Ireland - High Court, 28 September 2010, R.M.K. (DRC) v Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform 2010 IEHC 367
| Country of Decision: | Ireland |
| Country of applicant: | Congo (DRC) |
| Court name: | High Court (Clark J.) |
| Date of decision: | 28-09-2010 |
| Citation: | 2010 IEHC 367 |
| Additional citation: | 2009 No.122 J.R. |
Keywords:
| Keywords |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Previous persecution
Description
"The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
Headnote:
This case concerned the consideration of expert medical evidence by asylum decision makers and the link with the assessment of credibility. The Court found that the Refugee Appeals Tribunal failed adequately to consider strong medical evidence relating to torture in assessing the overall credibility of the applicant’s refugee claim. The Court also found that it is incumbent upon the asylum decision maker to give reasons for rejecting the contents of medico-legal reports, especially those with a high probative value.
Facts:
Mr K was a citizen of the Democratic Republic of Congo (DRC). He came to Ireland in 2003 and sought protection as a refugee. He claimed that he had worked in a senior position at the State controlled national television station in DRC and had authorised the broadcast of television programmes that may have been perceived to be critical of the President, Joseph Kabila. This, he claimed, had led to his arrest, detention and torture for 63 days in the GLM detention centre in Gombe, Kinshasa. The Irish Refugee Applications Commissioner rejected Mr K’s refugee application on a number of grounds. A key finding was that country of origin information indicated that the GLM detention centre had closed in 2001. Mr K appealed this decision to the Refugee Appeals Tribunal with the benefit of a very strong medico- legal report from the specialist service for the victims of torture, SPIRASI, and reports from a consultant psychiatrist and from his GP. The reports indicated that he had scarring and marks on his body ‘highly consistent’ with torture and that he was he suffered from severe Post Traumatic Stress Disorder. There was also country of origin information submitted to the Tribunal which indicated that the GLM detention centre may have remained open as an unofficial detention centre in 2003 and/or that it had simply moved to a different building. The appeal was rejected on the basis, essentially, of the same credibility findings made by the Commissioner, who had not had the medical reports or the extra country of origin information.
Decision & reasoning:
The appeal decision was quashed by the High Court. The Court found: A) The Refugee Appeals Tribunal Member failed adequately to consider strong medical evidence relating to torture in assessing the overall credibility of the applicant’s refugee claim. B) The negative credibility findings made by the Tribunal Member, which related primarily to minor inconsistencies in Mr K’s narrative, were not so compelling nature so as to outweigh the medical evidence of torture. C) It is incumbent upon the asylum decision maker to give reasons for rejecting the contents of medico-legal reports, especially those with a high probative value. D) The country of origin information which indicated that the GLM was closed in 2001 was contradicted by other reports from Human Rights Groups. The credibility finding on this issue lacked the strength and clarity to outweigh the medical evidence of torture.
Outcome:
The appeal decision was quashed. The appeal was sent back to the Tribunal for re-consideration by a different Tribunal Member.
Subsequent proceedings:
None
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Canada - Vijayarajah v Canada (IMM 4538-98, 12 May 1999) |
| UK - Mibanga v Secretary of State of the Home Department [2005] EWCA Civ 367 |
Other sources:
UN Office of the High Commissioner for Human Rights, Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Istanbul Protocol"), 2004, HR/P/PT/8/Rev.1