High Court of Ireland Decisions

Judgment Title: M. -v- MJELR & Anor

Neutral Citation: [2008] IEHC 390


High Court Record Number: 2006 902 JR

Date of Delivery: 09 December 2008

Court: High Court

Introduction
The applicant is from Democratic Republic of Congo. He arrived in the State on 6th September, 2005 and applied for asylum. His application for refugee status was refused by the Refugee Applications Commissioner (hereafter the “RAC”) on 30th December, 2005. A notice of appeal dated 9th January, 2006 was lodged and an appeal hearing took place on 8th March, 2006. The appeal from the negative findings of the RAC was rejected by the Refugee Appeals Tribunal (hereafter the “RAT”) by decision dated 30th June, 2006. The applicant has brought judicial review proceedings to quash this decision of the RAT on three grounds:- a fundamental error of fact , a lack of credibility finding, and delay.

The delay issue was not pressed by counsel for the applicant at the hearing before this court in light of the fact that an affidavit explaining the reasons for the delay was filed shortly before the hearing in this court. The other two grounds will be addressed hereunder.

The relevant background is set out in the respondent’s outline of legal submissions and it is adopted here as a general statement of the applicant’s history before he came to this country, although some of the matters are disputed and these will become apparent later in this judgment.

“The applicant claims to be a school teacher. He is married with three children but they are still in Democratic Republic of Congo (“DRC”). He is a member of a teacher’s trade union and participated in a school strike in February, 2005. He is also a member and active in organisations associated with the Catholic Church. On 30th June, 2005 he took part in a public demonstration in the capital Kinshasa organised by the political opposition (UDPS) though he is not a member of that or any other political party. The Government sent troops to the demonstration and the applicant fled but says that the military spotted him going home. The following day, while he was away, two men in civilian clothes, but who he thinks were associated with the military, came to his house inquiring about him. He fled Kinshasa for Bas Congo where he stayed for ten days. During this period his uncle, who had the same name and profession as him was arrested by the authorities and held for two days. He was accused of being in the union and supporting the opposition but when he pointed out that they had the wrong man they let him go. This convinced the applicant that he must leave DRC. Some priests arranged his flight to Ireland (including providing him with a false passport) via Congo Brazzaville and France and one of them accompanied him to Dublin Airport where he retrieved the false passport”

“I have carefully considered all the matters required to be considered for the purposes of this appeal. After carefully considering these matters I am satisfied the applicant is not a refugee within the meaning of s. 2 of the Refugee Act 1996.

In the first instance the Tribunal put to the applicant that country of origin information showed the Teacher’s Union strike in the DRC had been settled and that the senior figures who had been arrested were released within a number of days. In this regard I do not consider it in any way plausible that the applicant would be targeted over and above other members of his union especially when the strike was settled and the senior figures involved had been released. This to my mind undermines the applicant’s credibility with regard to his claim.

It was put to the applicant by the presenting officer that if he was so well known by the security forces, why was his uncle, who had the same name and qualifications, arrested instead. The applicant stated maybe they were not well informed. The applicant was then asked that if he had such a high profile why did they make this mistake and the applicant stated that they had made the mistake. Having considered the matter I do not consider it plausible that if the applicant was known to the security forces and was targeted by them, they would have arrested the wrong person. This further undermines the applicant’s credibility with regard to his claim.

I have heard the applicant’s evidence with regard to his travel and the organisation of same. In this regard, I am entitled to have regard under s. 11(b) of the Refugee Act 1996 (as amended) that the applicant stated that the person who organised his journey to Ireland was a friend. The friend was assisted by a priest from Bas Congo who arranged for another priest to come to Ireland with the applicant. The applicant travelled through various countries on a false French passport with the aid of this priest. In this regard I find it completely implausible that the applicant would have been able to travel through the various countries on a false passport in the manner he has described.

Overall, I found the applicant to lack credibility with regard to his claim.” (At p. 9 – 10 on the decision)

“ (i) The assessment by the RAT of the credibility of an appellant and his/her story forms part of the decision making power conferred by the Refugee Act, 1996 and therefore, in accordance with the principles set out in East Donegal Cooperative Limited v. The Attorney General [1970] I.R. 317 such assessment must also be carried out in accordance with the principles of constitutional justice: Traore v. The Refugee Appeals Tribunal and Anor. (Unreported, Finlay Geoghegan J., 14th May, 2004).

