT, in a decision dated 22^nd November, 2005, rejected the applicant's appeal.

Extension of Time

The applicant seeks an extension of time. There was a lapse of several weeks between the expiry of 14 days after the RAT decision and the issue of the present proceedings. As an explanation for this delay, counsel on behalf of the applicant points out that in the intervening period, which included the Christmas holidays, the applicant was awaiting legal advice from the Refugee Legal Service ("RLS"), which was not forthcoming until mid-January 2006. The applicant thereafter engaged the services of her present solicitor, who proceeded with due expedition to obtain the applicant's file and to issue the present proceedings.

While one can identify a day here and a day there where the applicant might have acted more speedily, I am satisfied that she was anxious to institute proceedings from the time when she received the RAT decision. Thereafter she moved with reasonable expedition and certainly, once she engaged the services of her current solicitor, matters moved with very considerable expedition indeed. In the circumstances, I am satisfied that there are good and sufficient reasons for extending time, and accordingly I do so.

The RAT Decision

As noted above, the RAT rejected the applicant's appeal in a decision dated 22^nd November, 2005, which decision is the subject of the present challenge. The question of the assessment of credibility was central to the decision of the Tribunal Member. In that regard, the Tribunal Member identified a number of elements which led her to conclude that the applicant's claims were not credible.

So, the fact that the applicant did not known whether the house to which she escaped was north, south, east or west from her home, nor could she name the district in which the house in question was located, nor could she identify any district it was near, was seen as raising credibility issues. The Tribunal Member also stated that she found it incredible that the applicant could not explain satisfactorily how she knew that the driver from whom she hitched a lift was going in the direction of her mother's friend's house.

The applicant's account of not knowing to what port she travelled was likewise regarded as incredible. In both instances, the Tribunal Member in forming the view that she did would seem to have been influenced by the applicant's educational background, her profile and her competence at the hearing in explaining the case.

The Tribunal Member was also influenced by the fact that the applicant could not describe the countryside between her home district and the capital. That she could not say whether the ship on which she travelled docked anywhere other than Liberia, and that she could not say at what port she disembarked in Ireland, even though English was her mother-tongue, was also found incredible.

Again, the applicant's account of destroying the documentation she had in her possession following her arrival in Ireland was found to be implausible. Also, in relation to her entry into this State, the Tribunal Member was influenced by what was seen as a material inconsistency as to how entry to the State was achieved. In the course of the ORAC interview, the applicant said that she did not go through Immigration at all, while at the RAT oral hearing she said that she had presented the documentation in her possession to Immigration at the port. It may be noted that this discrepancy does indeed exist.

Still focusing on the question of documents, the fact that the applicant said that she could not obtain documentation since her arrival in Ireland because she was not in contact with her mother, and could not write to her mother's friend as she did not know the address, was rejected.

The Tribunal Member additionally considered it incredible that the applicant would not know if money was paid to secure her trip on the ship, and consequently questioned whether the applicant sought asylum in the first safe destination country.

Of particular importance is that the Tribunal Member also considered implausible the applicant's account of her escape from the RUF camp, that an RUF leader would have brought her to an isolated spot when by her own admission he could have raped her any anytime, that he would not have followed her, that she might have been able to out-run him, and that he would not have shot her, given that in the Tribunal Member's view, he would have been armed.

The final matter with which the Tribunal Member took issue was that upon arrival at the house of her mother's friend, the applicant was unable to find out about the well-being or otherwise of her mother, or confirm her father's death, or seek State protection as a first option before departing her country of origin. The Tribunal Member had regard to the cumulative effect of these observations, and concluded:-

"In the foregoing circumstances it is considered that the Applicant offered to the Tribunal a rehearsed contrived story made to fit well documented Country of Origin Information in relation to Sierra Leone which information, of itself, is not any way doubted but rather as it applies to this Applicant is doubted."

The Issues in the Case

There are three primary bases for the applicant's challenge to the RAT decision, which I would summarise as follows:-

a. The Tribunal Member's treatment of the Medical Report, and

b. The Tribunal Member's assessment of Country of Origin information, and

c. That the Tribunal Member engaged in impermissible speculation and conjecture.

