K -v- Refugee Appeals Tribunal
Neutral Citation: [ 2010] IEHC 312
High Court
Judgment was delivered on June 15th by Ms Justice Clark
Judgment
Leave was granted to seek a judicial review of the decision of Ben Garvey, a member of the Refugee Appeals Tribunal, to uphold a refusal of refugee status, specifically to address the question that the member was disproportionately influenced by flaws in the narrative given by the applicant's wife in her application.
Background
The applicant applied for asylum at Dublin airport on August 25th, 2004. His wife had previously applied for asylum at the airport, along with their two infant daughters, on July 6th that year. She said she was unaware at the time her husband was alive as she had not heard from him in 18 months. He said he was unaware they were in Ireland.
He was born a Catholic in 1967, and in 1998 joined the Bundu dia Kongo (BDK) an ethnically based spiritual and political movement seeking political autonomy for the Bas-Congo province of the Democratic Republic of Congo. He married in 1999 and his wife lived in Bas-Congo.
He worked in Kinshasa until February 2002, when he was arrested and accused of being a trouble-maker. His brothers secured his release through bribing a policeman and travelled to Luozi in Bas-Congo.
In July that year he was arrested during his participation in a march organised by the BDK, during which a number of people were killed. He was imprisoned where he said he was tortured, beaten and raped. He was moved to Kinshasa where he became ill and was hospitalised. His family bribed a doctor to help him escape and he travelled to Ireland via South Africa.
During his application for refugee status he gave details of the BDK organisation and the training he had undergone, and had a letter stating he was a member. His application was rejected by the Refugee Applications Commissioner on the grounds that country-of- origin information said all BDK prisoners had been released in 2003 following an amnesty.
He appealed on the grounds that there was evidence many prisoners were held in secret detention centres and the commissioner had failed to consider whether he faced persecution if he was returned to the DRC.
An oral hearing took place on September 3rd, 2007, at which husband and wife were heard separately. Ms Justice Clark said the nature and difference in quality of their evidence was evident, which may possibly be explained by difference in age and education, or because one or both were untruthful.
Mr Garvey rejected the appeal, outlining a number of issues of credibility, highlighting in particular inconsistencies between the applicant's evidence and that of his wife. Cumulatively, he said the issues of credibility put a question mark over whether in fact he was ever in the BDK. He also questioned the rape claim as he thought, wrongly, it had not been raised before. He rejected the documents and the medical report prepared by the specialist organisation SPIRASI.
Decision
Ms Justice Clark said that, had the wife's story not been so bizarre and inconsistent, there was a possibility the husband's narrative, considered on its own, would have been more credible.
She said that credibility findings are exclusively within the remit of the tribunal member as the decision-maker, and it was not for the court to conduct a fresh assessment of credibility.
The same member conducted the appeals of the husband and wife on the same day. The court harboured a doubt as to the possible unfairness to the husband in the process whereby his credibility was assessed, and it remained concerned that major discrepancies infected the evidence of both parties. Leave was therefore granted to challenge the way in which credibility of his membership of the BDK was assessed.
She said the claim that the member had failed to apply a forward-looking test as to the likelihood of the applicant being persecuted if he was returned had first been raised during the hearing, and was not in the statement of grounds, and therefore leave would not be granted on this ground. However, if the hearing of the substantive action was successful this matter should be addressed.
The full judgment is on courts.ie
Robert Haughton SC, and James Healy BL, instructed by Benen Fahy Associates Galway, for the applicant; Fiona O'Sullivan BL, instructed by the Chief State Solicitor, for the respondent