(ii) Where the assessment of the credibility of an appellant places reliance upon a significant error of fact in a manner adverse to the applicant such error renders the decision invalid; Traore.

(iii) While the assessment of credibility is a difficult and unenviable task it is not permissible to place reliance “on what one firmly believes is a correct instinct or gut feeling that the truth is not being told”. Such a process 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.

Da Silveria v. The Refugee Appeals Tribunal and Others (Unreported, High Court, 9th July, 2004, Peart J.)

(iv) A specific adverse finding as to the appellant’s credibility must be based upon reasons which bear a legitimate nexus to the adverse finding. Kramarenko v. Refugee Appeals Tribunal and Anor. (Unreported, High Court, 2nd April 2004, Finlay Geoghegan J.) placing reliance on the decision of the United States Court of Appeals for the Ninth Circuit in Aguilera-Cota v. INS 914 F. 2d 1375, (9th Cir. 1990).

(v) A finding of lack of credibility must be based on a rational analysis which explains why, in the view of the deciding officer, the truth has not been told. Zhuchkova v. Minister for Justice, Equality and Law Reform and Anor. (Unreported, High Court, 26th November 2004, Clarke J.).” ( At pp. 6/7 of the unreported judgment)

Errors of Fact
In the second paragraph of the relevant part of the RAT decision I reproduce again what the Tribunal member stated:-

“In first instance the Tribunal put to the applicant that country of origin information showed the Teacher’s Union strike in the DRC had been settled that the senior figures who had been arrested were released within a matter of days. In this regard I do not consider it in any way plausible that the applicant would be targeted over and above other members of his union especially when the strike was settled and the senior figures involved had been released. This to my mind undermines the applicant’s credibility with regard to his claim.”

“It is now accepted that generalised oppressions may indeed give rise to refugee status, as Professor Hathaway makes clear. It is not necessary for a claimant to show that he is more at risk that anyone else in his group, if the group as a whole is subject to oppression. This is clearly right.” (At p. 462)

(i) The piece of country of origin information on which the Tribunal member relies for the fact that the teacher’s strike had come to an end (the MONUC Report) makes no reference whatsoever to the fact that “when the strike was settled and the senior figures involved had been released”. In fact, the Tribunal member confused another piece of country of origin information which referred to a political demonstration after which some persons were arrested but were released within two days. This was a fundamental error of fact which if it was not available to the Tribunal member would cause the conclusion to which he came to be seriously open to question.

(ii) The applicant states in his affidavit dated 24th July 2006 grounding his application for judicial review that:-

“At the hearing of my appeal, the Tribunal member did not put specifically to me or as (sic) me to address or respond to the MONUC Press Release or to any issue regarding it.” (At para. 17)

(iii) Given my findings in the previous two paragraphs I do not need to address the argument which the applicant advances on a point of law. In my view the argument is already won on this issue.

It is worth repeating in this context what Clarke J. said in Imoh v. Refugee Appeals Tribunal (Unreported, High Court, Clarke J., 24th June, 2005) where the court considered a similar situation where there had been a factual error made by the Tribunal member in that case in relation to country of origin information, Clarke J. when granting leave stated:-

“It is at least arguable that a similar situation applies where there is an error in relation to country of origin information which appears, on the face of the decision of the RAT, to have been of some significance in reaching conclusions adverse to the applicant.” (At p. 12 of unreported judgment)

“the conclusions of the Member of the Refugee Appeals Tribunal at reason five of his decision are based upon a mistake of fact and, were therefore arrived at by the application of unfair procedures.” (At p. 18 of unreported judgment)

It is my view that in failing to address these matters in greater detail and where the Tribunal member entertained serious doubts about the applicant’s account of the mistaken identity issue, his reservations should have been put more explicitly to the applicant to give him the opportunity to convince the member, before reaching his conclusion. Because of this and the significant errors of fact already proven, the decision of the Tribunal is unsafe.

Grant leave.