At the outset, I would observe that it is at least open to argument – particularly in the light of the comments of Fennelly and McGuinness JJ. in A.O. & D.L. v The Minister for Justice, Equality and Law Reform [2003] 1 IR 124, albeit obiter - that the standard of judicial scrutiny set out in O'Keeffe v An Bord Pleanála [1993] 1 IR 39 javascript:; may fall short of what is likely to be required for the protection of fundamental human rights. It is therefore at a minimum arguable, at leave stage, that this Court should approach judicial review of the decisions of the RAT with 'anxious scrutiny'.

An analogous approach has been taken by a number of High Court judges, including Laffoy J. in Gritto & Ors v The Minister [2004] IEHC 119; Clarke J. in Gashi v The Minister for Justice, Equality and Law Reform & Ors [2004] IEHC 394 and Idiakheua v The Minister for Justice, Equality and Law Reform & Anor [2005] IEHC 150; MacMenamin J. in Itaire v The Minister [2006] IEHC 136; and McGovern J. in Ogunyemi v The Minister [2006] IEHC 203. In this regard, I also note also the judgment of the European Court of Human Rights in Vilvarajah & Ors v The UK (judgment of October 30 1991), which appears to approve the application of rigorous scrutiny to cases involving fundamental rights.

As I have noted elsewhere, our legal tradition has long been to approach all cases involving fundamental human rights with particular care and caution. This approach will be applied to the judicial review of asylum and immigration decisions, and will, of course, be expected of other bodies that have functions in this area.

(a) The Medical Report

On the day of the oral hearing at the RAT, the applicant submitted a medical report from a General Practitioner in Cork, Dr. Donal O'Donovan. It appears that the applicant had attended the doctor for the purpose of obtaining a medical report, on the suggestion of her solicitor. The report in question is quite brief. It recites the applicant as stating that she was tortured and raped by RUF rebels on 5^th June, 2005, in Sierra Leone, and that she was forcibly taken from her home to a camp where she was beaten and raped. The report then continues as follows:-

"Upon examination: A 5.5 cm x 0.5 cm and a 3 cm x 0.5 cm linear scars to the right of the midline in the upper lumbar region of the back, a 2 cm x 0.5 cm scar in the left low back region and 1 cm by 0.5 cm scar over the sacrum. All of these scars are consistent with lacerations caused by a beating with a thin rod or stick. A 4 cm x 2 cm scar in the left upper lumbar region."

In summary, the report is recording the presence in all of five scars, of which four are stated to be consistent with lacerations caused by a beating with a thin rod or stick.

At the RAT oral hearing, submissions were made in relation to the significance of the report. Counsel on behalf of the applicant submitted that the RAT should consider the report because, together with the photos of her face taken in Sierra Leone and the applicant's testimony, it constituted the only evidence as to the injuries she had sustained. The Tribunal Member was urged to give the applicant the benefit of the doubt in that regard.

In response, the Presenting Officer submitted that the report was not in a specialist format (which I take to mean that it was not a consultant's report), nor was it a report from SPIRASI, nor does it deal with any element of torture or persecution. The reference to SPIRASI refers to the humanitarian NGO that works in Ireland with refugees and asylum seekers, with special concern for survivors of torture. When reporting following a medical examination, it is their practice to report in terms of the Istanbul Protocol, which puts forward a scale to assist in the assessment of the significance of medical reports.

The Tribunal Member commented that the medical report was "of no probative value, in the sense" - as she put it – "that it does not assist as to how the Applicant received the injuries as therein specified". She went on to note that there was no photographic record of the applicant's back injuries. In the present proceedings it was submitted on behalf of the applicant that the report was a document of real importance and that it was not open to the Tribunal Member to take the view that the report was of no probative value, certainly not without providing a clear and reasonable explanation for that conclusion.

In my view, the assessment of whether a particular piece of evidence is of probative value, or the extent to which it is of probative value, is quintessentially a matter for the Tribunal Member. In this instance, there were a number of factors present which could have led the Tribunal Member to the conclusion that she reached. It appears on the evidence of the photos taken of the applicant's face that there was an interest in obtaining a photographic record of her injuries before she departed from her mother's friend's house. This makes strange the failure to record the back injuries, if there was anything to record. Again, given that the significance of physical evidence seems to have been appreciated from the earliest point in time, it might seem surprising that there was no mention of visible physical injuries when the ORAC Questionnaire was being completed, or at ORAC interview stage. In addition, the injuries might seem relatively limited, having regard to the applicant's account of having been tortured and spending five days in a torture camp. In the course of the hearing in the present proceedings, I drew attention to a section of the ORAC interview notes which might be seen as suggesting that cigarettes had been used on the applicant, though by the RAT stage it was clear that she was saying that she had observed others who had been tortured in this fashion.

