High Court of Ireland Decisions

Judgment Title: V. -v- Refugee Appeals Tribunal & Anor

Neutral Citation: [2009] IEHC 185


High Court Record Number: 2008 639 JR

Date of Delivery: 21 January 2009

Court: High Court

BETWEEN

F.V.

JUDGMENT OF MR. JUSTICE BIRMINGHAM delivered the 21st day of January, 2009.

Yesterday, I had indicated my intention to grant leave on ground and on ground only. I do not propose to elaborate on that to any great extent, save to put it in context.

The applicant claims that he is a national of Togo, and his account as he presents it is that he was born Zaire in 1967 but returned to Togo at a young age. He married and has two young children. On his account, he joined the UFC or the Union des Forces de Changement. His family live in a stronghold of the ruling party, the RPT, and he was known in the area as a member, activist and supporter of the opposition party. The applicant's difficulties are said to have arisen after the election of the first of June 2003, a disputed election. He says that he acted as a co-ordinator at a polling station in a suburb of Lomé and that there was massive election fraud. He claims that the UFC candidate actually won the election but that he was aware, as others were aware, that the ruling RPT Party would declare themselves winners. As a result, on the second of June 2003, before the winner was announced, his UFC superiors gave to him for distribution what has been described as tracts, and these stated that the leader of the UFC had actually won the election and appealed to people to come out on to the streets to protest before the results were announced. He says, the following day, a protest of about 100 people took place, that efforts were made to arrest the protesters and, when they tried to flee, they were kicked and beaten.

That day, four persons raided the applicant's house, took away his identity papers and as well as the remainder of the tracts that he had been engaged in distributing. They took him to a detention centre in Lomé, placed him in a small cell, stripped him to his underwear. He says that thereafter and, in particular, after the announcement that the RPT had won the election, he was interrogated about the source of these tracts. This involved being beaten every second day with batons, with a rope with steel ends and with an electric cable. He says that soldiers burnt his feet, using cigarettes, they poured water over his naked body, that they deprived him of food and medicine and that they administered electric shocks to his genitals. He says that he was one month at this detention camp until he was helped to escape by a guard who was a family friend and who was bribed to offer assistance by the applicant's sister. The applicant claims that the guard arranged for his escape during a football game that took place on the 13th of July 2003, that the guard opened his cell door, gave him a jersey and boots and instructed him to mingle with the spectators and players and then leave through the main gate.

Having escaped from the detention centre, the applicant went to Ghana, where he lived for some 15 days, received treatment for his injuries and then a priest helped to organise funds that would allow him to leave. He claims to have travelled with an agent by plane from Ghana to Ireland, the flight involving a 20-minute stopover in Amsterdam, and that the agent gave him a passport to get through immigration.

There are a number of aspects that emerge from the Tribunal decision to which the tribunal member attached significance, and they might be summarised perhaps as: first of all, the applicant's lack of knowledge about the national electoral commission of Togo, the so-called CENI, and also about the so-called Lomé Agreement; secondly, discrepancies as to whether protesters were killed on the third of June 2003 and as to what the applicant's state of knowledge was in that regard, a view formed by the Tribunal member that if the RPT wanted an opportunity to get the applicant, why was it that his neighbours in the RPT stronghold in which he lived did not report him to the authorities and why indeed was he not killed, even though there were several opportunities to do so. Next, that he failed to mention the fact that he was subjected to electrical shocks in his questionnaire and in the section 13 interview, that it was regarded as implausible that it was possible to escape, badly beaten as he was, that there were certain discrepancies in his account of how he escaped and who helped him, in particular that a colonel emerged well through the narrative. It is regarded implausible that a friendly guard would risk his career or life so as to help the applicant escape. The reference to a stopover for 20 minutes in Amsterdam was seen as implausible. So too is the fact that he was not detected at the airport travelling on a false passport. Certain documentation that he submitted were not viewed as having been authenticated. A SPIRASI report, to which I will be referring in a moment, was seen as not corroborating his evidence and also the fact the issue of refoulement was not within the remit of the RPT, and I refer to that aspect again.

Yesterday I summarised the challenges that are advanced and the issues raised as being essentially four in number, four depending on whether you see it as being an individual one or as a subset, four or five, they being the failure to adequately consider this SPIRASI medical report, an error of law with regard to the jurisdiction of the Tribunal, and that relates to the question of the Tribunal's entitlement of obligation to embark on consideration of the question of whether as a failed asylum seeker he was at risk of persecution; a failure to consider credibility in the context of country of origin information; a complaint that the Tribunal member engaged in impermissible speculation and conjecture; and as I say, perhaps as a subset of this, flawed treatment of the evidence in respect of electric shocks.

While the decision has been broken down in this regard, it is, I think, important to stress that what is required is that the decision be viewed in the round and that the overall impact of the decision should be considered. My colleague, Mr Justice Cooke, in a judgment given in the last couple of days, a case of Kiuni, where he gave judgment on the 13th of January, warned against the tendency to deconstruct decisions. It seems to me that that is a warning that is well made because all of these cases turn to a significant extent on their own facts. So, to take but one example, it may be that the manner in which medical evidence is considered in one situation, may be regarded as inadequate but comparable situation against a different factual background might be regarded as perfectly acceptable.

Having made those preliminary remarks, I will just say a few words about the individual criticisms. The Tribunal dealt with the issue of the medical evidence in the following terms. "The Tribunal is asked to accept the SPIRASI report as collaborating the applicant's evidence. A doctor does not usually assess the credibility of an applicant, and it would not be appropriate for him to do so. The Tribunal member has more material than the doctor and will have heard the evidence tested. A doctor will always accept at face value what an applicant tells him about his history. Therefore, the report, subject to exceptions, has a limited value in advancing the applicant's claim or in assessing his credibility. This application, taking into consideration the questionnaire, the interview notes and his testimony at his appeal, I believe that the applicant has fabricated a story to give credence to his allegation that he is fleeing persecution."