The medical report spoke of the injuries as being "consistent with" a beating with a light rod or stick. If one follows the approach of the Istanbul Protocol, this would mean that while the injuries were "consistent with" such a beating, there are also many other possible causes (see paragraph 186). Even if one accepted that the injuries were caused by the method described (i.e. a beating with a light rod or stick), the report offers no assistance as to where, when and in what circumstances the injury was caused. The report is indicating that it was possible that the injuries were caused as described but does not elevate that to a probability.

The applicant has placed particular emphasis on a decision of Gilligan J. in Khazadi v The Minister for Justice, Equality and Law Reform & Anor (transcript of ex tempore judgment, High Court, April 19 2007). However in my view that case is of limited assistance to the applicant in the present case. First of all, the medical evidence was of an altogether different quality and quantity and, as pointed out by Gilligan J., it was noteworthy that the doctors had specifically requested that their findings be taken into account. More fundamentally, the Tribunal Member had, in that case, reached an adverse finding before going on to consider the medical evidence. In contrast, in the present case the Tribunal Member had the assistance of submissions on the medical report, was clearly aware of its possible significance, weighed it, but concluded that it was not of probative value.

The non specific nature of the medical evidence in this case may be contrasted with the situation in Simo v The Minister for Justice, Equality and Law Reform & Anor [2007] IEHC 305, where the applicant was claiming to have been subject to 'Falanga' on a daily basis, during which the soles of his feet were whipped. Country of Origin information indicated that this practice did indeed occur in Cameroon, and the medical report from SPIRASI recorded injuries to his feet as being 'highly consistent' with the applicant's account. Other injuries, too, were regarded as consistent with, and in some cases highly consistent, with various other forms of abuse described.

In all the circumstances, I do not believe that criticisms in relation to the medical report are made out.

(b) Assessment of Country of Origin Information

While the Tribunal Member's decision is primarily based on adverse findings in relation to credibility, the question of the availability of state protection is also canvassed. Country of Origin information is relevant to both aspects. Indeed the main significance of the issue of state protection in the decision is that its availability was seen as going to the question of credibility, as it was not seen as likely that someone would decide to depart the State as a first response. The Tribunal's Member's reliance on Country of Origin information is criticised. In particular its use to support the view that state protection was available or that the applicant should have first sought state protection is said to be impermissible.

This is a case where there was quite an amount of Country of Origin information, including a Human Rights Watch country report (January 2005), a U.S. State Department Report 2004 (published February 2005), the Twenty-fourth report of the Secretary-General on the United Nations Mission in Sierra Leone (December 2004), a 'Freedom in the World' report (September 2004), and a U.K. Home Office country report (April 2004), though this last document largely consists of quotations and extracts from the other sources. In the course of argument, the applicant has pointed to a number of specific sentences and paragraphs which he says were not taken into account and are not reflected in the Tribunal Member's decision. These include a sentence from the U.S. State Department report as follows:-

"Former RUF rebels continued to hold some persons, including women and children, as forced or common law spouses or labourers. Some women reportedly remained with their captors due to intimidation by their captors and a lack of viable options."

However, far from that sentence assisting the applicant, in my view, the sentence in context offers no support at all. It immediately follows a sentence as referred to by the Tribunal Member which stated:-

"There were no reports of politically motivated disappearances."

Read in sequence, these sentences make clear that in the year under consideration in the report, i.e. 2004, there were no reports of politically motivated disappearances whether at the hands of the RUF rebels or anyone else.

While the applicant has drawn attention to the fact that the US State Department report states that there were no reports of action taken in respect of reported cases of rape allegedly committed by RSLAF soldiers (the Sierra Leone armed forces) in previous years, what is striking is the absence of any suggestion of abductions or rapes by RUF rebels at this time.

The submissions contained in the material have highlighted the criticisms of the SLP (the police force) and indeed it emerges that the SLP is a force that is seen as corrupt, under-resourced and under-manned, as its strength had fallen significantly during the civil war as officers were killed or fled their post. However, again that is not the complete picture as there are indications that the Inspector General was meeting with some success in his efforts to improve the situation during 2004, the year under review in the report.

The applicant has drawn attention to the UN Secretary's General comment that Sierra Leone is "vulnerable to future instability" given continued insecurity within the sub-region. This insecurity is specifically referred to by the Tribunal Member in her decision. Indeed, it is worth noting that the opening sentence of the paragraph from which the extract relied upon by the applicant is taken reads that:-

"The human rights situation has vastly improved since Sierra Leone's devastating civil war was officially declared over in January 2002."

In a situation where, as here, there is a significant volume of Country of Origin information, it is possible by selective quotations to find support for almost any proposition. I have read all of the Country of Origin information and what emerges is generally positive. Indictments have been presented against former RUF leaders before the Special Court for Sierra Leone. A Truth and Reconciliation Commission modelled on that in South Africa has been established. Multi-party elections have been held at presidential, parliamentary and local level, which many observers regarded as free and fair, notwithstanding reports of significant and widespread electoral abuses. All the reports are unanimous in recording substantial progress since the ending of the civil war. That is not to say that there are not enormous problems, because there are, most notably appalling poverty and associated with this continuing corruption. This has had its effect on the SLP, which as I have pointed out is undermanned, under-resourced and regarded as corrupt. However, even here progress is recorded with reference to anecdotal reports that in the period under review, police behaviour improved dramatically; the Lebanese business community was no longer subject to harassment and extortion, and there were no makeshift road blocks to extort money.

The Tribunal Member has been properly cautious in her reliance on Country of Origin information, pointing out that no reliance on such information can objectively exclude what is put forward by an individual asylum seeker. Having read the Country of Origin information, I can find no legitimate basis whatever for criticising the approach of the Tribunal Member to the material. The most striking fact to emerge is that there is not a hint of a suggestion anywhere that in 2004 the RUF were still active forcibly enlisting recruits against their will. Nor is there any suggestion whatever that the police is "under the RUF", as claimed by the applicant in her interview. I am of the view that the Tribunal Member's treatment of the matter has been fair and balanced. I therefore reject this ground of the challenge.

(c) Speculation and Conjecture

The Tribunal Member has been criticised as engaging in speculation or conjecture in relation to the risk of persecution facing the applicant if returned to Sierra Leone. There is no doubt that a Tribunal Member should not base an adverse credibility finding on speculation or conjecture. As noted by Peart J. in Da Silveira v The Refugee Appeals Tribunal [2004] IEHC 436:-

"One's experience of life hones the instincts, and there comes a point where we can feel that the truth can, if it exists, be smelt. But reliance on what one firmly believes is a correct instinct or gut feeling that the truth is not being told is an insufficient tool for use by an administrative body such as the Refugee Appeals Tribunal. Conclusions must be based on correct findings of fact."

On the other hand, a Tribunal Member is not expected to accept without challenge or question every account given to him or her. Rather, he or she is expected to weigh, assess, analyse and draw inferences. I have already set out in some detail the findings of the Tribunal Member in relation to credibility. From that, it will be apparent that this was a considered conclusion and went well beyond a mere gut feeling. Instead, the Tribunal Member's findings on credibility seem to have been arrived at following the accumulation up to some ten factors that she saw as being relevant. This include assessments reached in relation to the applicant's departure from Sierra Leone and arrival in Ireland and her application for asylum, which of course were matters to which the Tribunal Member was obliged to have regard, by statute. In addition, conclusions were reached about the applicant's account of her escape from the camp, making her way to the house of her mother's friend and being assisted to leave the country. The Tribunal Member has approached these issues with caution. She reminds herself that some extraordinary circumstances of escape are plausible but finds the account given by the applicant to be implausible. The applicant's account, it will be recalled, was that she was taken from the camp, where rape was common place, to a location some distance away so that the camp leader could rape her but she was able to escape by kicking him in the groin and running away, and that she reached a road and hitched a lift to the home of a friend of her mother, notwithstanding that she did not know in what direction the house was.

I am forced to conclude that in complaining that the decision was based on conjecture, what the applicant is really saying is that the Tribunal Member should not have reached the view that she did. While the Tribunal Member may have arrived at conclusions that are unwelcome to the applicant, this is not a court of appeal. In the light of the foregoing, I am satisfied that the conclusions reached by the Tribunal Member were ones which were open to her, and in the circumstances I am bound to refuse leave.

Approved: Birmingham J.