It seems to me that this Tribunal member was entitled to adopt the approach to the medical evidence that he did. The most that any physical examination can do is to record what was observable and comment on whether their physical signs are consistent with the account put forward. As we know, in commenting on the significance of medical evidence, a practice is to do so by reference to a scale that is set out in the Istanbul Protocol.

However, what a medical report cannot do is offer any assistance as to the circumstances in which the applicant has come by his injuries. So, marks on feet can be consistent with cigarette burns, but there is no assistance to be obtained as to whether those burns were inflicted in prison during the course of torture or whether they were caused to be inflicted for the purpose bolstering the applicant's account. The Tribunal member clearly believes, in this case, that it was just that which has happened. As the person who has observed the applicant give his evidence, he was best placed to meet that assessment, and accordingly I do not believe that the applicant's challenge on this ground is made out. It seems to me too that there is some substance in the argument made by Mr Moore, counsel on behalf of the respondent, that the medical report is significant as much for what it does not record as what it does. And certainly the findings set out seemed quite limited in the context of the account given of repeated severe torture.

The question of consideration of credibility in the light of country of origin information

The applicant's account of his escape was regarded a implausible, in that it was felt unlikely that a prison guard would risk his career, and indeed his life and liberty, by arranging an escape in return for the payment of a bribe. The applicant points to the fact that country of origin information indicates that bribery and corruption was widespread.

The situation here is that the Tribunal member has stated specifically that country of origin information was in fact considered by him. In the light of that specific statement, there is an onus on the applicant to overcome that assertion. That he has failed to do. It must be said that this was not a case where the country of origin information was of enormous significance. Notwithstanding the prevalence of corruption, the point made about the risks being undertaken by someone accepting a bribe to facilitate the release of a prisoner of considerable interest to the authorities, remains valid. It must also be said that sadly the fact that corruption and bribery is widespread in Togo, and indeed throughout much of that part of Africa, is something that is widely known. So, again, the challenge on this ground also fails.

Speculation and conjecture

A number of the findings are criticised as speculation and conjecture, including findings in relation to the manner of escape, the very capacity to escape, given the severity of the torture to which it is subjected, and the details of his travel to Ireland. It is trite law to say that a decision must not be based on speculation and that it must be grounded on something more than gut instinct. However, while the Tribunal member should not engage in speculation, he is not expected to leave his ability to reason outside the hearing room. He is fully entitled to draw inferences and make deductions. The standard instruction to a jury in a criminal trial, that they should avoid all speculation but are free to draw inferences, comes to mind. My view of the conclusions reached are in the nature of inferences drawn, as distinct from amounting to impermissible speculation.

The Tribunal member did, as I believe he was entitled to do, draw on his own experience of travelling by air. He was, to my mind, fully entitled to attach significance to the fact that, to his knowledge, there is no flight from Ghana to Dublin which involves a 20 minute stop-over in Amsterdam, or indeed, let it be said, any flight where the route involves Accra, Amsterdam, Dublin. Had the Tribunal member been in error in that regard, I have no doubt that would have been pointed out and the case would have been made that the decision was vitiated by a fundamental mistake of fact.

In relation to the treatment of the evidence in relation to electric shocks to the genital areas, I must say that it was not clear to me, when I first read the report of Dr Bulublia, that he was not referring to this issue in its report, albeit doing so without specifying the area to which the shocks were applied. However, when the subject was raised with the applicant, his response was to indicate that the doctor had been told about this, but that the doctor had chosen not to include it in the report, but had instead urged him to raise the issue at the appeal. The Tribunal member is criticised for not taking on board how difficult it can be for the victims of torture, more particularly, torture involving sexual abuse, to describe in detail what has happened.

Once again, it seems to me that the Tribunal member is uniquely advantaged in identifying the reason for the delay. Having seen and heard the applicant, he formed a clear view that the delay to disclosure and, as he saw it, the initial non-disclosure could not be explained by shyness or reticence. That was a conclusion that was open to him, and so I reject this ground of challenge also.

The issue relating to him being a failed asylum seeker

The Tribunal member dealt with this issue in these terms. "Ms Walsh, counsel on behalf of the applicant, submitted that the applicant is in fear of persecution if he is refouled. Under paragraph 5 of the Refugee Act, 1996 as amended, refoulement is not within the remit of the Tribunal."

I have to confess that this is the area I have had most difficulty with. In so far as the remarks can be interpreted as saying that when an asylum application has been rejected, what happens thereafter is not a matter for the Refugee Appeals Tribunal but for others. Then there is nothing objectionable whatever. However, in so far as he might seek to exclude the possibility that someone who fears persecution as a failed asylum seeker could be a refugee, the matter is more troubling. The case advanced on this ground, it may be said, was not a particularly strong one. I cannot find anywhere in the papers that the applicant himself has ever expressed fears about his position as a failed asylum seeker, as distinct from his position as a returned prison escapee. Neither does the applicant or indeed his advisers seemed to have addressed the question of whether any difficulties that might face a failed asylum seeker could be overcome by the simple expedient of a voluntary return. Indeed, it seems that the case that is made in this regard has its roots in research carried out on the internet by the applicant's lawyers.

However, the strength or weakness of the case, would not seen to have been considered at all, but rather the Tribunal member seems to have proceeded on the basis that he lacks jurisdiction. In this regard, it seems arguable that he was in error. Having advanced a case on a particular basis, the applicant was entitled to have it considered. In these circumstances, I believe that there substantial grounds for challenging the decision and accordingly I propose to grant leave on this limited basis only.